Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Proposed Rules 65431 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 9 and 122 

[EPA–HQ–OW–2011–0188; FRL–9481–7] 

RIN 2040–AF22 

National Pollutant Discharge 

Elimination System (NPDES) 

Concentrated Animal Feeding 

Operation (CAFO) Reporting Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA co-proposes two options 

for obtaining basic information from 

CAFOs to support EPA in meeting its 

water quality protection responsibilities 

under the Clean Water Act (CWA). The 

purpose of this co-proposal is to 

improve and restore water quality by 

collecting facility-specific information 

that would improve EPA’s ability to 

effectively implement the NPDES 

program and to ensure that CAFOs are 

complying with the requirements of the 

CWA. Under one co-proposed option, 

EPA would use the authority of CWA 

section 308 to obtain certain identifying 

information from all CAFOs. Under the 

other option, EPA could use the 

authority of CWA section 308 to obtain 

this information from CAFOs that fall 

within areas that have been identified as 

having water quality concerns likely 

associated with CAFOs (focus 

watersheds). However, EPA would make 

every reasonable effort to assess the 

utility of existing publicly available data 

and programs to obtain identifying 

information about CAFOs by working 

with partners at the Federal, state, and 

local level before determining whether 

an information collection request is 

necessary. This information would 

allow EPA to achieve more efficiently 

and effectively the water quality 

protection goals and objectives of the 

CWA. EPA also requests comment on 

three alternative approaches to gather 

information about CAFOs, which could 

be used to achieve the objectives of this 

proposed action in protecting water 

quality. 

DATES: Comments on this proposed 

action must be received on or before 

December 20, 2011. EPA plans to hold 

two Webinars in November, 2011 to 

provide an overview of, and answer 

questions about, the proposed rule 

requirements. 

ADDRESSES: Comments: Submit your 

comments, identified by Docket ID No. 

EPA–HQ–OW–2011–0188, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: ow-docket@epa.gov, 

Attention Docket ID No. EPA–HQ–OW– 

2011–0188. 

• Fax: (202) 566–9744. 

• Mail: Water Docket, Environmental 

Protection Agency, Mailcode: 28221T, 

Attention Docket ID No. EPA–HQ–OW– 

2011–0188, 1200 Pennsylvania Ave., 

NW., Washington, DC 20460. In 

addition, please mail a copy of your 

comments on the information collection 

provisions to the Office of Information 

and Regulatory Affairs, Office of 

Management and Budget (OMB), Attn: 

Desk Officer for EPA, 725 17th St., NW., 

Washington, DC 20503. 

• Hand Delivery: EPA Docket Center, 

EPA West, Room 3334, 1301 

Constitution Avenue, NW., Washington, 

DC, Attention Docket ID No. EPA–HQ– 

OW–2011–0188. Such deliveries are 

accepted only during the Docket 

Center’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OW–2011– 

0188. EPA’s policy is that all comments 

received will be included in the public 

docket without change and could be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means that EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through http://www.regulations.gov 

your e-mail address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment because of technical 

difficulties and cannot contact you for 

clarification, EPA might not be able to 

consider your comment. Electronic files 

should avoid the use of special 

characters, any form of encryption, and 

be free of any defects or viruses. For 

additional information about EPA’s 

public docket visit the EPA Docket 

Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Water Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC 20004. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding Federal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the Water 

Docket is (202) 566–2426. 

Webinar: EPA plans to hold two 

Webinars in November, 2011 to provide 

an overview of, and answer questions 

about, the proposed rule requirements. 

Information about how to register and 

access the Webinar can be found on 

EPA’s Web site at http://cfpub.epa.gov/ 

npdes/afo/aforule.cfm no later than 

October 24, 2011. 

FOR FURTHER INFORMATION CONTACT: For 

additional information contact, Becky 

Mitschele, Water Permits Division, 

Office of Wastewater Management 

(4203M), U.S. Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460; telephone 

number: (202) 564–6418; fax number 

(202) 564–6384; e-mail address: 

mitschele.becky@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

B. What should I consider as I prepare my 

comments for EPA? 

C. Under what legal authority is this rule 

proposed? 

II. Background 

A. The Clean Water Act 

B. Environmental and Human Health 

Impacts of CAFOs 

C. United States Government 

Accountability Office Report 

D. United States Office of Management and 

Budget Report 

E. Litigation Regarding the 2008 Revised 

NPDES Permit Regulation and Effluent 

Limitations Guidelines for CAFOs in 

Response to the Waterkeeper Decision 


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III. This Proposed Action 

A. Proposed Action Overview and 

Objectives 

B. CWA Section 308 Data Collection and 

EPA’s Approach Toward Collecting 

Facility-Specific Information From 

CAFOs Through Rulemaking 

C. Option 1 Would Apply to All CAFOs 

1. What information would EPA require as 

part of an information gathering survey 

for CAFOs and why is EPA proposing to 

require this information? 

2. What information would EPA not 

require as part of the collection request 

survey for CAFOs? 

3. Who would be required to submit the 

information? 

4. When would States that choose to 

submit the information be allowed to 

provide the information to EPA and 

when would CAFOs be required to 

submit the information to EPA? 

5. How would CAFOs submit the 

information to EPA? 

6. How would States submit the 

information to EPA? 

D. Option 2 Would Apply to CAFOs in a 

Focus Watershed 

1. How would EPA identify a focus 

watershed? 

2. Considerations When Determining 

Whether a Focus Watershed Meets the 

Criteria for Water Quality Protection 

3. How would EPA identify CAFOs from 

which additional information is needed? 

4. What information would EPA require as 

part of an information gathering survey 

for CAFOs in a focus watershed? 

5. How would EPA geographically define 

a focus watershed? 

6. How would EPA inform CAFOs of their 

responsibility if they were required to 

respond to an information request? 

7. When would CAFOs in a focus 

watershed be required to submit the 

information to EPA? 

8. How would CAFOs in a focus watershed 

submit information to EPA? 

E. Failure To Provide the Information as 

Required by This Proposed Action 

F. Alternative Approaches To Achieve 

Rule Objectives 

1. Use of Existing Data Sources 

2. Alternative Mechanisms for Promoting 

Environmental Stewardship and 

Compliance 

3. Require Authorized States to Submit 

CAFO Information From Their CAFO 

Regulatory Programs and Only Collect 

Information From CAFOs if a State Does 

Not Report 

IV. Impact Analysis 

A. Benefits and Costs Overview 

B. Administrative Burden Impacts 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. Does this action apply to me? 

This proposed rulemaking would 

apply to concentrated animal feeding 

operations (CAFOs) as defined in the 

National Pollutant Discharge 

Elimination System (NPDES) 

regulations at 40 CFR 122.23(b)(2), 

pursuant to section 502(14) of the Clean 

Water Act (‘‘CWA’’). An animal feeding 

operation (AFO) is a CAFO if it meets 

the regulatory definition of a Large or 

Medium CAFO (40 CFR 122.23 (b)(4) or 

(6)) or has been designated as a CAFO 

(40 CFR 122.23 (c)) by the NPDES 

permitting authority or by EPA. The 

following table provides the size 

thresholds for Large, Medium and Small 

CAFOs in each animal sector. 

TABLE 1—SUMMARY OF CAFO SIZE THRESHOLDS FOR ALL SECTORS

Sector Large Medium 1 Small 2

Cattle or cow/calf pairs ........................................... 1,000 or more ............................... 300–999 ........................................ Less than 300. 

Mature diary cattle .................................................. 700 or more .................................. 200–699 ........................................ Less than 200. 

Veal calves ............................................................. 1,000 or more ............................... 300–999 ........................................ Less than 300. 

Swine (weighing over 55 pounds) .......................... 2,500 or more ............................... 750–2,499 ..................................... Less than 750. 

Swine (weighing less than 55 pounds) .................. 10,000 or more ............................. 3,000–9,999 .................................. Less than 3,000. 

Horses .................................................................... 500 or more .................................. 150–499 ........................................ Less than 150. 

Sheep or lambs ...................................................... 10,000 or more ............................. 3,000–9,999 .................................. Less than 3,000. 

Turkeys ................................................................... 55,000 or more ............................. 16,500–54,999 .............................. Less than 16,500. 

Laying hens or broilers (liquid manure handling 

system).

30,000 or more ............................. 9,000–29,999 ................................ Less than 9,000. 

Chickens other than laying hens (other than a liquid manure handling system).125,000 or more ........................... 37,500–124,999 ............................ Less than 37,500. 

Laying hens (other than a liquid manure handling 

system).

82,000 or more ............................. 25,000–81,999 .............................. Less than 25,000. 

Ducks ( other than a liquid manure handling system).30,000 or more ............................. 10,000–29,999 .............................. Less than 10,000. 

Ducks (liquid manure handling system) ................. 5,000 or more ............................... 1,500–4,999 .................................. Less than 1,500. 

Notes: 

1 May be designated or must meet one of the following two criteria to be defined as a medium CAFO: (A) Discharges pollutants through a 

man-made device; or (B) directly discharges pollutants into waters of the United States which pass over, across, or through the facility or otherwise come into direct contact with the confined animals. 40 CFR 122.23(b)(6). 2 Not a CAFO by regulatory definition, but may be designated as a CAFO on a case-by-case basis. 40 CFR 122.23(b)(9). 

That table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this proposed rulemaking. 

The table lists the types of entities that 

EPA is currently aware of that could be 

regulated by this action. Other types of 

entities not listed in the table could also 

be CAFOs. The owners or operators of 

AFOs that have not been designated and 

that do not confine the required number 

of animals to meet the definition of a 

Large or Medium CAFO are not required 

to submit information. 

To determine whether your operation 

is a CAFO, you should carefully 

examine the applicability criteria in 40 

CFR 122.23. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 


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B. What should I consider as I prepare 

my comments for EPA? 

1. Tips for Preparing Your Comments 

When submitting comments, 

remember to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency 

might ask you to respond to specific 

questions or organize comments by 

referencing a Code of Federal 

Regulations (CFR) part or section 

number. 

• Explain why you agree or disagree, 

suggest alternatives, and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

2. Submitting Comments to EPA 

Direct your comments to Docket ID 

No. EPA–HQ–OW–2011–0188. EPA’s 

policy is that all comments received 

will be included in the public docket 

without change and could be made 

available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

The http://www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means that EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an e-mail 

comment directly to EPA without going 

through http://www.regulations.gov 

your e-mail address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment because of technical 

difficulties and cannot contact you for 

clarification, EPA might not be able to 

consider your comment. Electronic files 

should avoid the use of special 

characters, any form of encryption, and 

be free of any defects or viruses. For 

additional information about EPA’s 

public docket, visit the EPA Docket 

Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

3. Submitting Confidential Business 

Information 

Do not submit CBI information to EPA 

through http://www.regulations.gov or 

e-mail. Clearly mark the part of or all 

the information that you claim to be 

CBI. For CBI information on a disk or 

CD–ROM that you mail to EPA, mark 

the outside of the disk or CD–ROM as 

CBI and then identify electronically 

within the disk or CD–ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

C. Under what legal authority is this 

proposed action issued? 

Today’s proposed rulemaking is 

issued under the authority of sections 

301, 304, 305, 308, 309, 402, 501, and 

504 of the CWA, 33 U.S.C. 1311, 1314, 

1315, 1318, 1319, 1342, and 1361. 

II. Background 

A. The Clean Water Act 

Congress passed the Federal Water 

Pollution Control Act Amendments of 

1972, (‘‘Clean Water Act’’ or ‘‘CWA’’) to 

‘‘restore and maintain the chemical, 

physical, and biological integrity of the 

nation’s waters’’ 33 U.S.C. 1251(a). 

Section 301(a) of the CWA prohibits the 

‘‘discharge of any pollutant by any 

person’’ except in compliance with the 

Act. 33 U.S.C. 1311(a). Among the core 

provisions, the CWA establishes the 

National Pollutant Discharge 

Elimination System (NPDES) permit 

program to authorize and regulate the 

discharge of pollutants from point 

sources to waters of the United States. 

33 U.S.C. 1342. Section 502(14) of the 

CWA includes the term ‘‘CAFO’’ in the 

definition of ‘‘point source;’’ 

specifically, the term ‘‘point source’’ is 

defined as ‘‘any discernible, confined 

and discrete conveyance, including but 

not limited to any * * * concentrated 

animal feeding operation * * * from 

which pollutants are or may be 

discharged * * *’’ 33 U.S.C. 1362(14). 

Section 501 authorizes the 

Administrator to promulgate rules to 

carry out the Administrator’s functions 

under the CWA. EPA has issued 

comprehensive regulations that 

implement the NPDES program at 40 

CFR parts 122–124. 

Section 308 of the CWA authorizes 

EPA to collect information from the 

‘‘owner or operator of any point source’’ 

for the following purpose: 

To carry out the objectives of [the CWA], 

including but not limited to (1) developing or 

assisting in the development of any effluent 

limitation, or other limitation, prohibition, or 

effluent standard, pretreatment standard, or 

standard of performance under [the CWA]; 

(2) determining whether any person is in 

violation of any such effluent limitation, or 

other limitation, prohibition or effluent 

standard, pretreatment standard, or standard 

of performance; (3) any requirement 

established under [§ 308 of the CWA]; or (4) 

carrying out [sections 305, 311, 402, 404 

(relating to state permit programs), 405 and 

504 of the CWA]. * * * 33 U.S.C. 1318(a). 

Section 308(a)(3)(A) of the Act 

provides that, in furtherance of the 

stated objectives, EPA may require 

owners or operators of point sources to 

establish and maintain records; make 

reports; install, use, and maintain 

monitoring equipment; sample effluent; 

and provide such other information as 

EPA may reasonably require to carry out 

the objectives of the Act. 33 U.S.C. 

1318(a). Section 309 of the CWA 

authorizes EPA to assess penalties for 

violations of section 308 of the CWA. 33 

U.S.C. 1319. 

B. Environmental and Human Health 

Impacts of CAFOs 

Despite more than 35 years of 

regulating CAFOs, reports of water 

quality impacts from large animal 

feeding operations persist. At the time 

of the 2003 CAFO rulemaking, the 

Agency received estimates from USDA 

indicating that livestock operations 

where animals are confined produce 

more than 300 million tons of manure 

annually. 68 FR 7180. On the basis of 

that figure, EPA estimated that animals 

raised in confinement generate more 

than three times the amount of raw 

waste than the amount of waste that is 

generated by humans in the United 

States. Id. For the 2003 CAFO 

rulemaking, EPA estimated that CAFOs 

collectively produce 60 percent of all 

manure generated by farms that confine 

animals. Id. 

Pollutants from manure, litter, and 

process wastewater can affect human 

health and the environment. Whether 

from poultry, cattle, or swine, the 

manure, litter and process wastewater 

contains substantial amounts of 

nutrients (nitrogen, phosphorus, and 


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potassium), pathogens, heavy metals, 

and smaller amounts of other elements 

and pharmaceuticals. This manure, 

litter, and process wastewater 

commonly is applied to crops associated 

with CAFO operations or transferred off 

site. Where over-applied or applied 

before precipitation events, excess 

nutrients can flow off of agricultural 

fields, causing harmful aquatic plant 

growth, commonly referred to as ‘‘algal 

blooms,’’ which can cause fish kills and 

contribute to ‘‘dead zones.’’ In addition, 

algal blooms often release toxins that are 

harmful to human health. 

To improve the Agency’s ability to 

estimate ecological and human risk for 

chemical and microbial contaminants 

that enter water resources, EPA is 

continuing research to evaluate the 

effect of CAFOs on surface and ground 

water quality. Effective control of 

pathogens originating in livestock 

manure or poultry litter could improve 

human and ecosystem health through 

reductions in waterborne disease 

organisms and chemicals. More than 40 

diseases found in manure can be 

transferred to humans, including 

causative agents for Salmonellosis, 

Tuberculosis, Leptospirosis, infantile 

diarrheal disease, Q-Fever, Trichinosis, 

and Giardiasis. Exposure to waterborne 

pathogen contaminants can result from 

both recreational use of affected surface 

water (accidental ingestion of 

contaminated water and dermal contact 

during swimming) and from ingestion of 

drinking water derived from either 

contaminated surface water or 

groundwater. JoAnn Burkholder, et al., 

Impacts of Waste from Concentrated 

Animal Feeding Operations on Water 

Quality, 115 Env’t Health Perspectives 

310 (2007). 

Heavy metals such as arsenic, 

cadmium, iron, lead, manganese, and 

nickel are commonly found in CAFO 

manure, litter, and process wastewater. 

Some heavy metals, such as copper and 

zinc, are essential nutrients for animal 

growth—especially for cattle, swine and 

poultry. However, farm animals excrete 

excess heavy metals in their manure, 

which in turn is spread as fertilizer, 

causing potential runoff problems. U.S. 

EPA, Risk Assessment Evaluation for 

Concentrated Animal Feeding 

Operations, EPA–600–R–04–042 (2004); 

and U.S. EPA, Development Document 

for the Final Revisions to the National 

Pollutant Discharge Elimination System 

Regulation and the Effluent Guidelines 

for Concentrated Animal Feeding 

Operation, EPA–821–R–032–001 (2002). 

EPA reported approximately 80 to 90 

percent of the copper, zinc, and arsenic 

consumed is excreted. Possible adverse 

effects reported in the literature include 

the risk of phytotoxicity, groundwater 

contamination and deposition in river 

sediment that may eventually release to 

pollute the water. U.S. EPA, Risk 

Assessment Evaluation for Concentrated 

Animal Feeding Operations, EPA–600– 

R–04–042 (2004), pp. 43–46. Repeated 

application of manure above agronomic 

rates could result in exceedances of the 

cumulative metal loading rates 

established in EPA regulations at 40 

CFR part 503, thereby potentially 

impacting human health and the 

environment. U.S. EPA, Preliminary 

Data Summary Feedlots Point Source 

Category Study, EPA–821–R–99–002 

(1999), pp. 26–27. The health hazards 

that may result from chronic exposure 

to heavy metals at certain 

concentrations can include kidney 

problems from cadmium, Public Health 

Statement Cadmium (CAS #7440–43–9), 

available at http://www.atsdr.cdc.gov/ 

PHS/PHS.asp?id=46&tid=15; nervous 

system disorders, and 

neurodevelopmental problems (IQ 

deficits) from lead, Lead and 

Compounds (inorganic) (CASRN 7439– 

92–1), available at http://www.epa.gov/ 

iris/subst/0277.htm; and cardiovascular 

effects, diabetes, respiratory effects, 

nervous system problems, and 

reproductive effects and cancers from 

multiple tissues from arsenic, NRC 

Arsenic in Drinking Water, National 

Academy Press (2001), available at 

http://www.nap.edu/openbook/ 

0309076293/html/R1.html. 

To promote growth and to control the 

spread of disease, antibiotics, growth 

hormones and other pharmaceutical 

agents are often added to feed rations or 

water, directly injected into animals, or 

administered via ear implants or tags. 

The annual amount of antimicrobial 

drugs sold and distributed in 2009 for 

use in food animals was 13.3 million 

kilograms or 28.8 million pounds. U.S. 

