### MEMORA**NDUM**

TO: Public Record for the NPDES Electronic Reporting Rule

EPA Docket Number EPA

- HQ
- OECA
- 2009
-0274 (www.regulations.gov) FROM: Carey A. Johnston, P.E.

USEPA/OECA/OC ph: (202) 566 1014 johnston.carey@epa.gov DATE: 21 May 2014 SUBJECT: Notes from State Technical Workgroup Meeting ( 1 5 May 2 014) [DCN 0136]

**Overview** This was the ninth meeting for the EPA
-state technical workgroup, which is discuss ing key issues related to the proposed NPDES Electronic Reporting Rule (eRule) . These discussions are informing the forthcoming supplemental Federa l Register notice and they will continue beyond the publication of the supplemental notice to help EPA address state comments. EPA participants will include the OECA eRule Team as well as representatives from EPA’s Office of Water and Office of Environmental Information. Technical workgroup members are listed below in Table s 1 and 2. The agenda for this meeting is also provided below. EPA is summariz ing the notes from these discussions for the docket in order to provide transparency on EPA’s outreach during the rulemaking process . The OECA eRule team will also be available for any other stakehold er group that would like to discuss the eRule. **Meeting Notes** EPA (Mr. Carey Johnston) started the meeting by reminding state participants that in addition to raising questions during the technical workgroup meetings, states can email their questions on the proposed rule (including the data elements) to EPA. Questions on all aspects of the proposed rule can be sent to Mr. Johnston. Mr. Johnston then asked teleconference participants to focus on the Concentrated Animal Feeding Operation (CAFO) data element s in Appendix A. The source of these CAFO

-specific data elements includes NPDES permit applications and Notices of Intent (NOI) (see 30 July 2013; 78 FR 46091), state and EPA inspections of animal feeding operations and CAFOs (Page 46101), and the CAFO Ann ual Report (Page 46106). Mr. Johnston started the technical discussion by reading the name of each data element along with the corresponding data description and regulatory or policy citation. After reading about five to ten elements at a time, Mr. Johnston asked for input from the technical workgroup. Below are some questions and comments from the technical workgroup. Texas suggested that the **Facility Annual Average Total Number** and **Facility Annual**

**Average Total Number (Unhoused Confinement)** data elements be changed from annual average to maximum number allowed by the permit. This would provide regulators a measure of the maximum number of animals that can be maintained under the permit, which can be checked during an inspection. These data elements are from the permit application or NOI.

 Texas suggested that the **Permit/NOI 12 -**  **Month Amount of CAFO Waste** data element be changed from a total amount in the previous 12 months to the maximum amount allowed under the permit and that the data element description should be modified to reflect this fact. Texas also suggested that the data element **Facility Manure Annual Average Total Capacity**  also be changed, in the title and the description, to remove the words annual average.

 Texas suggested that the phrase ‘in the previous 12 months’ be eliminated from the **Total Number of Acres for Land Application Covered by the Nutrient Management Plan**  data element. Mr. Johnston then asked teleconference participants to focus on the CAFO

-sp ecific inspection data elements (see 30 July 2013; 78 FR 46101). Mr. Johnston started the technical discussion by reading the name of each data elements along with the corresponding data description and regulatory or policy citation. After reading about five to ten elements at a time, Mr. Johnston asked for input from the technical workgroup. Below are some questions and comments from the technical workgroup.

 Texas made clear that the date of inspection needs to be included. Mr. Johnston replied that the date of inspection is applicable to all data elements and is listed on Page 46100 ( **Compliance Monitoring Activity Actual End Date** ).

 Texas suggested that the containment and storage capacity data element should be based on the design capacity (i.e., maximu m allowed under the permit). Mr. Kent Woodmansey ( South Dakota ) disagreed and noted that it may be difficult for an inspector to calculate the total capacity. Mr. Woodmansey suggested that the data element be changed such that the inspector only needs to i dentify whether or not the CAFO is operating within the design capacity for each type of containment and storage used by the facility for CAFO material.