Food and Drug Administration, 2009 

Summary Report on Antimicrobials 

Sold or Distributed for Use in Foodproducing Animals (2010). This was a 

significant increase in the annual use 

from 8.8 million kilograms or 

approximately 18 million pounds 

reported in 1995. U.S. Congress, Office 

of Technology Assessment, Impacts of 

Antibiotic-Resistant Bacteria, OTA–H– 

629 (1995). 

Most antibiotics are not metabolized 

completely and are excreted from the 

treated animal shortly after medication. 

As much as 80–90 percent of some 

administered antibiotics occur as parent 

compounds in animal wastes. Scott 

Bradford et al., Reuse of Concentrated 

Animal Feeding Operation Wastewater 

on Agricultural Lands, 37 J. Env’t 

Quality 97 (2008). Synthetic steroid 

hormones are extensively used as 

growth promoters for cattle in the 

United States. Id. Steroid hormones are 

of particular concern because there is 

laboratory evidence that very low 

concentrations of these chemicals can 

adversely affect the reproduction of fish 

and other aquatic species. Id. The 

dosing of livestock animals with 

antimicrobial agents for growth 

promotion and prophylaxis may 

promote antimicrobial resistance in 

pathogens, increasing the severity of 

disease and limiting treatment options 

for sickened individuals. U.S. EPA, 

Detecting and Mitigating the 

Environmental Impact of Fecal 

Pathogens Originating from Confined 

Animal Feeding Operations: Review, 

EPA600–R–06–021 (2005). 

In the most recent National Water 

Quality Inventory, 29 states specifically 

identified animal feeding operations as 

contributing to water quality 

impairment. U.S. EPA, National Water 

Quality Inventory: Report to Congress— 

2004 Reporting Cycle, January 2009. 

EPA–841–R–08–001. The findings of 

this report are corroborated by 

numerous reports and studies 

conducted by government and 

independent researchers that identify 

the animal livestock industry as an 

important contributor of surface water 

pollution. For example, the GAO found 

in its 2008 Report to Congressional 

Requesters that since 2002, 68 studies 

had been completed that examined air 

and water quality issues associated with 

animal feeding operations. Fifteen of 

those have directly linked air and water 

pollutants from animal waste to specific 

health or environmental impacts. GAO– 

08–944 (2008). For further discussion of 

this Report, see the section United 

States Government Accountability 

Office Report of this preamble. 

Water quality impacts from CAFOs 

may be due, in part, to inadequate 

compliance with existing regulations or 

to limitations in CAFO permitting 

programs. EPA believes that basic 

information about CAFOs would assist 

the Agency in addressing those 

problems. Complete and accurate 

information allows governments, 

regulated communities, interest groups 

and the public to make more informed 

decisions regarding ways to protect the 

environment. 

C. United States Government 

Accountability Office Report 

In September 2008, the United States 

Government Accountability Office 

(GAO) issued a report to congressional 

requesters, recommending that EPA 

‘‘should complete the Agency’s effort to 

develop a national inventory of 


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permitted CAFOs and incorporate 

appropriate internal controls to ensure 

the quality of the data.’’ U.S. Gov’t 

Accountability Office, Concentrated 

Animal Feeding Operations—EPA 

Needs More Information and a Clearly 

Defined Strategy to Protect Air and 

Water Quality, GAO–08–944 5 (2008), 

page 48. EPA officials stated that ‘‘EPA 

does not have data on the number and 

location of CAFOs nationwide and the 

amount of discharges from these 

operations. Without this information 

and data on how pollutant 

concentrations vary by type of 

operation, it is difficult to estimate the 

actual discharges occurring and to 

assess the extent to which CAFOs may 

be contributing to water pollution.’’, Id. 

page 31. The report also stated that 

‘‘despite its long-term regulation of 

CAFOs, * * * EPA has neither the 

information it needs to assess the extent 

to which CAFOs may be contributing to 

water pollution, nor the information it 

needs to ensure compliance with the 

Clean Water Act.’’ Id. page 48. 

The GAO report contains a review of 

EPA’s data on permitted CAFOs, and 

the GAO determined that data obtained 

from state agencies ‘‘are inconsistent 

and inaccurate and do not provide EPA 

with the reliable data it needs to 

identify and inspect permitted CAFOs 

nationwide.’’ Id. page 17. EPA had 

received its data from EPA Regional 

offices and from the states relating to 

permits issued to CAFOs between 2003 

and 2008. GAO interviewed officials in 

47 states to determine the accuracy and 

reliability of the data EPA collected. On 

the basis of that information, GAO 

determined that EPA’s data was not 

reliable and could not be used to 

identify trends in permitted CAFOs over 

the five-year period. In addition to 

reviewing EPA’s data on CAFOs, the 

GAO also reviewed data from other 

Federal agencies. GAO concluded that 

no Federal agency currently collects 

accurate and consistent data on the 

number, size, and location of CAFOs as 

defined by the CAFO regulations. Id. 

page 4. EPA responded to the draft GAO 

report stating that the Agency would 

develop a comprehensive national 

inventory of CAFOs. Id. page 76. 

D. United States Office of Management 

and Budget Report 

More recently, the Office of 

Management and Budget (OMB) issued 

a report to Congress that describes the 

value of data collection efforts that 

minimize burden on reporting entities 

and have practical utility. In this report, 

OMB identifies the benefits and costs of 

Federal regulations and unfunded 

mandates on states, local and tribal 

entities. U.S. Office of Management and 

Budget, 2011 Report to Congress on the 

Benefits and Costs of Federal 

Regulations and Unfunded Mandates on 

State, Local, and Tribal Entities (2001). 

This report stressed the importance of 

ensuring that regulations are ‘‘evidencebased and data-driven and hence based 

on the best available work in both 

science and social science.’’ Id. page 5. 

Specifically, the report briefly outlines 

steps and best practices that are 

consistent with OMB’s recent 

recommendations for ‘‘flexible, 

empirically informed approaches; 

increased openness about costs and 

benefits; and the use of disclosure as a 

regulatory tool.’’ Id. page 5. EPA 

believes that today’s co-proposed 

rulemaking would be consistent with 

OMB’s recommendations by promoting 

transparency and providing a 

comprehensive body of data that would 

serve as a basis for sound decisionmaking about EPA’s CAFO program. 

E. Litigation Regarding the 2008 Revised 

NPDES Permit Regulation and Effluent 

Limitations Guidelines for CAFOs in 

Response to the Waterkeeper Decision 

EPA’s regulation of discharges from 

CAFOs dates to the 1970s. EPA initially 

issued national effluent limitations 

guidelines and standards (ELGs) for 

feedlots, on February 14, 1974 and 

NPDES CAFO regulations on March 18, 

1976. 39 FR 5704; 41 FR 11458. In 

February 2003, EPA issued revised 

CWA permitting requirements, ELGs 

and new source performance standards 

for CAFOs. 68 FR 7176. The 2003 CAFO 

rule required the owners or operators of 

all CAFOs to seek coverage under an 

NPDES permit, unless they 

demonstrated no potential to discharge. 

With implementation of the 2003 rule, 

EPA and state permitting authorities 

would have obtained information about 

the universe of CAFOs. However, both 

environmental groups and industry 

challenged the 2003 final rule, and in 

February 2005, the U.S. Court of 

Appeals for the Second Circuit issued 

its decision in Waterkeeper Alliance et 

al. v. EPA, 399 F.3d 486 (2d Cir. 2005). 

Among other things, the court held that 

EPA does not have authority under the 

CWA to require CAFOs that have only 

a potential to discharge to obtain NPDES 

permits. 

In 2008, EPA issued revised 

regulations in response to the 

Waterkeeper decision. Among other 

changes, the revised regulations 

required only those CAFOs that 

discharge or propose to discharge to 

obtain an NPDES permit. Subsequently, 

environmental groups and industry filed 

petitions for review of the 2008 rule, 

which were consolidated in the U.S. 

Court of Appeals for the Fifth Circuit. 

EPA signed a settlement agreement with 

the environmental petitioners in which 

EPA committed to propose a rule, 

pursuant to CWA section 308, that 

would require CAFOs to provide certain 

information to EPA. The settlement 

agreement provides the context and 

timeline for this proposed rulemaking. 

The settlement agreement commits 

EPA to propose, by October 14, 2011, a 

rule under section 308 of the CWA, 33 

U.S.C. 1318, to require all owners or 

operators of CAFOs, whether or not they 

have NPDES permits, to submit certain 

information to EPA. EPA agreed to 

propose a rule requiring CAFOs to 

submit the information listed below; or, 

if EPA decides not to include one of the 

items in the proposal, EPA would 

identify the item(s), explain why EPA 

chose not to propose requiring that 

information and request comment on 

the excluded items. EPA committed to 

take final action on the rule by July 13, 

2012. The settlement agreement does 

not commit EPA to the substance of any 

final action. The settlement agreement 

expressly states that nothing in the 

agreement shall be construed to limit or 

modify the discretion accorded EPA by 

the CWA or by general principals of 

administrative law. Nor does the CWA 

require EPA to collect the information 

proposed in today’s notice. 

The items listed in the settlement 

agreement to be addressed in the 

proposal include the following: 

1. Name and address of the owner and 

operator; 

2. If contract operation, name and 

address of the integrator; 

3. Location (longitude and latitude) of 

the operation; 

4. Type of facility; 

5. Number and type(s) of animals; 

6. Type and capacity of manure 

storage; 

7. Quantity of manure, process 

wastewater, and litter generated 

annually by the CAFO; 

8. Whether the CAFO land-applies; 

9. Available acreage for land 

application; 

10. If the CAFO land-applies, whether 

it implements a nutrient management 

plan for land application; 

11. If the CAFO land-applies, whether 

it employs nutrient management 

practices and keeps records on site 

consistent with 40 CFR 122.23(e); 

12. If the CAFO does not land apply, 

alternative uses of manure, litter and/or 

wastewater; 

13. Whether the CAFO transfers 

manure off site, and if so, quantity 

transferred to recipient(s) of transferred 

manure; and 


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14. Whether the CAFO has applied for 

an NPDES permit 

On March 15, 2011, the Fifth Circuit 

Court of Appeals vacated the 

requirement in EPA’s 2008 CAFO rule 

that CAFOs that ‘‘propose’’ to discharge 

obtain NPDES permits and held that 

CAFOs are not liable under the CWA for 

failing to apply for NPDES permits. 

Nat’l Pork Producers Council (NPPC) v. 

EPA, 635 F.3d 738 (5th Cir. 2011) 

(herein referred to as NPCC). The Fifth 

Circuit held that there must be an 

‘‘actual discharge to trigger the CWA 

requirement to obtain a permit.’’ NPPC, 

635 F.3d at 751. EPA’s authority to 

collect information under section 308 

from ‘‘point sources’’ is broader than 

EPA’s authority to require and enforce 

a requirement to apply for an NPDES 

permit, as interpreted by NPPC. In 

particular, EPA is authorized under 

section 308 to collect information from 

any point source, and point sources are 

defined to include ‘‘any discernible, 

confined and discrete conveyance, 

including * * * any * * * 

concentrated animal feeding operation 

* * * from which pollutants are or may 

be discharged.’’ 33 U.S.C. 1362(14). 

Today’s proposed rulemaking is 

therefore not affected by this ruling of 

the Fifth Circuit Court of Appeals. 

In vacating the requirement that 

CAFOs that propose to discharge apply 

for an NPDES permit (the ‘‘duty to 

apply’’ provision), the court held that 

‘‘there must be an actual discharge into 

navigable waters to trigger the CWA’s 

requirements and the EPA’s authority. 

Accordingly, EPA’s authority is limited 

to the regulation of CAFOs that 

discharge.’’ NPPC, 635 F.3d at 751. The 

court’s holding that EPA may regulate 

only those CAFOs that discharge is 

limited to the specific type of regulation 

at issue before the court: the duty to 

apply for a permit. Today’s notice 

proposes options for gathering basic 

information from CAFOs; it does not 

require them to obtain permits. 

EPA proposes to gather information 

from CAFOs pursuant to its authority in 

CWA section 308 to collect information. 

This information-gathering authority is 

broader than EPA’s authority to require 

permit coverage, which was at issue in 

NPPC. Section 308 authorizes 

information collection from ‘‘point 

sources,’’ which includes CAFOs that 

discharge or may discharge. 33 U.S.C 

1318(a); 1362(14) (the term ‘‘point 

source’’ is defined as ‘‘any discernible, 

confined, and discrete conveyance, 

including * * * any * * * 

concentrated animal feeding operation 

* * * from which pollutants are or may 

be discharged * * *’’). The plain 

language of section 308 expressly 

authorizes information collection for a 

list of purposes including assistance in 

developing, implementing, and 

enforcing effluent limitations or 

standards, such as the prohibition 

against discharging without a permit. 33 

U.S.C. 1318(a). The information EPA 

proposes to collect is limited to basic 

information about CAFOs and would 

enable EPA, states, and others to 

determine the number of CAFOs in the 

United States and where they are 

located and would assist EPA in 

developing, implementing, and 

enforcing the requirements of the Act. 

III. This Proposed Action 

A. Proposed Action Overview and 

Objectives 

The purpose of this co-proposal is to 

improve and restore water quality by 

collecting facility-specific information 

that would improve EPA’s ability to 

effectively implement the NPDES 

program and to ensure that CAFOs are 

complying with the requirements of the 

CWA, including the requirement to 

obtain an NPDES permit if they 

discharge pollutants to waters of the 

U.S. Section 402 of the CWA authorizes 

EPA to regulate all point source 

discharges through the NPDES 

permitting program. The NPDES 

program regulates discharges from such 

industries as manufacturing and 

processing plants (e.g., textile mills, 

pulp and paper mills), municipal 

wastewater treatment plants, 

construction sites and CAFOs. Unlike 

many other point source industries, EPA 

does not have facility-specific 

information for all CAFOs in the United 

States. Facility location and basic 

operational characteristics that relate to 

how and why a facility may discharge 

is essential information needed to carry 

out NPDES programmatic functions, 

which include the following: 

• Evaluating NPDES program 

effectiveness; 

• Identifying and permitting CAFOs 

that discharge; 

• Conducting education and outreach 

to promote best management practices; 

• Determining potential sources of 

water quality impairments and taking 

steps to address those impairments; 

• Estimating CAFO pollutant 

loadings—by facility, by watershed, or 

some other geographical area; and 

• Targeting resources for compliance 

assistance or enforcement. 

The six categories listed above 

represent key activities necessary to 

ensure that CAFOs are meeting their 

obligations under the CWA regarding 

protection of water quality from CAFO 

discharges and can be carried out most 

efficiently and effectively when EPA 

and states have access to facility 

contacts and other basic information 

about CAFOs. This information could be 

used to better protect public health and 

welfare of communities near CAFOs, 

including environmental justice for 

minority, indigenous or low-income 

communities. 

In today’s proposed rulemaking, EPA 

co-proposes two options by which the 

Agency may achieve today’s rule 

objectives: Option 1 (Section C.) would 

apply to all CAFOs; Option 2 (Section 

D) would identify focus watersheds 

where CAFO discharges may be causing 

water quality concerns and EPA could 

use its section 308 authority to obtain 

information from CAFOs in these areas. 

However, EPA would make every 

reasonable effort to assess the utility of 

existing publicly available data and 

programs to identify CAFOs by working 

with partners at the Federal, state, and 

local level before determining whether 

requiring CAFOs to provide the 

information is necessary. Both of these 

options propose revisions to the NPDES 

regulations, which would allow EPA to 

obtain necessary information from 

CAFOs, including their contact 

information, location of the CAFO’s 

production area, NPDES permitting 

status, number, and type of animals, and 

number of acres available for land 

application. Section F. Alternative 

Approaches to Achieve Rule Objectives 

discusses alternative approaches to a 

regulatory information request for 

CAFOs that may achieve similar 

outcomes (i.e., ensuring that CAFOs are 

complying with their obligations under 

the CWA). 

B. CWA Section 308 Data Collection and 

EPA’s Approach Toward Collecting 

Facility-Specific Information From 

CAFOs Through Rulemaking 

The proposed rulemaking utilizes 

EPA’s authority under section 308 of the 

CWA, which authorizes EPA to collect 

information from point sources when 

necessary to carry out the objectives of 

the CWA. Since the 1970s, EPA 

routinely has used its authority under 

section 308 of the Act to collect 

information from large groups of point 

sources when developing and reviewing 

ELGs. An ELG survey typically will 

request industrial sources to provide 

information such as the type and 

amount of pollutants discharged, 

technologies available to treat waste 

streams, the performance capability of 

these technologies, and financial data. 

EPA uses this information to determine 

the appropriate control requirements 

and to assess the economic feasibility of 

such additional controls. As an 


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example, when reviewing the ELGs 

applicable to the steam electric 

industry, EPA determined that the data 

available at that time did not include all 

wastewater streams generated by the 

steam electric industry. To address this 

deficiency, EPA issued detailed 

questionnaires to the industry, which 

required the industry to respond to 

questions including contact 

information, facility address, pollutants 

in wastewater discharges, volume of 

discharges, and types and performance 

of technologies employed to treat the 

wastewater along with financial 

information. When developing ELGs for 

coal bed methane extractions, EPA 

conducted an industry survey to 

evaluate the volume of water produced 

from extraction; the management, 

storage, treatment and disposal options; 

and the environmental impacts of 

surface discharges. Information 

collection under the CWA, thus, has 

been a frequently used tool to develop 

appropriate and environmentally 

protective standards. 

There is precedent for EPA using its 

section 308 authority to collect 

information from entities not currently 

required to obtain NPDES permits. 

Recently, EPA conducted surveys to 

gather information to help assess the 

impact of potential changes that the 

Agency is considering to its existing 

stormwater requirements. As part of this 

effort, EPA sent questionnaires to 

regulated Municipal Separate Storm 

Sewer System (MS4s), non-regulated 

MS4s, transportation MS4s, NPDES 

permitting authorities, and owners and 

operators of developed sites. 

EPA can use a variety of methods to 

obtain data required by information 

collection requests under section 308. 

The most common method is to mail 

questionnaires directly to industry 

contacts. However, because EPA does 

not know the names and addresses of all 

CAFOs, mailing surveys to CAFOs is not 

possible; therefore, a rule is necessary to 

collect the information. The final 

Federal Register notice would contain 

the information collection request form 

(see the proposed form at the end of this 

preamble). Under Option 1, CAFOs 

would be required to respond to the 

request as issued in the Federal Register 

unless a state chooses to provide the 

information on behalf of a CAFO. Under 

Option 2, CAFOs in a focus watershed 

would be required to respond, but EPA 

would make every reasonable effort to 

assess the utility of existing publicly 

available data and programs to identify 

CAFOs by working with partners at the 

Federal, state, and local level before 

determining whether requiring CAFOs 

to respond to a survey request is 

necessary. This request would be 

accomplished through a locallyapplicable notice in the Federal 

Register along with other forms of local 

outreach. In the Federal Register, EPA 

also would include the description of 

the focus watershed and the reasons for 

its selection. To implement the rule 

effectively, EPA intends to conduct 

extensive outreach to the CAFO 

industry to ensure that all CAFOs know 

of the existence of this rule and any 

requirement to respond. The owners or 

operators of AFOs that have not been 

designated and that do not confine the 

required number of animals to meet the 

definition of a Large or Medium CAFO 

are not required to submit information 

under this proposed rulemaking. 

The rulemaking process is an 

appropriate way to collect information 

from CAFOs because rulemaking is a 

transparent, equitable, and efficient 

method of collecting information from a 

large universe of entities. Moreover, 

allowing the states to submit the 

information required by this proposed 

action on behalf of a CAFO, included in 

the proposed option that would require 

all CAFOs to submit information, would 

allow states to collaborate with EPA in 

reducing the burden on some CAFOs to 

report the information to EPA. The 

proposed rule is a reasonable exercise of 

CWA section 308 authority because the 

information to be submitted would 

enable EPA to carry out and ensure 

compliance with the NPDES permitting 

program and other CWA requirements 

for CAFOs. See, e.g. Natural Resources 

Def. Council, Inc. v. EPA, 822 F.2d 104, 

119 (DC Cir. 1987); In re Simpson Paper 

Co. and Louisiana-Pacific Corp., 3 

E.A.D. 541, 549 (1991). 

EPA requests comment on obtaining 

the information through options in this 

co-proposed rulemaking or whether 

EPA should explore alternative 

approaches as described in the 

Alternative Approaches to Achieve Rule 

Objectives section of this preamble. 

C. Option 1 Would Apply to All CAFOs 

1. What information would EPA require 

as part of an information gathering 

survey for CAFOs and why is EPA 

proposing to require this information? 

Proposed paragraph § 122.23(k)(2) 

specifies the information EPA would 

require respondents to provide to the 

Agency. Under this proposed option, 

EPA would require respondents to 

submit the following information: 

(i) The legal name of the owner of the 

CAFO or an authorized representative, 

their mailing address, e-mail address (if 

available) and primary telephone 

number. An authorized representative 

must be an individual who is involved 

with the management or representation 

of the CAFO. The authorized 

representative must be located within 

reasonable proximity to the CAFO, and 

must be authorized and sufficiently 

informed to respond to inquiries from 

EPA on behalf of the CAFO; 

(ii) The location of the CAFO’s 

production area identified by the 

latitude and longitude or by the street 

address. 

(iii) If the owner or operator has 

NPDES permit coverage as of [the 

effective date of final rule], the date of 

issuance of coverage under the NPDES 

permit, and the permit number. If the 

owner or operator has submitted an 

NPDES permit application or a Notice of 

Intent as of [the effective date of final 

rule] but has not received coverage, the 

date the owner or operator submitted 

the permit application or Notice of 

Intent; 

(iv) For the previous 12-month period, 

identification of each animal type 

confined either in open confinement 

including partially covered area, or 

housed totally under roof at the CAFO 

for 45 days or more, and the maximum 

number of each animal type confined at 

the CAFO for 45 days or more; and 

(v) Where the owner or operator land 

applies manure, litter, and process 

wastewater, the total number of acres 

under the control of the owner or 

operator available for land application. 

Proposed paragraph § 122.23(k)(2)(i) 

would require CAFOs to provide a point 

of contact for the CAFO. EPA proposes 

to allow CAFOs to provide contact 

information for either the owner of the 

CAFO or an authorized representative. 

An authorized representative must be an 

individual who is involved with the 

management or representation of the 

CAFO. The authorized representative 

must be located within reasonable 

proximity to the CAFO, and must be 

authorized and sufficiently informed to 

respond to inquiries from EPA on behalf 

of the CAFO. For example, an employee 

who manages the CAFO or an attorney 

employed by the CAFO could be an 

appropriate authorized representative. 

Respondents would be required to 

provide complete contact information, 

including name, telephone number, email (if available), and mailing address. 

Owners or authorized representatives 

may provide a P.O. Box in lieu of a 

street address in the contact information 

section. All individuals who qualify 

under 40 CFR. 122.22 can serve as a 

CAFO’s authorized representative, 

including the operator of a CAFO. EPA 

proposes to allow qualifying individuals 

to serve as a CAFO’s point of contact to 

preserve the privacy of a CAFO owner 


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if desired. With this information, EPA 

would be able to communicate directly 

with CAFOs when necessary. EPA seeks 

comment on whether an authorized 

representative should be permitted to 

sign the survey form instead of the 

CAFO owner or operator. 

In addition to providing contact 

information, proposed paragraph 

§ 122.23(k)(2)(ii) would require CAFOs 

to provide the location of the CAFO’s 

production area in either latitude and 

longitude or by the street address of the 

CAFO’s production area. (Note that a 

P.O. Box would not substitute for a 

street address in the location 

information section, since it would not 

identify a CAFO’s location). EPA 

believes that knowing the location of the 

CAFO’s production area, as specified in 

proposed paragraph § 122.23(k)(2)(ii), is 

essential for determining sources of 

water quality impairments and potential 

mitigation measures. A CAFO’s 

proximity to waterbodies also is 

relevant to whether it may cause water 

quality impacts. Comprehensive 

compliance assistance and education 

and outreach efforts, which are 

facilitated by knowing facility location 

and contact information, are tools a 

regulatory program can use in 

partnerships with industry to 

proactively protect and maintain water 

quality. 

Information related to a CAFO’s 

permit status (proposed paragraph 

§ 122.23(k)(2)(iii)) would indicate 

whether additional information is 

publicly available, thus avoiding 

duplicative efforts to seek information 

from NPDES permitted CAFOs. 

Permitting status information also 

would show which CAFOs are operating 

without NPDES permit coverage. Even 

where a facility is not discharging and 

therefore is not required to be covered 

by a permit, knowing about the 

existence of these facilities gives EPA a 

basis for understanding how many 

facilities within each sector are actually 

able to completely prevent discharges. 

This information might be transferable 

to other facilities in that sector that 

currently discharge. EPA or states 

would be able to provide technical 

assistance, extend compliance 

assistance, or inspect such CAFOs 

where appropriate. 

EPA proposes (as specified in 

proposed paragraph § 122.23(k)(2)(iv)) 

to collect data on the number and type 

(cattle, poultry, swine, etc.) of animals 

because the scale of the operation and 

the types of animals confined relate to 

the type and volume of manure 

generated and related environmental 

considerations, and also determine 

applicable CWA permitting 

requirements. Specifically, the number 

and type of animals provides an 

indication of the quantity and 

characteristics of the CAFOs’ manure 

(i.e., wet or dry and possible 

constituents), which then informs EPA 

as to the possible environmental effects 

of that manure. EPA also proposes to 

collect information about the amount of 

land available for application (proposed 

paragraph § 122.23(k)(2)(v)). A CAFO’s 

available land application area is likely 

to affect the amount of manure that can 

be land applied for agronomic purposes 

and the potential amount of nutrients 

that could flow into surrounding waters 

of the United States. Combining 

information about manure quantity and 

characteristics with land available for 

application would indicate where issues 

might exist regarding excess manure. 

Section 308(b)(1) of the CWA requires 

that information collected by the 

Agency shall be available to the public, 

except upon a satisfactory showing to 

the Administrator that any part of the 

information, report, or record is 

confidential business information. 

Under existing regulations, an owner or 

operator may assert a claim of 

confidential business information (CBI) 

with respect to specific information 

submitted to EPA. 40 CFR part 2, 

subpart B. Under section 2.208, business 

information is entitled to confidential 

treatment if, ‘‘the business has 

satisfactorily shown that disclosure of 

the information is likely to cause 

substantial harm to the business’s 

competitive position.’’ A claim of 

confidentiality must be made at the time 

of submission and in accordance with 

the requirements of 40 CFR 2.203(b). Id. 

at § 2.203(c). EPA would follow all the 

requirements related to information 

submitted with a claim of 

confidentiality including the required 

notification to the submitter and rights 

of appeal available before releasing any 

information claimed to be confidential. 

EPA seeks comment on whether any 

information required by this proposed 

rule could reasonably be claimed as CBI 

and the reasons for making this claim. 

EPA requests comment on the 

information that CAFOs would be 

required to submit as specified by 

proposed paragraph § 122.23(k)(2). 

Specifically, EPA is aware that 

providing latitude and longitude 

information might raise security or 

privacy concerns for CAFO owner/ 

operators, many of whom are family 

farmers. EPA seeks comment on 

alternatives to submission of the 

latitude and longitude that would 

provide general information on a 

facility’s location but not specific 

coordinates. For example, the survey 

could request the name of the nearest 

waterbody to the CAFO. Local 

knowledge, U.S. Geological Survey 

topographical maps or internet 

programs such as Google Maps could be 

used by the CAFO to make this 

determination of the nearest waterbody 

to the CAFO. This would allow EPA to 

identify the watershed in which a CAFO 

is located, and to potentially model 

discharges from the CAFO and their 

impacts on water quality, but without 

providing specific information that 

could be misused to target the CAFO for 

inappropriate or illegal purposes. EPA 

also seeks comment on using other 

systems such as the Public Land Survey 

System (PLSS) (i.e. township, range and 

county information) to identify the 

location of a CAFO’s production area. 

The PLSS encompasses major portions 

of the land area of 30 southern and 

western United States. EPA seeks 

comment on other possible alternatives 

as well, such as requesting a business 

address and county where located, or 

some other general locational 

information. Commenters suggesting 

such alternative should discuss the 

advantages and limitations of such 

information both for protecting the 

security and privacy of CAFOs, and for 

fulfilling the CWA purposes for which 

EPA needs the data (discussed above). 

EPA also seeks comment on how this 

type of location information would 

compare with respect to operator 

burden, accuracy of location 

identification, and usefulness of the 

information to identify the production 

area location. EPA also seeks comment 

on whether CAFOs would know the 

operation’s latitude and longitude. 

Related to the concern discussed 

above is a concern that providing 

specific information on the type and 

number of animals at a CAFO might also 

raise potential security issues. EPA 

requests comment on allowing CAFOs 

to report numbers of animals confined 

in ranges, rather than providing specific 

numbers. One option would be to use 

ranges corresponding to the definitions 

of large, medium and small CAFOs. EPA 

also requests comment on collecting the 

information as specific numbers, but 

making it available to the public only as 

ranges. 

Additionally, EPA requests comment 

on the most appropriate 12-month span 

of time for a CAFO to determine the 

number of animals at the CAFO (i.e. 

fiscal year or calendar year, or the 

previous 12 months prior to completing 

the survey). 

EPA seeks comment on whether 

CAFOs would understand the questions 

asked and on the technical 

appropriateness of the questions. The 


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proposed survey form that EPA would 

use to collect the information is 

included as an appendix to this 

preamble. 

The settlement agreement with the 

environmental petitioners specifies that 

EPA would release the information 

collected pursuant to this rule to the 

public, except where it is entitled to 

protection as confidential business 

information. This is required by section 

308 of the CWA. However, neither the 

settlement agreement nor section 308 

specify the venue or format in which the 

information is to be released. EPA is 

aware of both security and privacy 

concerns, referenced above, regarding 

the potential public release of the 

information to be collected by this rule. 

EPA requests comment on any such 

concerns, on appropriate ways to 

address those concerns (consistent with 

section 308), and on appropriate formats 

or venues to make it available to the 

public. EPA also requests comment on 

whether the requirement to make any 

information collected pursuant to 

section 308 available to the public 

(except confidential business 

information) should factor into its 

determination about what information, 

if any, to collect from CAFOs. 

2. What information would EPA not 

require as part of the collection request 

survey for CAFOs? 

In the settlement agreement with the 

environmental petitioners, arising out of 

litigation over the 2008 CAFO rule, EPA 

agreed to propose a rule that would 

require CAFOs to submit information on 

14 items of information; or, if EPA 

decided not to include one of the items 

from the settlement agreement in the 

proposed rule, EPA would identify the 

item(s), explain why EPA chose not to 

propose requiring that information and 

request comment on the excluded items. 

This proposed rulemaking requests 

information on only some of those 14 

items because the Agency believes it can 

effectively obtain site-specific answers 

for the remaining questions directly 

from states, other Federal agencies, 

specific CAFOs, or other sources, when 

necessary. EPA also is striving to 

balance the need for information with 

the burden associated with providing 

the information to EPA. 

EPA seeks comment on its proposal 

not to collect the following items 

specified in the settlement agreement: 

• Name and address of owner/ 

operator (if the name and address of an 

authorized representative is provided 

instead of the name and address of an 

owner or operator of the CAFO); 

• The survey would allow the 

CAFO’s a choice in providing location 

data of the production area either by the 

longitude and latitude or the street 

address of the production area, instead 

of requiring both; 

• If contract operation, name and 

address of the integrator; 

• Type and capacity of manure 

storage; 

• Quantity of manure, process 

wastewater, and litter generated 

annually by the CAFO; 

• If the CAFO land-applies, whether 

it implements a nutrient management 

plan for land application; 

• If the CAFO land-applies, whether 

it employs nutrient management 

practices and keeps records on site 

consistent with 40 CFR 122.23(e); 

• If the CAFO does not land apply, 

alternative uses of manure, litter and/or 

wastewater; and 

• Whether the CAFO transfers 

manure off site, and if so, quantity 

transferred to recipient(s) of transferred 

manure. 

3. Who would be required to submit the 

information? 

Under this option, proposed 

paragraph § 122.23(k)(1) would require 

all owners or operators of CAFOs to 

submit the information specified in 

proposed paragraph 40 CFR 

122.23(k)(2). However, an exception is 

provided by proposed paragraph 

§ 122.23(k)(5), that would allow states 

with an authorized NPDES program to 

provide the information proposed to be 

collected to EPA for CAFOs in the state. 

The option for a state to submit the 

information specified by proposed 

paragraph § 122.23(k)(2) is voluntary. 

This proposed option would allow 

states to submit the information because 

states may have collected all of the 

information required to be submitted by 

this proposed rule. A state may have 

obtained this information through 

permit applications, annual reports, 

inspection documentation, or other 

means and may keep records of this 

information in a form that is readily 

transferable to EPA. EPA does not have 

a preference regarding whether 

individual CAFOs submit the 

information or whether states submit it 

for them. EPA expects that states that do 

not possess the CAFO information 

requested would not choose to 

participate. In other words, EPA does 

not anticipate that states would submit 

the data, if it would require them to 

undertake additional efforts to collect 

this information from CAFOs. Proposed 

paragraph § 122.23(k)(2) provides 

flexibility to states by allowing each 

state to determine if it can easily submit 

the information to EPA given the state’s 

resources. 

Under proposed paragraph 

§ 122.23(k)(5), in order to submit the 

information on behalf of its CAFOs, a 

state would only be allowed to provide 

information on behalf of a CAFO if it 

submits all items of information as 

specified by proposed paragraph 

§ 122.23(k)(2). States that choose to 

submit this information would be 

required to use the Agency’s 

information management system to 

ensure reporting consistency among 

states choosing to provide the 

information to EPA. CAFOs for which a 

state submits all of the required 

information would be referred to as 

‘‘listed’’ CAFOs. States may submit 

information for CAFOs with NPDES 

permit coverage or CAFOs without 

NPDES permit coverage, such as CAFOs 

with state permits only. 

In the case of states for which EPA is 

the NPDES permit authority and where 

the NDPES CAFO general or individual 

permits have been updated in 

accordance with the 2008 CAFO rule, 

EPA would provide the information as 

if it were the state. EPA issues updated 

NPDES CAFO permits in the states of 

Idaho, New Mexico, Oklahoma, New 

Hampshire, and Massachusetts. 

The voluntary state submission option 

does not preclude any CAFO that 

wishes to do so from submitting the 

information required by the proposed 

rule even where a state previously 

submitted the information for that 

CAFO. The next section of this 

preamble, When would states that 

choose to submit the information be 

allowed to provide the information to 

EPA and when would CAFOs be 

required to submit the information to 

EPA?, identifies the time frames for 

submitting the information to EPA that 

would be required by proposed 

paragraph § 122.23(k)(2). 

Under this proposed option, EPA 

seeks comment on whether to allow the 

state submission option as proposed by 

paragraph § 122.23(k)(5), or whether all 

CAFOs should be individually required 

to submit information to EPA. 

Specifically, EPA solicits comment from 

CAFO owners or operators as to their 

willingness to have the state permitting 

agency submit operation information to 

EPA on their behalf. EPA also solicits 

comment from states on the availability 

of the information as specified by 

proposed paragraph § 122.23(k)(2); 

whether states plan to provide all the 

required information on behalf of 

CAFOs; and alternatively, if given the 

opportunity, whether states would 

provide partial information on behalf of 

CAFOs. EPA also solicits comments on 

whether NPDES authorized states 


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65440 Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Proposed Rules 

should be required to provide the 

information for their permitted CAFOs. 

4. When would states that choose to 

submit the information be allowed to 

provide the information to EPA and 

when would CAFOs be required to 

submit the information to EPA? 

Following the release of the Agency’s 

information management system and 

the availability of the proposed survey 

form, the proposed rule would allow an 

owner or operator of a CAFO or states 

to submit the information to EPA any 

time during their respective reporting 

periods. EPA proposes the following 

submission deadlines: 

• Required Reporting Period for 

States Who Chose to Report: As 

specified by proposed paragraph 

§ 122.23(k)(5)(iii), states that choose to 

submit information would be required 

to submit the information in proposed 

paragraph § 122.23(k)(2) [within 90 days 

from the effective date of the rule]. 

• Notification Period: [Within 60 days 

after the end of the state reporting 

period], EPA plans to make publicly 

available a list of all CAFOs by name, 

permit number, if applicable, and state 

(‘‘listed CAFOs’’). 

• CAFO Reporting Period: CAFOs 

that do not appear on the CAFO list 

would be required to submit the 

information on an individual facility 

basis to EPA within [90 days after the 

end of the notification period]. CAFOs 

that appear on the CAFO list may 

choose to review the information 

submitted by the state and override the 

state’s submission by submitting its own 

information, but CAFOs must do so 

within [90 days after the end of the 

notification period]. 

Table 2 summarizes the timeframes 

for submitting the information as 

specified in proposed paragraph 

§ 122.23(k)(2) to EPA. 

TABLE 2—PROPOSED TIMELINES FOR SUBMITTING THE INFORMATION REQUIRED AS SPECIFIED BY PROPOSED PARAGRAPH

§ 122.23(k)(2) 

Entity Timeframe 

States that choose to report ..................................................................... Must submit information within 90 days of the effective date of the rule. 

EPA ........................................................................................................... Makes publicly available within 60 days of the end of the state reporting period a list of CAFOs for which the states have submitted data. 

CAFOs not appearing on the CAFO list .................................................. Must submit information within 90 days of the end of the notification 

period. 

CAFOs on the CAFO list that prefer to provide information themselves May submit information within 90 days of the end of the notification period. 