 Texas also suggested that the **Animal Type**, **Total Number of Animals**, and **Total Number of Animals in**  **Open Confinement** all be clearly linked to what was there on the date of the inspection.

 Ms. Tamara Dahl (Minnesota) asked if the **CAFO Designation Date** can be carried forward from the state files or permit application forms. Ms. Dahl also asked for more cl arification on the **Designation Reason** data element. [Answer : The Designation Reason is a text fieldfor the reason used by the State Director or the Regional Administrator that designates an

animal feeding operation as a small CAFO. Large and medium CAFO d efinitions are in 40 CFR 122.23(b). This text field can include the following factors: (1) the size of the AFO and the amount of wastes reaching waters of the United States; (2) the location of the AFO relative to waters of the United States; (3) the means of conveyance of animal wastes and process waste waters into waters of the United States; (4) the slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes manure and process waste waters into waters of the United States; and (5) other relevant factors, ]

 South Dakota suggested that the following data elements be eliminated (starting on Page 46101) :
o Did Facility Make a No Discharge Certification? o Is an NMP Being Implemented? o Is an NMP Being Implemented Annually? o Land Application BMP Type o Mortality Disposal Method o Monitoring Well Data Availability o Storage Type o Storage Total Capacity

 South Dakota also noted that they work with small AFOs so that they don’t require designation as a CAFO. See the five factors above. Large and medium CAFO definitions are in 40 CFR 122.23(b). Mr. Johnston then asked teleconference participants to focus on the CAFO Annual Report data elements (see 30 July 2013; 78 FR 46106). Mr. Johnston started the technical discussion by reading the name of each data elements along with the corresponding data description and regulatory or policy citation. After reading a bout five to ten elements at a time, Mr. Johnston asked for input from the technical workgroup. Below are some questions and commen ts from the technical workgroup
.

 On the inspection data, one state indicated that the data element “ **Did Facility Make a No D**  **ischarge Certification?**” was outdated and perhaps should be deleted.

 South Dakota suggested that the metric for animal counts be changed to maximum (instead of total number) to facility comparison against the permitted maximum counts that are captured in the permitting process. Mr. Kent Woodmansey (South Dakota) noted that EPA and states will need to have good instructions on the electronic reporting for m s to improve data quality as they have seem problems with animal count numbers in previous reporting.

 New Jersey also asked whether days of confinement should be tracked as a key factor in whether the facility constitutes a CAFO. Mr. Woodmansey (South Dakota) suggested that a units data element may be necessary as

not all CAFO manure, litter, and process wastewater is measured in gallons. He also suggested that EPA remove t he word ‘waste’ from the description of CAFO manure, litter, and process wastewater
.

 A number of states had questions on the discharge data. South Dakota noted that knowing where the discharge came from was important. New Jersey suggested that EPA also cl arify if the data element applies to discharges that don’t enter waters of the United States. [ Note : Mr. Kent Woodmansey made the following suggestion in a May 15th email to Mr. Johnston: “Thinking some more about the discharge questions in the annual repo rt, maybe rather than where the discharge was from, it would be worthwhile to know if the discharge was allowed as a result of a 25

-year, 24
- hour storm event. This is allowed for open lot systems as long as they are properly, designed, constructed, operated, and maintained.” ]

 Mr. Woodmansey (South Dakota) suggested that EPA provide examples of a certified nutrient management planner as that term is not clear to many CAFOs in his state. He also suggested the EPA work with some agricultural producers to review and refine the data in Appendix A as well as the electronic reporting forms.