EPA requests comment on allowing 

180 days rather than 90 days for states 

to submit information to EPA on behalf 

of CAFOs. This would allow additional 

time for unpermitted CAFOs wishing to 

be covered by NPDES permits to apply 

for permit coverage (e.g., submit an NOI 

in the case of a general permit) such that 

states could submit the information for 

them. 

To maintain an updated inventory, 

EPA proposes that CAFOs without 

NPDES permits submit the information 

specified by proposed paragraph 

§ 122.23(k)(2) or update previously 

submitted information every ten years. 

EPA proposes a ten-year resubmission 

period for unpermitted CAFOs because 

the Agency does not expect the 

information to change significantly 

within this ten-year period. Specifically, 

proposed paragraph § 122.23(k)(4)(iii) 

would require CAFOs without NPDES 

permit coverage to submit or update the 

required information between [January 1 

and June 1, 2022] and every tenth year 

thereafter between those dates. 

Operations that have NPDES permit 

coverage or obtain permits before the 

2022 resubmission date, or that become 

CAFOs after [July 2012]—either newly 

defined, designated, or a new source— 

and obtain NPDES permit coverage 

would not be required to submit or 

update the required information. For 

example, a CAFO that does not have an 

NPDES permit as of [July 2012] but 

obtains NPDES permit coverage before 

January 1, 2022, would not be required 

to re-submit the information that today’s 

rulemaking proposes to collect. 

Under this proposed option, CAFOs 

with NPDES permits would not need to 

update their information every ten years 

because EPA believes it would be able 

to maintain an updated inventory for 

permitted CAFOs from their annual 

reports and permit applications when 

renewing permit coverage. EPA invites 

comments on the schedule for when 

states and CAFOs would be required to 

submit the information to EPA. EPA 

also seeks comment on the requirement 

for CAFOs without NPDES permit 

coverage to resubmit the information as 

specified in proposed paragraph 

§ 122.23(k)(2) every ten years. 

5. How would CAFOs submit the 

information to EPA? 

Proposed paragraph § 122.23(k)(3) 

would require owners and operators of 

CAFOs to use an official survey form 

provided by EPA to submit, either 

electronically or by certified mail, the 

required information to EPA. EPA 

would not mail surveys to individual 

CAFOs to request information, as the 

locations of many CAFO operations are 

unknown. Rather, the survey form 

would be available on EPA’s Web site or 

by requesting a hard copy from EPA 

Headquarters from the EPA contact 

information provided in the final rule. 

EPA would conduct extensive outreach 

with the regulated community, industry 

groups, environmental groups and states 

in its effort to notify all stakeholders 

about the requirements of the rule and 

how to submit the required information. 

Proposed paragraph § 122.23(k)(3) 

would require the owner or operator of 

a CAFO to submit the survey form 

electronically using the Agency’s 

information management system 

available on EPA’s Web site. The 

Agency’s Web-based information 

management system would be the most 

effective, inexpensive way to submit the 

information. The Web-based 

information management system would 

leverage components of the Central Data 

Exchange (CDX) on the Environmental 

Information Exchange Network. CDX 

provides a single and centralized point 

of access for states and CAFO owners or 

operators to submit information 

electronically to EPA. CDX is supported 

by the Cross-Media Electronic Reporting 

Regulation (CROMERR), which provides 

the legal framework for electronic 

reporting under EPA’s regulations. 

CROMERR requires any entity that 

submits electronic documents directly 

to EPA to use CDX or an alternative 

system designated by the Administrator. 

CDX would ensure the legal 

dependability of electronically 

submitted documents and provide a 

secure environment for data exchange 


jlentini on DSK4TPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Proposed Rules 65441 

that would also protect personally 

identifiable information (PII). 

The supporting CAFO information 

management system would leverage 

Agency standards and enterprise 

technologies to perform logic checks on 

the data entered to ensure quality 

assurance and quality control. Logic 

checks would reduce the reporting 

errors and limit the time involved in 

investigating, checking and correcting 

submission errors at all levels. While 

not required, the CAFO owner or 

operator would be able to print a copy 

of the information submitted through 

the Agency’s information management 

system to maintain on site or at a nearby 

location. 

EPA proposes an option to waive the 

electronic submission requirement if the 

information management system is 

otherwise unavailable or the use of the 

Agency’s information management 

system would cause undue burden or 

expense over the use of a paper survey 

form. A CAFO owner or operator would 

be allowed to request a waiver from this 

electronic reporting requirement at the 

time of submission and would not need 

to obtain approval from EPA before 

submitting a hard copy of the form. If 

submitting a hard copy of the survey 

form, the CAFO owner or operator 

would be required to check the 

electronic submission waiver box and 

explain why electronic submission 

causes an undue burden on page 1 of 

the proposed survey form. EPA requests 

comment on whether it should allow 

CAFOs to submit a hard copy of the 

form without requesting a waiver. 

CAFOs completing a hard copy of the 

survey form would submit the 

information in proposed paragraph 

§ 122.23(k)(2) to EPA via certified mail. 

The official paper survey form is 

attached as an appendix to this 

preamble. There are two ways that a 

CAFO owner or operator who cannot 

submit the information electronically 

would be able to access the official 

paper survey form and instruction sheet, 

which are included as Attachment A of 

this preamble. First, the owner or 

operator would be able to request a form 

and instructions from EPA. A form may 

be requested from EPA Headquarters 

from the EPA contact information 

provided in the final rule. Alternatively, 

the owner or operator would be able to 

download the form and instructions, 

which would be available at http:// 

www.epa.gov/npdes/afo/. After 

receiving the official form, the CAFO 

owner or operator would complete and 

return the survey form to EPA using 

certified mail postmarked by the 

appropriate deadline specified by 

proposed paragraph § 122.23(k)(4). 

EPA plans to coordinate with states, 

tribal governments, and interested 

stakeholders to notify CAFOs about the 

proposed official survey form and the 

availability of the Agency’s information 

management system. EPA seeks 

comment on the data submission 

approach in proposed paragraph 

§ 122.23(k)(3). EPA also seeks comment 

on the most effective ways to notify 

CAFOs, when the rule is finalized, that 

they must submit the information 

required as specified by proposed 

paragraph § 122.23(k)(2). 

6. How would states submit the 

Information to EPA? 

Only states with an authorized 

NPDES program would have the option 

to submit the information on behalf of 

CAFOs within their states. EPA requests 

comment on this limitation. In states 

where EPA is the permitting authority 

for CAFOs, EPA would submit the 

information. To participate in the 

voluntary submission option provided 

by proposed paragraph § 122.23(k)(5), 

states would electronically submit the 

information required by proposed 

paragraph § 122.23(k)(2) using the 

Agency’s information management 

system. The electronic submission 

process for states is similar to the 

electronic submission process for 

CAFOs. The electronic submission 

process would entail submitting 

information via the information 

management system through CDX. 

Proposed paragraph § 122.23(k)(5)(ii) 

would limit states to providing only 

current data, including data obtain from 

the state’s most recent application 

process or from a CAFO’s most recent 

annual report. Because states choose 

whether to submit information on behalf 

of CAFOs, EPA anticipates that a state 

would submit the information only 

when electronic submission is not 

overly burdensome. 

To clearly identify which CAFOs 

would not need to submit the 

information to EPA during the CAFO 

reporting period, EPA proposes to make 

available on the Agency’s Web site 

(http://www.epa.gov/npdes/) a final list 

of CAFOs for which the states have 

submitted information on behalf of a 

CAFO. The CAFOs would be listed by 

name, location and permit number for 

NPDES permitted CAFOs, and by name 

and location for unpermitted CAFOs. 

EPA would also make available the 

information provided by the states for 

each CAFO [within 60 days after the 

end of the 90-day state submission 

timeframe]. As explained in the section, 

When would states that choose to 

submit the information be allowed to 

provide the information to EPA and 

when would CAFOs be required to 

submit the information to EPA?, of this 

preamble, CAFOs that do not appear on 

the CAFO list would be required to 

submit the information [within 90 days 

of the list and responses being 

published]. CAFOs on the CAFO list 

would not be required to submit the 

information; however, they would be 

able review and change any information 

provided by a state. 

States would be required to provide 

the electronic data files in an Extensible 

Markup Language (XML) format that is 

prescribed by EPA and compatible with 

Agency standards in support of 

regulatory data and information flows 

by the deadline specified in proposed 

paragraph § 122.23(k)(5)(iii). If states 

already store CAFO information within 

their respective databases, states would 

need to map their CAFO database 

elements to the prescribed XML CAFO 

schema for data exchange. States that do 

not store CAFO information 

electronically or maintain records in 

hardcopy would need to manually 

populate the CAFO survey using the 

Web-based submission form, thus using 

the same submission process as an 

individual CAFO owner or operator. 

In contrast to implementing and 

enforcing the existing CAFO regulations 

in 40 CFR part 122, which is a required 

program element for authorized states, 

EPA emphasizes that the state 

submission option would be voluntary. 

This proposed option would not require 

that states divert resources from 

regulatory implementation and 

enforcement efforts to submit the 

information required by proposed 

paragraph § 122.23(k)(2) to EPA. EPA 

anticipates that states that choose to 

report on behalf of their state’s CAFOs 

would already possess this information 

and therefore, would not need to 

undertake additional efforts to collect 

this information from CAFOs. EPA 

assumes the states that choose to 

provide the information to EPA would 

be the states for which this task would 

not be overly burdensome. This 

proposed option does not express a 

preference as to whether states or 

CAFOs submit the information. EPA 

plans to coordinate with states to help 

them prepare to submit the information 

if the state chooses to provide the 

information to EPA. EPA seeks 

comment on the proposed data 

collection approach regarding the way 

in which states would submit the 

information to EPA on behalf of CAFOs, 

and on whether NPDES authorized 

states should be required to submit the 

information on behalf of permitted 

CAFOs. 


jlentini on DSK4TPTVN1PROD with PROPOSALS
65442 Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Proposed Rules 

D. Option 2 Would Apply to CAFOs in 

a Focus Watershed 

EPA also proposes an option that 

would first identify focus watersheds 

with water quality problems likely 

attributable to CAFOs, and then 

potentially identify CAFOs in a focus 

watershed to respond to a survey 

request. EPA would make every 

reasonable effort to assess the utility of 

existing publicly available data and 

programs to identify CAFOs by working 

with partners at the Federal, state, and 

local level before determining whether 

an information collection request is 

necessary. This proposed rulemaking 

option would allow EPA to list the 

criteria used to define the focus 

watersheds, specify the methods to 

determine the geographic scope of the 

focus watersheds, survey groups of 

CAFOs in the selected focus watersheds 

if the necessary information was not 

available from other sources, and define 

the amount of time required for 

outreach so that CAFOs in these focus 

watersheds know if and when they are 

required to respond to a survey request. 

Under this proposed option, EPA 

would focus on collecting information 

regarding CAFOs in focus watersheds 

where there are water quality concerns 

likely associated with CAFOs. EPA 

would use existing data sources to 

determine which geographic areas 

would be identified as a focus 

watershed for collecting information 

about CAFOs and to attempt to obtain 

the necessary data before using its 308 

authority to collect it directly from 

CAFOs. 

EPA could use existing data sources 

to identify areas of water quality 

concern that correspond with locations 

of CAFOs. For example, modeling 

estimates could be used to identify 

watersheds at an appropriate Hydrologic 

Unit Codes (HUCs) level with high 

nitrogen and phosphorus loadings likely 

originating from agricultural sources. 

Publicly available data could also be 

used to identify watersheds with high 

concentrations of CAFOs. Data from 

these sources could be further 

complemented by numerous other 

existing data from EPA, states, 

universities, research centers and other 

sources. EPA would collaborate with 

states, other Federal agencies, and 

interested stakeholders to identify other 

available sources of data pertaining to 

CAFOs and water quality, including but 

not limited to watershed characteristics, 

sources of water quality impairments, 

pollutant loadings from agriculture, 

CAFO locations, characteristics of 

CAFO operations, and CAFO manure 

management practices when selecting 

focus watersheds. EPA would make its 

methodology for identifying focus 

watersheds and the results of its 

assessments available to the public. 

EPA, other Federal, state, and local 

agencies, and interested stakeholders 

could also use the collected information 

to target their outreach to CAFO owners 

and operators, target technical and 

financial assistance that helps CAFOs 

apply the most effective manure 

management practices, and implement 

monitoring and assessments of the 

effects of these practices. Leveraging 

stakeholder resources and more 

precisely focusing on areas of concern 

could yield strong results in a shorter 

period. 

Identifying focus watersheds could 

produce additional benefits in 

addressing water quality impairments. 

In focus watersheds, Federal and state 

agencies could partner with industry 

groups and non-governmental 

organizations to increase outreach and 

education to CAFO owners and 

operators. Additionally, this option 

could assist EPA and other Federal and 

state agencies in working with 

agricultural producers in the focus 

watershed to develop and implement a 

coordinated program of manure 

management practices needed to attain 

water quality goals, including state 

water quality standards. EPA could also 

evaluate results from existing or future 

water quality monitoring and modeling 

and provide these results to the public 

periodically. Such education and 

outreach efforts could promote the 

implementation of best management 

practices. Interested stakeholders could 

use information collected by this 

proposed option to target delivery of its 

technical and financial assistance 

including conservation systems tailored 

to the water quality needs and resource 

profile of each livestock producer. 

With this proposed rulemaking 

option, EPA would collect the 

information specified in proposed 

paragraph § 122.23(k)(3) only from 

CAFOs located in identified focus 

watersheds. EPA would make every 

reasonable effort to assess the utility of 

existing publicly available data and 

programs to identify CAFOs by working 

with partners at the Federal, state, and 

local level before determining whether 

an information collection request is 

necessary. EPA seeks comment on this 

proposed option that would require 

CAFOs in focus watersheds to report the 

information specified in proposed 

paragraph § 122.23(k)(4) if it were not 

otherwise available. 

1. How would EPA identify a focus 

watershed? 

EPA would identify focus watersheds 

based on water quality concerns 

associated with CAFOs, including but 

not limited to nutrients (nitrogen and 

phosphorus), pathogens (bacteria, 

viruses, protozoa), total suspended 

solids (turbidity), and organic 

enrichment (low dissolved oxygen). 

EPA also recognizes that there is a 

variety of sources, including sewage 

treatment plants, and industrial 

discharges that are sources of nutrients 

and sediment related to water quality 

impairments. However, for purposes of 

this survey, this proposed option would 

require that a focus watershed be one 

associated with water quality concerns 

likely to be associated with CAFOs or 

land application of manure. 

Under section 303(d) of the CWA, 

states are required to assess their waters 

and list as impaired those that do not 

meet water quality standards. The 

303(d) impairment listings would be 

one source to consult in identifying a 

focus watershed based on water quality 

concerns. EPA’s ATTAINS database, 

which includes listings of impaired 

waters reported to EPA by states, 

pursuant to CWA section 303(d), is 

available to help identify impacted 

watersheds. 

However, relying on impaired 

waterbody information is limited 

because many waterbodies have not 

been assessed or the impairment cause 

has not been identified. Additionally, in 

these impaired waterbodies some states 

have not established water quality 

standards for all of the pollutants in 

these impaired waterbodies that might 

be associated with CAFO discharges. In 

particular, many states have not set 

standards for nutrients, which are a key 

indicator for animal agriculture’s impact 

on water quality. To address this 

limitation, EPA also could use other 

data indicating water quality concerns 

relating to CAFOs, such as nutrient 

monitoring data from state or Federal 

agencies. EPA solicits comment on what 

sources of data could be used to 

determine where waterbodies are likely 

to be impacted due to CAFOs. 

EPA also could rely on existing 

partnerships to identify waterbodies 

with impacts associated with CAFOs. 

For example, a March, 2011 

memorandum reaffirmed EPA’s 

commitment to partnering with states 

and collaborating with stakeholders to 

make greater progress in accelerating the 

reduction of nitrogen and phosphorus 

loadings to the nation’s waters. In 

addition, some states are working on 

strategies for reducing nitrogen and 


jlentini on DSK4TPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Proposed Rules 65443 

phosphorus pollution. U.S. EPA 

Memorandum, Working Effectively in 

Partnership with States to Address 

Phosphorus and Nitrogen Pollution 

Through Use of a Framework for State 

Nutrient Reductions (2011), available at 

http://water.epa.gov/scitech/ 

swguidance/standards/criteria/ 

nutrients/upload/ 

memo_nitrogen_framework.pdf. The 

information collected by today’s 

proposed rulemaking could assist states 

as they identify areas with water quality 

concerns by providing data for their 

strategy development and 

implementation. EPA requests 

comments on sources of information 

that could be used to identify 

watersheds with a likelihood of water 

quality impacts associated with CAFOs. 

In addition to being areas where water 

quality issues of concern are likely to 

exist due to CAFOs, a focus watershed 

would be identified based on one or 

more of the additional following 

proposed criteria: 

a. High priority watershed due to 

other factors such as vulnerable 

ecosystems, drinking water source 

supply, watersheds with high 

recreational value, or outstanding 

natural resources waters (Tier 3 waters); 

b. Vulnerable soil types; 

c. High density of animal agriculture; 

and/or 

d. Other relevant information (such as 

an area with minority, indigenous, or 

low-income populations). 

EPA solicits comment on whether 

minimum standards for selection of a 

focus watershed should be adopted and 

what such standards might be. EPA also 

solicits comment on whether the results 

of a focus watershed assessment, 

including decisions to focus or not to 

focus on an area, should be made 

available to the public. EPA also solicits 

comment on how frequently EPA 

should review and/or revise its 

identification of focus watersheds. 

2. Considerations When Determining 

Whether a Focus Watershed Meets the 

Criteria for Water Quality Protection 

a. High Priority Watershed Due to Other 

Factors (Such as Vulnerable Ecosystems, 

Drinking Water Supply Source, 

Watersheds With High Recreational 

Value or Outstanding National Resource 

Waters (Tier 3 Waters)) 

EPA could identify focus watersheds 

where waters require a greater degree of 

protection than other waters of the 

United States. These include waters 

with excellent water quality, including 

high quality waters, where water quality 

conditions must be maintained and 

protected in accordance with 40 CFR 

131.12(a)(2) and outstanding national 

resource waters, where the waters have 

exceptional recreational, environmental 

or economic significance and must be 

protected in accordance with 40 CFR 

131.12(a)(3). Areas near drinking water 

sources may also be areas identified for 

survey requests. EPA and its partners 

would work with CAFOs located within 

these watersheds in order to promote 

improved nutrient management 

practices and to ensure that the 

applicable CWA requirements are met. 

EPA would review state and tribal water 

quality standard data to locate these 

watersheds. EPA seeks comment on 

high priority watershed due to other 

factors as a criterion to identify a focus 

watershed. 

b. Vulnerable Soil Types 

Vulnerable soil types include soils 

with high nutrient levels. High nutrient 

soils in a watershed indicate that there 

may be more nutrients being land 

applied than being utilized by the crops. 

For example, there is an increased risk 

of phosphorus runoff in areas where 

phosphorus soil test levels are high, 

particularly in areas that are close to 

surface waters or have steep slopes. To 

evaluate and determine which 

watersheds have soils with high 

nutrient levels, EPA could review 

reports on nutrient levels such as the 

Mid-Atlantic Watershed Program’s 

report of phosphorus; reports prepared 

for Congress, such as Animal Waste 

Management and the Environment: 

Background for Current Issues and 

Animal Waste Pollution in America: An 

Emerging National Problem. U.S. 

Congressional Research Service, CRS– 

98–451 (1998) available as of September 

2011 at http://www.cnie.org/nle/ 

CRSreports/Agriculture/ag-48.cfm; Tom 

Harkin, Animal Waste Pollution in 

America: An Emerging National 

Problem, Report Compiled by the 

Minority Staff of the United States 

Senate Committee on Agriculture, 

Nutrition, & Forestry for Senator Tom 

Harkin (Dec. 1997). Data compiled by 

state conservation districts and data 

from land grant universities that 

evaluate the nutrient levels of soils also 

could be sources of information to 

support identifying a focus watershed 

because of high nutrient levels in the 

soil. In addition to soil nutrient level, 

estimating areas where manure 

production is more than the 

surrounding crop lands can utilize may 

also be an indicator to focus information 

collection requests. For example, where 

the amount of manure generated greatly 

exceeds the capacity of available land 

for agronomic application of manure, it 

is more likely that CAFOs will apply 

manure in excess of crop nutrient 

requirements or experience issues 

associated with inadequate storage 

capacity. EPA seeks comment on 

vulnerable soil types as a criterion to 

identify a focus watershed. 

c. High Density of Animal Agriculture 

EPA could target outreach and 

information collection efforts to those 

geographic regions where Ag Census 

data, which is publicly available 

aggregate data, shows a high density of 

animals or reports a high number of 

operations that meet the CAFO animal 

size thresholds as specified by 

paragraph 40 CFR 122.23(b). EPA could 

review the aggregate data from the Ag 

Census to determine counties, 

geographic regions or sub-regions that 

have a high density of CAFOs. This type 

of census data is accessible to both EPA 

and the public through USDA’s existing 

on-line report generating function and 

other sources. EPA seeks comment on 

using high densities of CAFOs as a 

criterion to identify a focus watershed. 

d. Other Relevant Information 

EPA anticipates cases in which a need 

to collect information from CAFOs 

could arise because of factors other than 

the three criteria described above. For 

example, CAFOs often are located in 

minority, low-income, and indigenous 

communities that are or may be 

disproportionately impacted by 

environmental pollution. Supporting 

this statement is a report from The 

Lawyers’ Committee for Civil Rights 

Under Law stated that ‘‘there are 19 

times more CAFOs in North Carolina’s 

poorest communities than in wealthier 

communities and five times more in 

nonwhite neighborhoods than in white 

neighborhoods.’’ (Daria E Neal et al. 

Now is the Time: Environmental 

Injustice in the U.S. and 

Recommendations for Eliminating 

Disparities, page 56 (2010) available as 

of July 2011 at http:// 

www.lawyerscommittee.org/admin/site/ 

documents/files/Final-EnvironmentalJustice-Report-6–9–10.pdf). Working 

with CAFOs in those communities to 

address water quality problems would 

help fulfill the Agency’s environmental 

justice goals. EPA seeks comment on the 

factors listed above and seeks 

suggestions of other factors the Agency 

could use as a criteria to identify a focus 

watershed. EPA would consider other 

factors suggested for inclusion in taking 

final action on this proposal. 


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1An authorized representative must be an 

individual who is involved with the management 

or representation of the CAFO. The authorized 

representative must be located within reasonable 

proximity to the CAFO, and must be authorized and 

sufficiently informed to respond to inquiries from 

EPA or the state about the CAFO. 

3. How would EPA identify CAFOs from 

which additional information is 

needed? 

After establishing an area with a water 

quality impairment or water quality 

concerns likely associated with CAFOs, 

or otherwise identified as a focus 

watershed based on the factors 

identified above, EPA would make 

every reasonable effort to assess the 

utility of existing publicly available data 

and programs to identify CAFOs by 

working with partners at the Federal, 

state, and local level before determining 

whether an information collection 

request is necessary. However, where 

EPA was unable to obtain the necessary 

basic information from such sources, 

EPA would require CAFOs in the focus 

watershed to provide the necessary 

information. EPA requests comment on 

alternative sources of information that 

could be used to gather the necessary 

information. 

4. What information would EPA require 

as part of an information gathering 

survey for CAFOs in a focus watershed? 

Under this proposed option, EPA 

would seek to collect the same 

information as under the proposed 

option for using section 308 to collect 

information from all CAFOs, outlined in 

section III.(C)(2). Specifically, EPA 

might require CAFOs in a focus 

watershed to submit the following 

information as specified by proposed 

paragraph § 122.23(k)(4), if the 

information were not available from 

other sources: 

(i) The legal name of the owner of the 

CAFO or an authorized representative,1

their mailing address, e-mail address (if 

available) and primary telephone 

number; 

(ii) The location of the CAFO’s 

production area identified by the 

latitude and longitude or by the street 

address; 

(iii) If the owner or operator has 

NPDES permit coverage as of [the 

effective date of final rule], the date of 

issuance of coverage under the NPDES 

permit, and the permit number. If the 

owner or operator has submitted an 

NPDES permit application or a Notice of 

Intent as of [the effective date of final 

rule] but has not received coverage, the 

date the owner or operator submitted 

the permit application or Notice of 

Intent; 

(iv) For the previous 12-month period, 

identification of each animal type 

confined either in open confinement 

including partially covered area, or 

housed totally under roof at the CAFO 

for 45 days or more, and the maximum 

number of each animal type confined at 

the CAFO for 45 days or more; and 

(v) Where the owner or operator land 

applies manure, litter, and process 

wastewater, the total number of acres 

under the control of the owner or 

operator available for land application. 

Under this proposed option as well as 

the other proposed option, CAFOs in a 

targeted area would be able to assert a 

claim of confidential business 

information with respect to specific 

information submitted to EPA. 40 CFR 

part 2, subpart B. A claim of 

confidentiality must be made at the time 

of submission and in accordance with 

the requirements of 40 CFR 2.203(b). For 

further discussion of CBI, see section, 

What information would EPA require as 

part of an information gathering survey 

for CAFOs and why is EPA proposing to 

require this information?, of this 

preamble. 

5. How would EPA geographically 

define a focus watershed? 

If EPA did ultimately need to use 

section 308 to focus on CAFOs in a 

specific geographic area, that area must 

be defined in some way so that CAFOs 

would know if their operation is located 

within the area, and thus, would be 

required to respond to the survey 

request. EPA proposes to define the 

targeted areas geographically by either 

Zip Codes, counties, HUC codes, or 

watersheds. EPA solicits comment on 

the most effective way to define a focus 

watershed so that CAFOs would know 

of their need to respond to EPA. 

6. How would EPA inform CAFOs of 

their responsibility if they were required 

to respond to an information request? 

Where certain areas or groups of 

CAFOs are required to respond to an 

information collection request, EPA 

would conduct a variety of 

informational outreach efforts. First, 

EPA would publish in the Federal 

Register a notice describing the 

boundaries of the targeted area(s) and 

the information submission 

requirements for CAFOs within those 

areas at least [30] days before the 

beginning of any information 

submission period. EPA would also 

conduct extensive outreach with the 

regulated community and interested 

stakeholders to notify CAFOs in the 

focus watershed of their responsibility 

to provide information. EPA would 

work with the state and local authorities 

in providing this outreach. For example, 

EPA might hold public meetings in the 

area, place notices in newspapers, and 

use other available local media. EPA 

notes that the owners or operators of 

AFOs that have not been designated and 

that do not confine the required number 

of animals to meet the definition of a 

Large or Medium CAFO would not be 

required to submit information as 

specified in proposed paragraph 

§ 122.23(k)(4) to EPA. 

Under proposed paragraph 

§ 122.23(k)(3), EPA would conduct 

outreach to CAFOs in the targeted area 

for at least [30 days] prior to the start of 

any reporting period to notify 

operations that they are required to 

report the information specified in 

proposed paragraph § 122.23(k)(4) to 

EPA. EPA seeks comment on ways to 

inform and reach CAFOs in targeted 

areas if they are required to provide 

information. EPA also seeks comment 

on the timeframe provided for outreach 

to CAFOs in targeted areas. 

7. When would CAFOs in a focus 

watershed be required to submit the 

information to EPA? 

If EPA needed to use 308 authority to 

collect information from CAFOs, after 

the end of EPA’s outreach period for 

CAFOs in the targeted area, CAFOs 

would have [90 days] to submit the 

information to EPA. EPA would identify 

the specific deadline for submitting the 

information during EPA’s outreach 

period as well as by publishing the 

deadline in the Federal Register notice, 

which is required at least [30] days 

before the beginning of any information 

submission period. 

EPA seeks comment on the amount of 

time a CAFO in a targeted area would 

need to submit the information to EPA. 

8. How would CAFOs in a focus 

watershed submit information to EPA? 

If EPA needed to use 308 authority to 

collect information from CAFOs, CAFOs 

in focus watersheds would submit the 

information in the same manner as 

specified in proposed option 1 for 

collecting information from all CAFOs. 

Specifically, proposed paragraph 

§ 122.23(k)(5) would require the owner 

or operator of a CAFO to submit the 

official survey form electronically using 

the Agency’s information management 

system available on EPA’s Web site. 

EPA proposes to waive the electronic 

submission requirement if the 

information management system is 

otherwise unavailable or the use of the 

Agency’s information management 

system would cause undue burden or 

expense over the use of a paper survey 

form. See section How would CAFOs 


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submit the information to EPA of this 

preamble for a detailed discussion. EPA 

seeks comment on the data submission 

approach in proposed paragraph 

§ 122.23(k)(5). 

E. Failure To Provide the Information as 

Required by This Proposed Rulemaking 

Under Option 1, and under Option 2 

in cases where EPA used its section 308 

authority to collect information from 

CAFOs in focus watersheds, CAFO 

owners or operators that failed to submit 

the information in accordance with the 

requirements specified in proposed 

paragraph § 122.23(k) would be in 

violation of the CWA. Section 309 of the 

CWA provides for administrative, civil 

and criminal penalties for violations of 

section 308 of the Act. 33 U.S.C. 1319. 

EPA assesses monetary penalties 

associated with civil noncompliance 

using a national approach as outlined by 

the Agency’s general penalty policy. 

More information on the amounts and 

calculations of civil penalties is 

available at http://cfpub.epa.gov/ 

compliance/resources/policies/civil/ 

penalty/. Additional information on 

criminal noncompliance, is available at 

http://cfpub.epa.gov/compliance/ 

resources/policies/civil/penalty/. 

F. Alternative Approaches To Achieve 

Rule Objectives 

The objective of this proposed action 

is to improve and protect water quality 

impacted by CAFOs. However, EPA 

recognizes that there may be other ways 

to achieve this objective, and the 

Agency solicits comment on alternative 

approaches to meet the objectives of this 

proposed rule. Such alternative 

approaches may require rulemaking. 

EPA would consider any such suggested 

alternative approaches in developing 

the final rule. 

EPA describes three such alternative 

approaches in this section and seeks 

public comment on these approaches. 

EPA seeks public comment on 

alternative approaches to a data 

collection request for CAFOs including: 

(1) An approach that would obtain data 

from existing data sources, (2) an 

approach that would expand EPA’s 

network of compliance assistance and 

outreach tools and (3) an approach 

requiring NPDES authorized states to 

submit the information as specified by 

proposed paragraph § 122.23(k)(2) to 

EPA, which would require rulemaking. 

EPA also seeks comment on other 

alternative approaches besides the three 

discussed herein that could achieve the 

same objectives. Any one of these three 

alternative approaches could be 

enhanced by stewardship and 

recognition programs, education or 

assistance programs or incentive based 

programs, carried out in coordination 

with other partners such as states, 

industry or USDA, and could result in 

improvements in industry practices 

more quickly than a data collection 

effort. EPA solicits comment on 

programs such as these that could be 

employed to ensure that CAFOs are 

implementing measures to protect water 

quality. 

1. Use of Existing Data Sources 

One alternative approach to the 

proposed rule would be to rely on the 

use of available existing sources of data 

on CAFOs, such as information from 

USDA, states, environmental 

organizations and other interested 

stakeholder groups. The discussion 

below describes the sources of 

information that currently exist, 

identifies some of the limitations EPA 

faces in using these sources and seeks 

comment on ways in which EPA could 

leverage these sources collectively to 

address impacts from CAFOs. 

a. U.S. Department of Agriculture Data 

The U.S. Department of Agriculture is 

a leading source of national, publicly 

aggregated agricultural data. Federal law 

prohibits USDA from disclosing or 

using data collected unless the 

information has been converted into a 

statistical or aggregate form that does 

not allow the identification of the 

person who supplied particular 

information 7 U.S.C. 2276(a); see also 7 

U.S.C. 8791(b)(2)(A); Confidential 

Information Protection and Statistical 

Efficiency Act, 44 U.S.C. 3501(2002). 

Accordingly, USDA withholds any 

county-level data if that information 

would identify individual producers. In 

counties where no data are available, 

the USDA indicates where data is 

omitted because of disclosure 

limitations or because no CAFOs are in 

operation. 

EPA currently uses the publicly 

available aggregate data from USDA 

categorized by animal size thresholds 

defined by the CAFO rule to refine 

estimates of the CAFO universe, assess 

animal densities by counties, and 

identify the number of operations in 

those counties. EPA also can determine 

from the USDA aggregate data the 

cumulative number of acres that are 

available for land application at CAFOs, 

as the total number of acres by county 

but not by facility. To obtain facilityspecific data, EPA is considering ways 

in which the Agency could combine the 

publicly available, aggregated data from 

USDA with other data sources to obtain 

a comprehensive, consistent national 

inventory of CAFOs to assess and 

address their impacts on water quality. 

b. State Permitting Programs 

State NPDES permitting programs 

should have data on permitted CAFOs, 

which could provide answers to the 

proposed survey questions in today’s 

notice. EPA estimates that 

approximately 8,000 CAFOs out of a 

total universe of 20,000 CAFOs have 

obtained permit coverage under the 

NPDES program. Authorized states have 

information from permit applications 

and annual reports for CAFOs with 

permit coverage. Although not all states 

have made this information 

electronically accessible, some states 

have online databases or maps that 

display CAFO data. For example, 

Missouri requires permit coverage for all 

CAFOs as well as a subset of operations 

with less than 1,000 animal units and 

displays a map of these operations in 

relation to waters of the state (http:// 

www.dnr.mo.gov/env/wpp/afo.htm). 

Missouri Department of Natural 

Resources uses this information to link 

permitted operations with specific 

classified stream segments in order to 

facilitate water quality based planning, 

total maximum daily load (TMDL) 

development and reports required under 

section 305(b) of the CWA. Similarly, in 

North Carolina all animal feeding 

operations with a permit, whether under 

the NPDES program or under other state 

permitting programs, are listed in a 

spreadsheet that can be downloaded 

(http://portal.ncdenr.org/web/wq/aps/ 

afo/perm). The spreadsheet contains 

information on the number of animals at 

the operation, type of permit issued to 

an operation and latitude and longitude 

information for 2,711 operations. 

While those two states are examples 

of comprehensive sources of 

information that are electronically 

available, other states maintain CAFO 

records in paper copy, which may not 

be complete or readily available. In 

addition, information on unpermitted 

CAFOs generally is not available via 

state records. Currently, EPA provides 

registered users, such as states, the 

ability to track permit issuance, permit 

limits and monitoring data through the 

Integrated Compliance Information 

System (ICIS) or through the Online 

Tracking Information System (OTIS), 

which integrates ICIS data with 

information from other databases such 

as EPA’s Permit Compliance System 

(PCS). EPA estimates that only 15 to 20 

percent of CAFO permit data is stored 

in one of these two systems because 

many states use separate databases to 

manage and implement permitting 

programs. A further challenge in 


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aggregating state permitting data is that 

the information collected is not based 

on a national standardized reporting 

scheme. Reporting inconsistencies 

across jurisdictions would prevent EPA 

from compiling a consistent national 

summary of CAFO information. Thus, a 

national inventory based solely on state 

data would not be comprehensive. 

EPA solicits comment on ways in 

which data from state permitting 

authorities could be used in conjunction 

with other sources of information, such 

as the publicly available aggregate data 

from USDA, to obtain a comprehensive, 

consistent national inventory of CAFOs 

to assess and address their impacts on 

water quality. 

c. State Registration or Licensing 

Programs 

Permitting programs administered by 

the state are not the sole source of state 

information on CAFOs. Many state 

agriculture departments have 

registration or licensing programs that 

collect information from livestock farms 

separately from environmental 

permitting requirements. Such sources 

could be used as a source of information 

for the unpermitted universe. However, 

EPA’s investigation of those data 

sources indicates that registration or 

licensing programs typically provide 

only contact information. 

Despite the limited information 

available from registration and licensing 

programs, these sources may 

nevertheless provide a comprehensive 

list of facilities in a particular sector, 

which EPA could use to supplement 

information available from a state 

permitting program. For example, in 

Arkansas, state law requires poultry 

operations confining 2,500 or more 

birds on any given day to register with 

the county conservation districts. 

Information that could be obtained from 

this registration list includes: Number 

and kind of poultry housed; location of 

the operation; litter management system 

used and its capacity; acreage controlled 

by the operation; litter land applied 

during the last year; amount and 

destination of litter transferred; amount 

of litter utilized by the producer and the 

type of utilization; and the name of the 

poultry operation’s processor. 

Similarly, dairy licensing programs 

contain site-specific information, which 

may be publicly available. For example, 

the Ohio Department of Agriculture 

requires milk producers of grade A and 

manufactured milk to obtain a license 

prior to operation. As part of this 

process, a milk producer must provide 

evidence of a safe water supply and 

submit prepared plans for the 

milkhouses, milking barns, stables and 

parlors at the operation. Ohio 

Department of Agriculture provides a 

list by county of the number of active 

dairy farms in the state (http:// 

www.agri.ohio.gov/apps/ 

DairyFarmsReport/ 

FarmsReportPage.aspx). This 

information could be used in 

conjunction with the USDA’s publicly 

available aggregate data to determine 

CAFO locations by county in Ohio. 

EPA seeks comment on the 

availability of registration and licensing 

lists and whether information obtained 

from such programs could be shared 

with EPA. If so, such data could also be 

used as part of a comprehensive effort 

to address CAFO impact on water 

quality. EPA seeks input on ways in 

which data from these lists could be 

used in conjunction with other sources 

of information, such as USDA’s publicly 

available aggregated data, to obtain a 

comprehensive, consistent national 

inventory of CAFOs to assess and 

address their impacts on water quality. 

d. Satellite Imagery and Aerial 

Photographs 

EPA, states, and academic institutions 

have used satellite imagery to locate and 

map CAFOs. For example, through a 

cooperative agreement with EPA, 

Jacksonville State University and 

Friends of Rural Alabama (JSU and 

FRA) created the American 

Environmental Geographic Information 

System (http://www.aegis.jsu.edu/) to 

assist in watershed analyses and 

planning. This system provides maps 

and environmental data for a variety of 

industries, including animal feeding 

operations, in a select number of eastern 

states. JSU and FRA visually scanned 

satellite images for structures commonly 

used to confine animals. Clusters of 

long, white buildings were identified as 

poultry operations or as swine 

operations, when an open-air pit or 

lagoon system was visible. 

EPA also has used aerial flyovers to 

obtain real time aerial photography for 

a variety of purposes, including 

identifying and updating the universe of 

CAFOs, identifying potential illegal 

discharges from CAFOs to waters of the 

United States. and prioritizing followup site inspections. While resource 

intensive, flyovers can be used to cover 

specific geographic areas and/or areas 

with difficult terrain. 

These methodologies present certain 

limitations as a source of data on 

CAFOs. While satellite imagery and 

aerial photographs may identify location 

information for some animal feeding 

operations, a user may not be able to 

determine whether structures actually 

contained animals, whether an 

operation met the regulatory definition 

of a CAFO or had NPDES permit 

coverage. Therefore, this information 

source is most useful when 

supplemented by on-the-ground efforts 

to confirm site-specific information. For 

example, location information from 

aerial photography or satellite images 

may be combined with state and county 

Web sites that provide tax parcel 

information, building histories and 

permit histories, so as to identify animal 

feeding operations that may meet the 

CAFO requirements for obtaining a 

permit. EPA solicits comment on other 

ways to augment information from 

satellite images and aerial photography 

location information to obtain a 

comprehensive, consistent national 

inventory of CAFOs to assess and 

address their impacts on water quality. 

e. Reporting Requirements Under Other 

Programs 

EPA’s Assessment, TMDL Tracking 

and Implementation System (ATTAINS) 

database (http://www.epa.gov/waters/ir) 

displays water quality findings reported 

by the states under section 305(b) and 

section 303(d) of the Clean Water Act. 

These findings represent state decisions 

as to whether assessed waters are 

meeting their water quality standards. 

Assessment decisions are made by the 

states based primarily on monitoring 

targeted to areas known or suspected to 

be impaired and may not fully represent 

all conditions within a state. While not 

all waters are assessed, the database 

identifies which watersheds are 

impaired. The findings are updated in 

the database as new state Integrated 

Reports (305b and 303d) are received, 

reviewed and posted and may reflect 

2010, 2008, or 2006 data from states, 

depending on their latest submission. 

EPA seeks comment on ways in which 

impairment information from this 

source can be compared to CAFO data, 

such as animal density or number of 

operations, to inform efforts to address 

water quality impacts from CAFOs. 

Although on a separate track from this 

proposed rule, EPA is currently in the 

process of developing a rulemaking to 

amend reporting requirements for 

livestock operations on air emissions 

under the Comprehensive 

Environmental Response, 

Compensation, and Liability Act 

(CERCLA) section 103 and (Emergency 

Planning & Community Right-to-Know 

Act) EPCRA section 304. This 

information collection effort may offer 

an alternative means of collecting data 

on livestock operations that would meet 

the Agency’s Clean Water Act needs. As 

the Agency moves forward with the 

CERCLA/EPCRA reporting requirements 


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proposed rulemaking, there is an 

opportunity to explore how to leverage 

reporting to EPA from livestock 

operations to meet information needs 

under CERCLA/EPCRA and the CWA 

simultaneously. EPA solicits comment 

on ways in which this could be 

achieved to obtain a comprehensive, 

consistent national inventory of CAFOs 

to assess and address their impacts on 

water quality. 

f. Other Sources of Data 

Nongovernmental entities have 

published reports on CAFOs, such as 

the Food & Water Watch Report— 

Factory Farm Nation: How American 

Turned Its Livestock Farms into 

Factories and the Pew Commission 

report—Putting Meat on the Table: 

Industrial Farm Animal Production in 

America. These reports provide helpful 

background information and case 

studies. EPA currently uses the results 

of these studies to identify research 

needs but solicits comments on how 

such reports could enhance additional 

EPA efforts to reduce water quality 

impairments from CAFOs. 

Extension agents and conservation 

programs also have information on 

CAFOs. EPA solicits comment on how 

the Agency could work with state 

cooperative extension programs, land 

grant universities and other 

conservation programs to gather 

information on CAFOs and to 

coordinate efforts to protect water 

quality. In general, these sources only 

release aggregated data and may not 

specifically focus on operations that 

meet EPA’s definition of a CAFO. 

In summary, through this alternative 

approach, EPA could combine a variety 

of existing data sources to determine 

where CAFOs are located and overlay 

this information with existing data on 

impaired waterbodies to determine 

where regulatory activities should be 

focused. While existing data sources are 

not consistent and are not 

comprehensive nationwide, the Agency 

seeks comment on how these sources, as 

well as additional sources not described 

herein, could be used collectively to 

protect water quality from CAFO 

discharges rather than promulgating a 

survey requirement for all CAFOs to 

provide information. 

2. Alternative Mechanisms for 

Promoting Environmental Stewardship 

and Compliance 

Under this alternative approach, EPA 

would expand its network of 

compliance assistance, outreach tools 

and partnerships with industry to assist 

in addressing the most significant water 

quality problems. Comprehensive 

compliance assistance and outreach 

efforts are tools a regulatory program 

can use in partnerships with industry to 

proactively protect and maintain water 

quality. 

EPA recognizes that stewardship and 

recognition programs, education or 

technical assistance programs and 

incentive based programs, often carried 

out in coordination with other partners 

such as states, industry, or USDA, could 

result in improvements in industry 

practices more quickly than a data 

collection effort. Two current examples 

of such programs are: (1) The Ag Center, 

(http://www.epa.gov/agriculture), which 

provides compliance and environmental 

stewardship information related to 

animal feeding operations and partners 

with USDA and state land grant 

universities to promote environmental 

stewardship and improve manure and 

nutrient management practices; and (2) 

EPA’s partnership with USDA’s 

extension program, offering a wide 

range of compliance and environmental 

stewardship information for livestock 

operators through the Livestock and 

Poultry Environmental Learning Center 

available at http://www.extension.org/ 

animal_manure_management. EPA 

solicits comment on how best to use 

alternative mechanisms such as these to 

ensure CAFOs are implementing 

measures to protect water quality. This 

approach would not require a 

rulemaking; rather it would focus on the 

use of activities that already are 

authorized under existing regulations. 

The success of such efforts would 

depend in large part on coordination 

with EPA’s state partners and the 

cooperation and assistance of industry 

and environmental groups. 

3. Require Authorized States To Submit 

CAFO Information From Their CAFO 

Regulatory Programs and Only Collect 

Information From CAFOs if a State Does 

Not Report 

This alternative regulatory approach, 

is a variation of the proposed approach 

and would require NPDES authorized 

state regulatory agencies to submit the 

information proposed by paragraph 

§ 122.23(k)(2). Many states may know 

the universe of CAFOs in their state to 

ensure proper implementation and 

enforcement of the CWA’s permitting 

requirements and to protect water 

quality. 

Although EPA recognizes that states 

may not have information on all CAFOs 

in their state, this alternative approach 

would require states to provide 

information for CAFOs for which they 

do have information as part of their 

CAFO regulatory programs. As a result, 

the data EPA would collect would not 

necessarily be comprehensive. Under 

this approach, EPA would only require 

information from CAFOs where a state 

failed to provide the required 

information to EPA. 

It is likely that a number of states 

already have the information that would 

be required by proposed paragraph 

§ 122.23(k)(2) for NPDES permitted 

CAFOs. Some states require CAFOs that 

have not sought coverage under an 

NPDES permit to obtain a separate state 

permit. For example, Maryland requires 

CAFOs that discharge to obtain NPDES 

CAFO permits and CAFOs that do not 

discharge to obtain state Maryland 

Animal Feeding Operation (MAFO) 

permits. Other states may have access to 

other data sources for CAFOs that could 

be used to provide the information. 

Under this alternative approach, each 

state would be required to report the 

information to EPA. States would be 

required to submit the information 

within a given timeframe, and EPA 

would compile that information into a 

database. CAFOs would be required to 

provide whatever information a state 

fails to provide. 

EPA seeks comment on whether 

authorized states should be required to 

provide information from their CAFO 

regulatory programs on behalf of the 

CAFOs within their boundaries. EPA 

also seeks comment on whether it 

should allow states to submit data from 

CAFO from sources other than a state 

regulatory program. EPA also seeks 

comment on, if it selects this alternative, 

whether EPA should allow or require 

CAFOs to review the information in the 

database. 

IV. Impact Analysis 

A. Benefits and Costs Overview 

When EPA issued the revised CAFO 

regulations on February 12, 2003, it 

estimated annual pollutant reductions 

due to the revisions at 56 million 

pounds of phosphorus, 110 million 

pounds of nitrogen and two billion 

pounds of sediment. This proposed 

rulemaking would not alter the benefits 

calculated in the 2003 rule. The effect 

of the proposed rule would be to enable 

full attainment of the benefits calculated 

in the 2003 rule by furnishing EPA with 

information on the universe of CAFOs. 

To date, EPA estimates that 

approximately 58 percent of CAFOs do 

not have NPDES permits. The 

information collected under this 

proposal would help ensure that CAFOs 

that discharge have NPDES permit 

coverage necessary to achieve these 

environmental benefits. 

The proposed rulemaking would not 

alter any permitting requirements or the 


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technical requirements under the 

Effluent Limitations Guidelines and 

Standards (ELGs), so CAFOs would not 

incur any compliance costs associated 

with modifications to structures or 

operational practices. The only cost 

associated with this rule to affected 

entities is the reporting burden to 

provide the required information to EPA 

as specified in this proposal. 

B. Administrative Burden Impacts 

Since there is no change in technical 

requirements, cost impacts to CAFOs 

are exclusively due to changes in the 

information collection burden. To 

determine the administrative burden for 

the Paperwork Reduction Act (PRA) 

analysis, the Agency projected the 

burden that CAFOs would incur 

because of the new requirements. 

To complete this projection, the 

Agency started with its current estimate 

of the total number of CAFOs in the U.S. 

and then examined the administrative 

burden that would be incurred by these 

operations. It is important to note that 

while EPA’s estimates of CAFOs are 

adequate for purposes of completing the 

impact analyses required under statute 

and executive order, the data are 

insufficiently detailed for purposes of 

identifying precise locations of specific 

CAFOs or clusters of CAFOs, 

understanding their operational 

practices and assessing their potential 

environmental impacts. 

EPA’s most recent information on the 

number of CAFOs in the U.S. shows that 

as of 2010 there were approximately 

20,000 CAFOs, both permitted and 

unpermitted. To estimate the reporting 

burden faced by these CAFOs under the 

proposed rule requirements, EPA 

examined its prior PRA analyses. These 

analyses had assumed that CAFOs 

applying for NPDES permit coverage 

would incur a nine hour administrative 

burden to complete and file NPDES 

permit applications or notices of intent. 

Based on comparing the reporting items 

for permit applications to the reporting 

items in the proposed rulemaking, EPA 

estimated that a CAFO would need one 

hour to gather and submit the 

information on the proposed survey 

form to EPA as indicated in the 

proposed rulemaking. This burden 

estimate reflects both the time to 

understand the reporting requirements 

as well as time to complete the survey 

form electronically or by paper, when 

necessary. 

EPA’s PRA analysis combines the 

updated estimates of numbers of CAFOs 

and the estimates of the reporting 

burden to project that CAFO operators 

would collectively experience an 

increase in total annual administrative 

burden of approximately $0.2 million 

under the first proposed option where 

all CAFOs would submit their 

information to EPA. The costs 

associated with the option to collect 

information only from CAFOs in focus 

watersheds would be a subset of these 

costs. 

Under the requirements as laid out in 

proposed paragraph § 122.23(k)(5) for 

the first proposed option, state 

permitting authorities would not incur 

any administrative burden arising out of 

the rulemaking since CAFOs would 

report their information directly to EPA. 

States would have the option of 

submitting information on their CAFOs 

electronically; however, EPA anticipates 

that the states that would choose this 

option are those for whom this type of 

batch reporting would not impose an 

undue burden. 

This Federal Register notice also 

includes an alternative approach that 

would require states to provide 

information on CAFOs in their state. 

EPA costed this alternative approach 

separately in the proposed rule 

supporting analysis. Under this 

approach, the reporting burden would 

shift from CAFOs to states since states 

would be responsible for reporting the 

data proposed to be collected to EPA. To 

complete a cost estimate for this 

approach, EPA estimated a cumulative 

incremental cost based on an 

assumption that all states would submit 

their CAFO records as paper files to the 

Agency. For purposes of costing this 

scenario, EPA estimated that it would 

take states one hour to prepare and 

submit records for 20 facilities. This 

labor burden combined with 

photocopying costs yielded a total state 

respondent average incremental annual 

cost of $16,391. EPA solicits comment 

on the burden analysis regarding the 

requirement for states to submit CAFO 

information from their regulatory 

programs. 

The documentation in the public 

record on the PRA analysis for this 

proposed rulemaking discusses more 

fully the assumptions used to project 

the associated administrative burden, 

including the burden faced by CAFOs 

that subsequently may need to update 

any information submitted previously. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51,735; October 4, 1993), this proposed 

action is a ‘‘significant regulatory 

action.’’ Accordingly, EPA submitted 

this proposed action to the Office of 

Management and Budget (OMB) for 

review under Executive Orders 12866 

and 13563 (76 FR 3821, January 21, 

2011) and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this proposed action. 

In addition, EPA prepared an analysis 

of the potential costs and benefits 

associated with this proposed action. 

This analysis is summarized in Section 

IV of this preamble above, entitled 

Impact Analysis. A copy of the 

supporting analysis is available in the 

docket for this action. 

B. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. The 

Information Collection Request (ICR) 

document prepared by EPA was 

assigned EPA ICR No. 1989.08. 

The proposed rule would require 

CAFOs to provide EPA with basic 

facility information. This action would 

provide EPA with the information on 

the universe of CAFOs it needs to 

ensure compliance with the CWA. EPA 

projects that the proposed rule would 

cause CAFO operators to experience an 

increase in annual administrative 

burden of 6,960 labor hours annually, 

which translates into an increased 

annual administrative cost of $0.2 

million. The increase in administrative 

costs is based on projecting submission 

costs for all CAFOs, and is derived 

exclusively from the recordkeeping and 

reporting requirements associated with 

submitting the required information to 

EPA as detailed in the proposed rule. 

EPA assumed for purposes of the PRA 

analysis that a CAFO would incur a 

labor burden of one hour for filing the 

required information. The proposed 

action would not impose any new 

capital costs on affected entities. The 

burden for the initial reporting is 

averaged over three years for purposes 

of calculating burden under the PRA. 

EPA requests comment on its estimate 

of burden and costs for CAFOs to 

comply with the reporting requirements 

in the two co-proposed rule options. 

Under the proposed rule, states would 

have the option of providing EPA with 

datasets on their CAFOs with existing 

NPDES permits. However, the effort to 

generate these datasets is not costed as 

part of the ICR since EPA assumes that 

the states that choose to provide the 

datasets to EPA would be the ones for 

whom this task would not be overly 


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burdensome, and the burden the states 

would incur would be in lieu of a 

comparable burden avoided by CAFOs 

that the states reported for. 

Additional details on the assumptions 

and parameters of the PRA analysis are 

available in the ICR document 

referenced above, which is available in 

the docket supporting this proposed 

rulemaking. Burden is defined at 5 CFR 

1320.3(b). 

A Federal agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

To comment on the Agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, EPA has established 

a public docket for this proposed rule, 

which includes the ICR, under Docket 

ID number EPA–HQ–OW–2011–0188. 

Please submit any comments related to 

the ICR to EPA and OMB. See 

ADDRESSES section at the beginning of 

this notice for where to submit 

comments to EPA. Send comments to 

OMB at the Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, 725 17th 

Street, NW., Washington, DC 20503, 

Attention: Desk Office for EPA. Since 

OMB is required to make a decision 

concerning the ICR between 30 and 60 

days after October 21, 2011, a comment 

to OMB is best assured of having its full 

effect if OMB receives it by November 

21, 2011. The final rule would respond 

to any OMB or public comments on the 

information collection requirements 

contained in this proposal. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires a Federal agency to 

prepare a regulatory flexibility analysis 

of any rule subject to notice and 

comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute unless the agency 

certifies that the rule would not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of this rule on small entities, small 

entity is defined as: (1) A small business 

based on Small Business Administration 

(SBA) size standards at 13 CFR 121.201; 

(2) a small governmental jurisdiction 

that is a government of a city, county, 

town, school district, or special district 

with a population of less than 50,000; 

and (3) a small organization that is any 

not-for-profit enterprise which is 

independently owned and operated and 

is not dominant in its field. 

After considering the economic 

impacts of this rule on small entities, I 

certify that this proposed action would 

not have a significant economic impact 

on a substantial number of small 

entities. This proposed rule does not 

change any of the substantive 

requirements for CAFO operators. While 

it does increase the net paperwork 

burden faced by facilities compared to 

the burden imposed under the 2003 

CAFO rule, these incremental costs are 

small compared to the existing 

paperwork burden faced by CAFOs and 

represent an increase in annualized 

compliance costs that is significantly 

less than one percent of estimated 

annual sales for any of the affected 

entities. To reach this determination, 

EPA examined sales figures reported in 

USDA’s publicly available aggregated 

data and concluded that it is unlikely 

that the estimated upper-bound burden 

impact of one hour per CAFO would 

exceed one percent of the average 

annual sales of any of the livestock 

operations for whom sales figures were 

reported. 

Additionally, this proposed rule 

would not affect small governments, as 

the permitting authorities are state or 

Federal agencies and the information 

would be submitted directly to EPA. 

EPA continues to be interested in the 

potential impacts of the proposed rule 

on small entities and welcomes 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on state, local, 

tribal governments and the private 

sector. Under section 202 of UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘federal mandates’’ that may result 

in expenditures by state, local and tribal 

governments, in the aggregate, or to the 

private sector, of $100 million or more 

in any one year. Before promulgating an 

EPA rule for which a written statement 

is needed, section 205 of the UMRA 

generally requires EPA to identify and 

consider a reasonable number of 

regulatory alternatives and adopt the 

least costly, most cost-effective, or least 

burdensome alternative that achieves 

the objectives of the rule. The 

provisions of section 205 do not apply 

when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective, 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates and 

informing, educating and advising small 

governments on compliance with the 

regulatory requirements. 

EPA has determined that this 

proposed rule does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for state, local and tribal governments, 

in the aggregate, or the private sector in 

any one year. The proposed rule also 

presents an alternative approach that 

would require states to submit 

information on CAFOs. EPA determined 

that this alternative approach, which 

principally would involve 

photocopying, would also not result in 

a burden above the threshold. Thus, this 

rule is not subject to the requirements 

of sections 202 and 205 of the UMRA. 

EPA has determined that this rule 

would contain no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

There are no local or tribal governments 

authorized to implement the NPDES 

permit program and the Agency is 

unaware of any local or tribal 

governments who are owners or 

operators of CAFOs. Thus, this rule is 

not subject to the requirements of 

section 203 of UMRA. 

E. Executive Order 13132: Federalism 

This proposed action does not have 

federalism implications. Since the 

reporting under the proposed rule 

would require CAFOs to submit their 

information directly to EPA, it would 

not have substantial direct effects on the 

states, on the relationship between the 

national government and the states, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The proposed 

rule would offer states the option of 

submitting information on behalf of the 

state’s CAFOs. However, the proposed 

rule would not require states to adopt 


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this option; therefore, EPA does not 

consider this proposed rule to have a 

substantial impact on states. Thus, 

Executive Order 13132 does not apply 

to this proposed action. 

EPA is requesting comment on 

alternative approaches for gathering 

CAFO information. One of these 

approaches would require States to 

submit information on their CAFOs. 

EPA examined costs associated with 

this alterative and concluded based on 

a conservative estimate of burden 

impacts that the alternative would not 

trigger federalism concerns. 

In the spirit of Executive Order 13132 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicits comment on this 

proposed action from state and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed action does not have 

tribal implications, as specified in 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because there are 

currently no tribal governments 

authorized for the NPDES program. In 

addition, EPA is not aware of any Indian 

tribal governments that own CAFOs that 

would be subject to the proposed 

reporting requirements. Thus, Executive 

Order 13175 does not apply to this 

action. 

This proposed rulemaking could have 

the effect of providing increased 

opportunities for the tribal governments 

to obtain information on all CAFOs 

within their governmental boundaries 

and, as such, may facilitate their 

interactions with entities of possible 

concern. 

In the spirit of Executive Order 13175 

and consistent with EPA policy to 

promote communications between EPA 

and tribal governments, EPA would also 

distribute information on the outcome 

of the rulemaking process once the 

rulemaking action is finalized. 

EPA solicits comment on the 

Agency’s approach to meeting its 

obligations under E.O. 13175 for the 

proposed action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19,885; 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866 and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This proposed rule is not subject to 

Executive Order 13045 because it is not 

economically significant as defined in 

Executive Order 12866 and because the 

Agency does not have reason to believe 

the environmental health or safety risks 

addressed by this proposed action 

present a disproportionate risk to 

children. The benefits analysis 

performed for the 2003 CAFO rule 

determined that the rule would result in 

certain significant benefits to children’s 

health. (Please refer to the Benefits 

Analysis in the record for the 2003 

CAFO final rule.) This proposed action 

does not affect the environmental 

benefits of the 2003 CAFO rule. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211 (66 FR 28355 (May 22, 2001)), 

because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. EPA has 

concluded that this rule is not likely to 

have any adverse energy effects since 

CAFOs in general do not figure 

significantly in the energy market, and 

the regulatory revisions finalized in this 

rule are not likely to change existing 

energy generation or consumption 

profiles for CAFOs. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve the use of technical standards. 

Therefore, EPA is not considering the 

use of any voluntary consensus 

standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that the 

information collected by this rule could 

benefit minority and low-income 

populations by providing information 

on nearby CAFOs with potential effects 

on neighboring communities. In 

addition, the Agency anticipates that the 

information to be collected under the 

rulemaking would aid EPA’s 

consideration of environmental justice 

concerns as the Agency moves forward 

with implementation of the NPDES 

CAFO program. 

As part of EPA’s continued effort to 

meet its obligations under E.O. 12898, 

the Agency has completed an analysis to 

identify those portions of the country 

where there are both large numbers of 

CAFOs as well as concentrations of 

minority and low-income populations. 

These regions include parts of the 

Carolina lowlands, central California 

and the Delmarva Peninsula on the 

Chesapeake Bay. 

EPA solicits comment on the ability of 

the questions as proposed to support 

consideration of environmental justice 

(EJ) concerns related to future design 

and implementation of the NPDES 

CAFO program. EPA seeks comment on 

what other questions beyond those 

proposed would support EJ concerns 

and be valuable to EJ communities. EPA 

welcomes suggestions for EJ groups who 

could help shape the Agency’s outreach 

to EJ communities. EPA also seeks 

comment on its analysis supporting E.O. 

12898, which shows where large 

numbers of CAFOs and EJ communities 

co-exist. The supporting analysis is 

contained in the docket for the proposed 

rulemaking. 


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INSTRUCTION SHEET 

GENERAL INSTRUCTIONS 

Defined Terms 

Terms in italics below are specifically 

defined in the Survey Form Definitions 

section of these instructions. Refer to 

this section for specific meaning of 

these terms. 

Purpose of Form 

Owners of concentrated animal 

feeding operations (CAFOs) must use 

this survey form to submit the 

information required by 40 CFR 

122.23(k). 

Who Must File 

Owners of CAFOs are required to 

submit the information specified at 40 

CFR 122.23(k) regardless of whether the 

CAFO is required to seek NPDES permit 

coverage. For the purposes of this 

survey, a CAFO means an animal 

feeding operation (AFO) that is defined 

as a Large CAFO or Medium CAFO by 

40 CFR 122.23(b), or that is designated 

as a CAFO in accordance with 40 CFR 

122.23(c). Further definitions for the 

purpose of this form are in the section, 

Survey Form Definitions. The owners of 

AFOs that have not been designated and 

that do not confine the required number 

of animals to meet the definition of a 

Large or Medium CAFO are not required 

to submit information. 

Where to Submit 

Send the completed and signed 

survey form to: 

U.S. EPA, Office of Water, Office of 

Wastewater Management, Mail Code 

4203M, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460 

When to Submit 

Under proposed option 1, owners of 

CAFOs must submit the survey form to 

EPA [within 90 days after EPA makes 

available a list of CAFOs for which a 

state has provided the information] and 

under proposed option 2, owners of 

CAFOs must submit the survey form by 

[the deadline specified in a separate 

Federal Register Notice]. NPDES 

authorized states that choose to submit 

the information on behalf of a CAFO 

would be required to submit the 

information to EPA [within 90 days after 

the effective date of the rule]. 

Subsequently, under proposed option 1, 

owners of CAFOs not authorized by an 

NPDES permit must resubmit the survey 

form between [January 1 and June 1, 

2022] and every subsequent tenth year 

thereafter between [January 1 and June 

1]. The survey form provides a checkbox 

that indicates such resubmissions. 

Entering Responses 

CAFOs must provide the information 

on this survey form electronically 

except where electronic submission 

would cause an undue burden or 

expense. Electronic submissions may be 

made via the Agency’s information 

management system. Please go to 

www.epa.gov/npdes/afo for more 

information on how to submit. 

However, EPA is making paper filing 

available in recognition that not 

everyone has internet access. If using a 

hardcopy of the form to submit the 

information, use blue or black ink only 

to complete a hardcopy of the survey 

form. Mark the electronic submission 

waiver box and provide a reason why 

the respondent is providing the 

information by completing and 

submitting a hard copy of this survey 

form. 

Please print clearly. Mark all 

applicable checkboxes with an ‘‘X’’. 

Changes at the operation after the 

owner submits this information are not 

required to be reported, except that 

CAFOs not authorized by an NPDES 

permit must resubmit the survey form 

every 10 years as specified above. 

Confidential Business Information 

Regulations governing the 

confidentiality of business information 

are contained in the Code of Federal 

Regulations (CFR) at Title 40 Part 2, 

Subpart B. Under sections 2.208, 

business information is entitled to 

confidential treatment if, ‘‘the business 

has satisfactorily shown that disclosure 

of the information is likely to cause 

substantial harm to the business’s 

competitive position. You may assert a 

business confidentiality claim covering 

part or all of the information you 

submit, as described in 40 CFR 2.203(b): 

‘‘(b) Method and time of asserting 

business confidentiality claim. A 

business which is submitting 

information to EPA may assert a 

business confidentiality claim covering 

the information by placing on or 

attaching to the information, at the time 

it is submitted to EPA, a cover sheet, 

stamped or typed legend, or other 

suitable form of notice complying 

language such as ‘trade secret’, 

‘proprietary,’ or ‘company confidential.’ 

Allegedly confidential portions of 

otherwise nonconfidential documents 

should be clearly identified by the 

business, and may be submitted 

separately to facility identification and 

handling by EPA. If the business desires 

confidential treatment only until a 

certain date or until the occurrence of a 

certain event, the notice should so 

state’’ 


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If you claim any response as CBI, you 

must specify the portion of the response 

or document for which you assert a 

claim of confidentiality by reference to 

page numbers, paragraphs, and lines, or 

specify the entire response or document. 

This information must be provided as 

part of the submission of the completed 

survey form. Note that EPA will review 

the information submitted and may 

request your cooperation in providing 

information to identify and justify the 

basis of your CBI claim. Information 

covered by a claim of confidentiality 

will be disclosed by EPA only to the 

extent of, and by means of, the 

procedures set forth in 40 CFR Part 2, 

Subpart B. In general, submitted 

information protected by a business 

confidentially claim may be disclosed to 

other employees, officers, or authorized 

representatives of the United States 

concerned with implementing the Clean 

Water Act. 

SURVEY FORM INSTRUCTIONS 

Submission Information 

Please check the appropriate box to 

indicate whether the CAFO is supplying 

information for the first time or 

resubmitting the survey form. A CAFO 

may also voluntarily update their 

information if the operation is no longer 

a CAFO. 

Section 1. Contact Information 

Use legal names. Provide the mailing 

address for the owner of the CAFO or 

authorized representative. The address 

may be a business address, a post office 

box, or the address of the CAFO owner 

or authorized representative. A county 

road number may indicate the 

operation’s street address. 

Section 2. Location Information 

Provide location of the production 

area either by the latitude and longitude 

for the production area or by the street 

address of the CAFO’s production area. 

Please provide latitude or longitude in 

degree decimals. For CAFOs that have 

multiple production areas, such as 

facilities under common ownership, 

that either adjoin each other or use a 

common area or system for waste 

disposal, the entrance to the production 

area for the largest portion of the CAFO 

should be provided. 

For the purposes of this form, the 

entrance to the production area may be 

a road leading to the confinement 

houses or the central point of access to 

the operation. This information is 

commonly included in a nutrient 

management plan or, alternatively, the 

respondent may determine the latitude 

and longitude for the entrance to the 

production area by using interactive 

maps available on the internet. Latitude 

or longitude information can be 

obtained at the following websites: 

http://www.satsig.net/maps/lat-longfinder.htm, http://earth.google.com/, 

and http://www.census.gov/geo/

landview/. If the units for the CAFO’s 

latitude or longitude is in minutes/ 

seconds, this information can be readily 

converted through a variety of free 

internet applications. 

The respondent need only provide 

either the CAFO’s latitude and 

longitude or the street address of the 

CAFO’s production area. 

Section 3. NPDES Permit Information 

Use the appropriate checkbox to 

indicate whether the CAFO has a 

current NPDES permit. A current 

NPDES permit would provide coverage 

to the CAFO as of the date the report is 

submitted. If you have an NPDES 

permit, check the ‘‘Yes’’ box and 

provide the NPDES permit number and 

the date of issuance for NPDES permit 

coverage. NPDES permit coverage may 

have been issued to the CAFO after 

submitting an individual NPDES permit 

application or a Notice of Intent (NOI) 

for coverage under a general NPDES 

permit. CAFOs should find their NPDES 

permit number on the copy of the 

permit for an individual permit or on 

the written notification from the 

permitting authority acknowledging 

receipt of the NOI. States may refer to 

the NPDES permit number as a tracking 

number, operating permit number, or 

state identification number. For 

example, Maryland identifies its general 

NPDES permit as ‘‘MDG01,’’ whereas, 

Missouri’s general operating permit 

number ‘‘MO–G010000.’’ 

If you do not have an NPDES permit, 

check the ‘‘No’’ box and go to Section 

4. Type and Number of Animals. If you 

applied for an NPDES permit but have 

not received any notice of coverage, 

please check the ‘‘Pending’’ box and 

provide the date that the NOI or NPDES 

permit application was submitted. 

Section 4. Type and Number of Animals 

Use the table to indicate the 

maximum number of animals for each 

animal type held either in open 

confinement including partially covered 

or housed totally under roof held at the 

CAFO for a total of 45 days or more in 

the previous 12 months. 

CAFOs with multiple production 

cycles should provide the maximum 

number of animals confined for any 

given production cycle. Multiple 

production cycles are common at 

poultry and swine operations. CAFOs 

under common ownership should report 

the cumulative number of animals 

confined for 45 days or more. 

It is important to note that the 45 days 

do not have to be consecutive, and the 

12-month period does not have to 

correspond to the calendar year. The 12- 

month does not have to correspond to 

the calendar year. If an animal is 

confined at an operation for any portion 

of a day, it is considered to be confined 

for a full day. Please see definition of an 

animal feeding operation of these 

instructions. 

EXAMPLE: A calf/cow operation that 

has the capacity to hold 2,000 head of 

cattle. The facility operates year-round 

and never confines less than 1,000 head 

of cattle at any one time. The facility has 

both pasture and partially opened barns. 

The operation meets the definition of a 

CAFO because: 1) it confines the 

required animal numbers to meet the 

Large CAFO threshold, 2) confines the 

animals for more than 45 days, and 3) 

the confinement area does not sustain 

vegetation. For the last 12-month 

period, the cow/calf operation split its 

calving between fall and spring. During 

the fall, the operation confined 1,500 

head of cattle for 45 days or more and 

during the spring, the operation 

confined 1,000 head of cattle. This 

operation should report in the table 

under calf/cow pairs and list 1,500 

under the column for ‘‘Open 

Confinement (include partially 

covered)’’. 

Section 5. Land Application 

Provide the amount of acres available 

for land application. Report in whole 

acres, rounding up to the nearest whole 

number if necessary. Include land 

associated with the CAFO, whether in 

production or not. Include all land that 

the owner or operator owned or rented 

during the previous 12-month period, 

even if only for part of the year, and any 

land that is owned by or rented or 

leased to others in which the owner or 

operator of the CAFO retains nutrient 

management decisions. This may also 

include situations where a farmer 

releases control over the land 

application area, and the CAFO 

determines when and how much 

manure is applied to fields not 

otherwise owned, rented, or leased by 

the CAFO. Exclude residential or other 

land not used for agricultural purposes. 

Section 6. Signature Requirements 

A responsible official in accordance 

with 40 CFR 122.22 must sign the 

certification statement provided on the 

form. Print the name of the signatory. 

Provide the date of signature and title of 

the signatory. 


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SURVEY FORM DEFINITIONS 

The definitions provided below are 

for the purposes of this information 

gathering survey form. All terms not 

defined below shall have their ordinary 

meaning, unless such terms are defined 

in the Clean Water Act, 33 U.S.C. 

§ 1362, or its implementing regulations 

found at 40 CFR parts 122 and 412 

respectively, in which case the statutory 

or regulatory definitions apply. 

1. ‘‘Animal feeding operation’’ means 

a lot or facility (other than an aquatic 

animal production facility) where 

animals have been, are, or will be, 

stabled, confined, and fed or maintained 

for a total of 45 days or more in any 12- 

month period and crops, vegetation, 

forage growth, or post-harvest residues 

are not sustained in the normal growing 

season over any portion of the lot or 

facility. (40 CFR 122.23(b)(1)). Two or 

more AFOs under common ownership 

are considered to be a single AFO for 

purposes of determining the number of 

animals at an operation, if they adjoin 

each other, are next to, sharing property 

lines or if they use a common area or 

system for manure management or the 

disposal of wastes. (40 CFR 

122.23(b)(2)). 

2. ‘‘Authorized representative’’ means 

an individual who is involved with the 

management or representation of the 

CAFO. An authorized representative 

must be located within reasonable 

proximity to the CAFO, and must be 

authorized and sufficiently informed to 

respond to inquiries from EPA on behalf 

of the CAFO. 

3. ‘‘Concentrated animal feeding 

operation’’ (CAFO) means an AFO that 

is defined as a Large CAFO or as a 

Medium CAFO by the terms of this 

paragraph, or that is designated as a 

CAFO in accordance with paragraph (c) 

of this section. Two or more AFOs 

under common ownership are 

considered to be a single AFO for the 

purposes of determining the number of 

animals at an operation, if they adjoin 

each other or if they use a common area 

or system for the disposal of wastes. 

4. ‘‘Large concentrated animal feeding 

operation’’ means an AFO that stables or 

confines as many as or more than the 

numbers of animals specified in any of 

the following categories: (i) 700 mature 

dairy cows, whether milked or dry; (ii) 

1,000 veal calves; (iii) 1,000 cattle other 

than mature dairy cows or veal calves. 

Cattle includes but is not limited to 

heifers, steers, bulls and cow/calf pairs; 

(iv) 2,500 swine each weighing 55 

pounds or more; (v) 10,000 swine each 

weighing less than 55 pounds; (vi) 500 

horses; (vii) 10,000 sheep or lambs; (viii) 

55,000 turkeys; (ix) 30,000 laying hens 

or broilers, if the AFO uses a liquid 

manure handling system; (x) 125,000 

chickens (other than laying hens), if the 

AFO uses other than a liquid manure 

handling system; (xi) 82,000 laying 

hens, if the AFO uses other than a liquid 

manure handling system; (xii) 30,000 

ducks (if the AFO uses other than a 

liquid manure handling system); or 

(xiii) 5,000 ducks (if the AFO uses a 

liquid manure handling system). 

5. ‘‘Manure’’ includes manure, or 

bedding or bedding material, hay, 

compost, and raw material or other 

materials commingled with manure that 

is to be land applied or set aside for 

disposal. 

6. ‘‘Medium concentrated animal 

feeding operation’’ means any AFO with 

the type and number of animals that fall 

within any of the ranges listed in 

paragraph (b)(6)(i) of this section and 

which has been defined or designated as 

a CAFO. An AFO is defined as a 

Medium CAFO if: (i) The type and 

number of animals that it stables or 

confines falls within any of the 

following ranges: (A) 200 to 699 mature 

dairy cows, whether milked or dry; (B) 

300 to 999 veal calves; (C) 300 to 999 

cattle other than mature dairy cows or 

veal calves. Cattle includes but is not 

limited to heifers, steers, bulls and cow/ 

calf pairs; (D) 750 to 2,499 swine each 

weighing 55 pounds or more; (E) 3,000 

to 9,999 swine each weighing less than 

55 pounds; (F) 150 to 499 horses; (G) 

3,000 to 9,999 sheep or lambs; (H) 

16,500 to 54,999 turkeys; (I) 9,000 to 

29,999 laying hens or broilers, if the 

AFO uses a liquid manure handling 

system; (J) 37,500 to 124,999 chickens 

(other than laying hens), if the AFO uses 

other than a liquid manure handling 

system; (K) 25,000 to 81,999 laying 

hens, if the AFO uses other than a liquid 

manure handling system; (L) 10,000 to 

29,999 ducks (if the AFO uses other 

than a liquid manure handling system); 

or (M) 1,500 to 4,999 ducks (if the AFO 

uses a liquid manure handling system); 

and (ii) Either one of the following 

conditions are met: (A) Pollutants are 

discharged into waters of the United 

States through a man-made ditch, 

flushing system, or other similar manmade device; or (B) Pollutants are 

discharged directly into waters of the 

United States which originate outside of 

and pass over, across, or through the 

facility or otherwise come into direct 

contact with the animals confined in the 

operation. 

7. ‘‘Owner or operator’’ means the 

property owner or any person who 

owns, leases, operates, controls, or 

supervises the operations at the CAFO. 

Any person who operates an AFO 

subject to regulation under the NPDES 

program may be involved with making 

day-to-day decisions about, or doing, 

such things as planting, harvesting, 

feeding, waste management, and/or 

marketing. The operator can include, 

but is not limited to, the owner, a 

member of the owner’s household, a 

hired manager, a tenant, a renter, or a 

sharecropper. 

8. ‘‘NPDES Permit’’ means an 

authorization, license, or equivalent 

control document issued by EPA or an 

‘‘approved State’’ to implement the 

requirements of the CWA NPDES 

permitting program and implementing 

regulations at 40 CFR parts 122, 123, 

and 124. 

9. ‘‘Process wastewater’’ means water 

directly or indirectly used in the 

operation of the AFO including but not 

limited to: spillage or overflow from 

animal or poultry watering systems; 

washing; cleaning, or flushing pens, 

barns, manure pits, or other AFO 

facilities; direct contact swimming, 

washing, or spray cooling of animals; or 

dust control. Process wastewater also 

includes any water which comes into 

contact with any raw materials, 

products, or byproduct including, 

manure, litter, feed, milk, eggs, or 

bedding. 

10. ‘‘Producer’’ means any grower, 

breeder, or person who otherwise raises 

animals for production. 

11. ‘‘Production area’’ means that part 

of an AFO that includes the animal 

confinement area, the manure storage 

area, the raw materials storage area, and 

the waste containment areas. The 

animal confinement area includes but is 

not limited to open lots, housed lots, 

feedlots, confinement houses, stall 

barns, free stall barns, milkrooms, 

milking centers, cowyards, barnyards, 

medication pens, walkers, animal 

walkways, and stables. The manure 

storage area includes but is not limited 

to lagoons, runoff ponds, storage sheds, 

stockpiles, under-house or pit storages, 

liquid impoundments, static piles, and 

composting piles. The raw materials 

storage area includes but is not limited 

to feed silos, silage bunkers, and 

bedding materials. The waste 

containment area includes but is not 

limited to settling basins, and areas 

within berms and diversions which 

separate uncontaminated storm water. 

Also included in the definition of 

production area is any egg washing or 

egg processing facility, and any area 

used in the storage, handling, treatment, 

or disposal of mortalities. 

12. ‘‘Storage pond’’ means an earthen 

impoundment used to retain manure, 

bedding, process wastewater (such as 

parlor water) and runoff liquid. 


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65456 Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Proposed Rules 

13. ‘‘Waste’’ and/or ‘‘wastes’’ means 

dredged spoil, solid waste, incinerator 

residue, sewage, garbage, sewage sludge, 

munitions, chemical wastes, biological 

materials, radioactive materials, heat, 

wrecked or discarded equipment, rock, 

sand, cellar dirt, and industrial, 

municipal, and agricultural waste, 

including but not limited to manure, 

litter, and/or process wastewater, 

discharged into water. 

Federal regulations require the 

certification to be signed as follows: 

A. For a corporation, by a principal 

executive officer of at least the level of 

vice president. 

B. For a partnership or sole 

proprietorship, by a general partner or 

the proprietor, respectively; or 

C. For a municipality, State, Federal, 

or other public facility, by either a 

principal executive officer or ranking 

elected official. 

Paper Reduction Act Notice 

The public reporting and 

recordkeeping burden for this collection 

of information is estimated to average 

one hour per response. The estimate 

includes time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

needed data, and completing and 

reviewing the collection of information. 

Send comments on the Agency’s need 

for this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, including through 

the use of automated collection 

techniques to the Director, Collection 

Strategies Division, U.S. Environmental 

Protection Agency (2822T), 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460. Include the OMB control 

number in any correspondence. Do not 

send the completed survey form to this 

address. 

List of Subjects 

40 CFR Part 9 

Environmental protection, Reporting 

and recordkeeping requirements. 

40 CFR Part 122 

Administrative practice and 

procedure, Confidential business 

information, Hazardous substances, 

Reporting and recordkeeping 

requirements, Water pollution control. 

Dated: October 14, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, chapter I of Title 40 of the 

Code of Federal Regulations is proposed 

to be amended as follows: 

PART 9—OMB APPROVALS UNDER 

THE PAPERWORK REDUCTION ACT 

1. The authority citation for part 9 

continues to read as follows: 

Authority: 7 U.S.C. 135 et seq., 136–136y; 

15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; 

21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 

1321, 1326, 1330, 1342, 1344, 1345(d) and 

(e), 1361; Executive Order 11735, 38 FR 

21243, 3 CFR, 1971–1975 Comp. p. 973; 42 

U.S.C. 241, 242b, 243, 246, 300f, 300g–1, 

300g–2, 300g–3, 300g–4, 300g–5, 300g–6, 

300j–1, 300j–2, 300j–3, 300j–4, 300j–9, 1857 

et seq., 6901–6992k, 7401–7671q, 7542, 

9601–9657, 11023, 11048. 

2. In § 9.1 the table is amended by 

adding an entry in numerical order 

under the indicated heading to read as 

follows: 

§ 9.1 OMB approvals under the Paperwork 

Reduction Act. 

* * * * * 

40 CFR citation 

OMB 

Control 

No. 

* * * * * 

EPA Administered Permit Programs: The 

National Pollutant Discharge Elimination 

System 

* * * * * 

122.23(k) ..................................... 2040– 

0250 

* * * * * 

PART 122—EPA ADMINISTERED 

PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

3. The authority citation for part 122 

continues to read as follows: 

Authority: The Clean Water Act, 33 U.S.C. 

1251 et seq. 

4. Section 122.23 is amended by 

adding paragraph (k) to read as follows: 

§ 122.23 Concentrated animal feeding 

operations (applicable to state NPDES 

programs, see § 1223.25) 

* * * * * 

Option 1 for Paragraph (k) 

(k) Information Gathering Survey for 

CAFOs. (1) All CAFOs must submit 

information to EPA. The owner(s) or 

operator(s) of a CAFO, as defined in 40 

CFR 122.23(b), must provide the 

information specified in paragraph 

(k)(2) of this section to the 

Administrator, except in cases where a 

state voluntarily fulfills this 

requirement on behalf of the owner(s) or 

operator(s) of CAFOs located within that 

state, according to the procedures 

specified in paragraph (k)(5) of this 

section. 

(2) Information to be submitted to the 

Administrator. The owner or operator of 

a CAFO or a state must provide the 

following information to the 

Administrator: 

(i) The legal name of the owner of the 

CAFO or an authorized representative, 

and their mailing address, e-mail 

address (if available) and primary 

telephone number. (An authorized 

representative must be an individual 

who is involved with the management 

or representation of the CAFO. The 

authorized representative must be 

located within reasonable proximity to 

the CAFO, and must be authorized and 

sufficiently informed to respond to 

inquiries from EPA on behalf of the 

CAFO); 

(ii) The location of the CAFO’s 

production area identified by the 

latitude and longitude; or by the street 

address; 

(iii) If the owner or operator has 

NPDES permit coverage as of [the 

effective date of final rule], the date of 

issuance of coverage under the NPDES 

permit, and the permit number. If the 

owner or operator has submitted an 

NPDES permit application or a Notice of 

Intent as of [the effective date of final 

rule] but has not received coverage, the 

date the owner or operator submitted 

the NPDES permit application or Notice 

of Intent; 

(iv) For the previous 12-month period, 

identification of each animal type 

confined either in open confinement 

including partially covered areas, or 

housed totally under roof at the CAFO 

for 45 days or more, and the maximum 

number of each animal type confined at 

the CAFO for 45 days or more; and 

(v) Where the owner or operator land 

applies manure, litter and process 

wastewater, the total number of acres 

under the control of the owner or 

operator available for land application. 

(3) Submission process for CAFOs. 

The owner or operator of a CAFO must 

submit the information specified in 

paragraph (k)(2) of this section using the 

survey form provided by the 

Administrator. The owner or operator of 

a CAFO must submit the survey form to 

the Administrator, either by certified 

mail, or electronically, through the 

Agency’s electronic information 

management system by the deadline 

specified in (k)(4) of this section. If 

submitting the survey form by certified 

mail, the owner or operator of a CAFO 

must indicate on the survey form that an 

electronic submission waiver applies 

and provide justification as to why 


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Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Proposed Rules 65457 

electronic submission would cause an 

undue burden or expense. 

(4) Deadline for submissions by 

owners or operators of CAFOs. (i) An 

operation defined or designated as a 

CAFO as of [the effective date of the 

final rule], where a state did not provide 

the required information to EPA in 

accordance with paragraph (k)(5) of this 

section. Where a state does not provide 

the information required by paragraph 

(k)(2) of this section in accordance with 

paragraph (k)(5) of this section, a CAFO 

must submit the information required 

by paragraph (k)(2) in accordance with 

paragraph (k)(3) [within 90 days] after 

EPA makes available a list of CAFOs for 

which a state has provided the 

information. 

(ii) CAFOs for which a state has 

provided the required information to 

EPA in accordance with paragraph 

(k)(5) of this section. CAFOs for which 

a state submitted the information 

required by paragraph (k)(2) of this 

section in accordance with paragraph 

(k)(5) of this section, may, but are not 

required to, provide information to EPA 

[within 90 days] after EPA makes 

available a list of CAFOs for which a 

state has provided the information. 

(iii) Resubmission requirement for 

CAFOs not authorized by an NPDES 

permit. CAFOs not authorized by an 

NPDES permit must submit the 

information specified in paragraph 

(k)(2) of this section or update 

information previously submitted, 

pursuant to the procedures specified by 

paragraph (k)(3) of this section, between 

January 1 and June 1 every ten years 

following 2012 (e.g., 2022, 2032, etc.). 

The periodic submission requirement 

applies to all CAFOs not authorized by 

an NPDES permit at the time of these 

dates, whether or not CAFOs at one 

point had permit coverage at any time 

prior to these dates. CAFOs established 

after the first 2012 information 

submission period that do not have 

NPDES permits are subject to this tenyear resubmission requirement. 

(5) Elements of state voluntary 

submissions. In order to fulfill the 

requirements of paragraphs (k)(1) and 

(k)(2) of this section on behalf of 

CAFOs, a state must: 

(i) Use the Agency’s electronic 

information management system to 

submit the information. 

(ii) Submit information from the 

state’s most recent application process, 

from a CAFO’s most recent annual 

report, or from another current 

information source, 

(iii) Submit the information [within 

90 days after the effective date of the 

rule]. 

Option 2 for Paragraph (k) 

(k) Information Gathering Survey for 

CAFOs in Focus Watersheds. (1) CAFOs 

in focus watersheds must submit 

information to EPA. The owner(s) or 

operator(s) of a CAFO, as defined in 40 

CFR 122.23(b), located in a focus 

watershed as identified by EPA as 

provided in paragraph (k)(2) of this 

section, must, if so notified as provided 

in paragraph (k)(3), provide the 

information specified in paragraph 

(k)(4) of this section to the 

Administrator according to the 

procedures specified in paragraph (k)(5) 

of this section by the deadline specified 

in (k)(6) of this section. 

(2) How will EPA identify a focus 

watershed? To identify a focus 

watershed, EPA shall: 

(i) Determine that the area has water 

quality concerns associated with 

CAFOs, including but not limited to 

nutrients (nitrogen and phosphorus), 

pathogens (bacteria, viruses, protozoa), 

total suspended solids (turbidity) and 

organic enrichment (low dissolved 

oxygen), and consider one or more of 

the following criteria; 

(A) High priority watershed due to 

other factors such as vulnerable 

ecosystems, drinking water source 

supplies, watersheds with high 

recreational value, or watersheds that 

are outstanding natural resource waters 

(Tier 3 waters); 

(B) Vulnerable soil type; 

(C) High density of animal agriculture; 

and/or 

(D) Other relevant information; and 

(ii) Define the geographical location 

and extent of the focus watershed using 

Zip Codes, counties, hydrologic unit 

codes (HUCs), or other relevant 

information that would define the 

geographical location and extent of an 

area. 

(3) How will EPA notify CAFOs in a 

focus watershed if they have an 

obligation to provide information? If 

EPA is unable, after reasonable effort, to 

obtain the information in paragraph 

(k)(4) of this section from all CAFOs in 

a focus watershed, EPA will: 

(i) Conduct outreach in the focus 

watershed regarding the need for CAFOs 

to submit the information specified in 

paragraph (k)(4) of this section for a 

minimum of [30] days. 

(ii) Provide notice to the CAFOs of the 

need to submit information and the 

timing for such request by notice in the 

Federal Register and other appropriate 

means in the focus watershed. 

(4) Information to be submitted to the 

Administrator. The owner or operator of 

a CAFO located in a focus watershed 

identified by EPA as provided in 

paragraph (k)(2) of this section must 

provide the following information to the 

Administrator, if so notified in 

accordance with paragraph (k)(3) of this 

section: 

(i) The legal name of the owner of the 

CAFO or an authorized representative, 

and their mailing address, e-mail 

address (if available) and primary 

telephone number. (An authorized 

representative must be an individual 

who in involved with the management 

or representation of the CAFO. The 

authorized representative must be 

located within reasonable proximity to 

the CAFO, and must be authorized and 

sufficiently informed to respond to 

inquiries from EPA on behalf of the 

CAFO); 

(ii) The location of the CAFO’s 

production area identified by the 

latitude and longitude; or by the street 

address; 

(iii) If the owner or operator has 

NPDES permit coverage as of [the 

effective date of final rule], the date of 

issuance of coverage under the NPDES 

permit, and the permit number. If the 

owner or operator has submitted an 

NPDES permit application or a Notice of 

Intent as of [the effective date of final 

rule] but has not received coverage, the 

date the owner or operator submitted 

the NPDES permit application or Notice 

of Intent; 

(iv) For the previous 12-month period, 

identification of each animal type 

confined either in open confinement 

including partially covered areas, or 

housed totally under roof at the CAFO 

for 45 days or more, and the maximum 

number of each animal type confined at 

the CAFO for 45 days or more; and 

(v) Where the owner or operator land 

applies manure, litter and process 

wastewater, the total number of acres 

under the control of the owner or 

operator available for land application. 

(5) Submission process for CAFOs in 

focus watersheds. The owner or 

operator of a CAFO located in a final 

focus watershed, if so notified by EPA, 

must submit the information specified 

in paragraph (k)(4) of this section using 

the survey form provided by the 

Administrator. The owner or operator of 

a CAFO located in a focus watershed 

and so notified must submit the survey 

form to the Administrator, either by 

certified mail, or electronically, through 

the Agency’s electronic information 

management system by the deadline 

specified in paragraph (k)(5) of this 

section. If submitting the survey form by 

certified mail, the owner or operator of 

a CAFO located in a focus watershed 

must indicate on the survey form that an 

electronic submission waiver applies 

and provide justification as to why 


jlentini on DSK4TPTVN1PROD with PROPOSALS
65458 Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Proposed Rules 

electronic submission would cause an 

undue burden or expense. 

(6) Deadline for submissions by 

owners or operators of CAFOs in focus 

watersheds. The owner or operator of a 

CAFO located in a focus watershed and 

so notified must submit the information 

required by paragraph(k)(4) of this 

section in accordance with paragraph 

(k)(5) of this section [within 90 days] 

after EPA notifies CAFOs of such 

obligation in accordance with paragraph 

(k)(3). 

[FR Doc. 2011–27189 Filed 10–20–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R04–OAR–2010–0937–201118; FRL– 

9480–2] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Kentucky; Redesignation of 

the Kentucky Portion of the CincinnatiHamilton 1997 Annual Fine Particulate 

Matter Nonattainment Area to 

Attainment 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: On January 27, 2011, the 

Commonwealth of Kentucky, through 

the Kentucky Energy and Environment 

Cabinet, Division of Air Quality (DAQ), 

submitted a request to redesignate the 

Kentucky portion of the CincinnatiHamilton, Ohio-Kentucky-Indiana 

(hereafter referred to the ‘‘Tri-state 

Cincinnati-Hamilton Area’’) fine 

particulate matter (PM2.5) nonattainment 

area to attainment for the 1997 Annual 

PM2.5 National Ambient Air Quality 

Standards (NAAQS); and to approve a 

State Implementation Plan (SIP) 

revision containing a maintenance plan 

for the Kentucky portion of the Tri-state 

Cincinnati-Hamilton Area. The Tri-state 

Cincinnati-Hamilton Area is comprised 

of Boone, Campbell, and Kenton 

Counties in Kentucky (hereafter referred 

to as the ‘‘Northern Kentucky Area’’ or 

‘‘Area’’); Butler, Clermont, Hamilton, 

and Warren Counties in Ohio; and a 

portion of Dearborn County in Indiana. 

EPA is proposing to approve the 

redesignation request for Boone, 

Campbell, and Kenton Counties, along 

with the related SIP revision, including 

the Commonwealth’s plan for 

maintaining attainment of the PM2.5

standard in the Northern Kentucky 

Area. EPA is also proposing to approve 

Kentucky’s nitrogen oxides (NOX) and 

PM2.5 Motor Vehicle Emission Budgets 

(MVEBs) for 2015 and 2021 for the 

Northern Kentucky Area. On December 

9, 2010, and January 25, 2011, 

respectively, Ohio and Indiana 

submitted requests to redesignate their 

portion of the Tri-state CincinnatiHamilton Area to attainment for the 

1997 PM2.5 NAAQS. EPA is taking 

action on the requests from Ohio and 

Indiana in an action separate from these 

proposed actions. 

DATES: Comments must be received on 

or before November 21, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2010–0937, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: benjamin.lynorae@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: EPA–R04–OAR–2010–0937, 

Regulatory Development Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Ms. 

Lynorae Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2010– 

0937. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through http:// 

www.regulations.gov or e-mail, 

information that you consider to be CBI 

or otherwise protected. The http:// 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in http:// 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: Joel 

Huey of the Regulatory Development 

Section, in the Air Planning Branch, 

Air, Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street, 

SW., Atlanta, Georgia 30303–8960. Joel 

Huey may be reached by phone at (404) 

562–9104, or via electronic mail at 

huey.joel@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What are the actions EPA is proposing to 

take? 

II. What is the background for EPA’s 

proposed actions? 

III. What are the criteria for redesignation? 

IV. Why is EPA proposing these actions? 

V. What is EPA’s analysis of the request? 


jlentini on DSK4TPTVN1PROD with PROPOSALS