 Appendix A asks for operators to identify whether they are using the Linear Approach [40 CFR 122.42(e)(5)(i)] or the Narrative Rate Approach [40 CFR 122.42(e)(5)(ii)] to manage their CAFO manure, litter, and process wastewater. Mr. Woodmansey (South Dakota) noted that many operators won’t know what approach they are using to control their CAFO manure, litter, and process wastewater. Commenters also mentioned that the m ethod might be standard for the entire state and could be built into the form, eliminating the need for certain questions to be listed for a particular state. One commenter also as ked whether a “deviation amount” should be identified because the measureme nts and estimates may not be exact. On the inspection data, one state indicated that the data element Did Facility Make a No Discharge Certification? was outdated and perhaps should be deleted.

 Several states asked if the **Field Identification Number** will be system generated or if states and CAFOs will have flexibility in creating unique numbers. Mr. Johnston noted that EPA will work with states to create flexibility when this data element is created in ICIS

- NPDES. The intention behind this data eleme nt is to create a number that will uniquely identify an area that has applications of CAFO manure, litter, and process wastewater
.

 Mr. Woodmansey (South Dakota) asked how ICIS
- NPDES handles multiple facilities under one NPDES permit. [Answer : ICIS
- NPDES does allow multiple facilities to be covered under a master general permit. In such cases, each general permit covered facility has its own unique permit number (e.g., MSG180005 ) that is related to the master general permit (MSG18). However, ICIS

- NDPES doe s not allow one unique NDPES permit number to be applied to multiple facilities.] Texas commented that there are privacy issues related to the animal feeding sector as some

private residences are co

- located with the animal feeding operations.

 Mr. Sean Rolland (ACWA) asked about the information that states and EPA collect on unpermitted CAFOs during inspections. He questioned whether these data would be required to be submitted to EPA and whether they would be made publicly available. [Answer : As noted i n the proposed rule (Page 46022), “The NPDES information described in the proposed rule would generally not be required for facilities without NPDES permits, with the following exceptions: Unpermitted facilities that have action, an administrative penalty order, or an informal enforcement action (if such informal action addressed significant noncompliance); Unpermitted facilities that have been inspected; and Industrial users located in cities without approved local pretreatment programs. For the first two types of exceptions identified above, EPA, authorized states, tribes, and territories would be expected to electronically provide the following information: basic facility information; inspection
- related information; and, if applicable, violations, and information regarding enforcement actions. For the first two exceptions, there would not be any expectation for data to be submitted to EPA regarding narrative permit conditions, permitted features, permit limit sets, permit limits, DMRs, or program reports.” ]
**Next Steps** The next technical workgroup meeting is May 22 nd

.**State Technical Workgroup Meeting**  **– NPDES Electronic Reporting Rule**  **1 5**  **May 2014** 

1pm Introduction/Roll Call 1: 10 Discussion of CAFO Data 2: 3 0 End of Call
**Quick Reminder**

 The technical workgroup is not a formal decision

- making body. The workgroup is expected to develop, research, and evaluate options for consideration by EPA and state senior management.

 There are no formal quorum rules for the workgroup. Scheduled teleconferen ces will proceed with whichever workgroup members call in to participate.

 There will be no formal voting or consensus of the workgroup. Instead, the workgroup is expected to try to develop recommendations reflecting their various perspectives, not achieve consensus.

 Summaries of the workgroup’s discussions will be prepared for and reviewed by the workgroup, for presentation to EPA senior management and other states and the rulemaking record. The discussions summaries will outline the major elements of the discussions, areas of agreement and any dissenting views.**Table 1:** State Technical Workgroup Members

**Main Contact State or** 

**Organization Main Contact**  **Email State/Org.**  **Present? (Yes/No)**  Sean Rolland ACWA srolland@acwa

- us.org Yes Karen Lechner AK karen.lechner@alaska.gov Yes Christy Monk AL cvm@adem.state.al.us Yes Glenda Dean gld@adem.state.al.us Teresa Marks
AR marks@adeq.state.ar.us
Yes Pat Goff goff@adeq.state.ar.us Mo S hafii shafii@adeq.state.ar.us Karen Bassett bassett@adeq.state.ar.us David Ramsey ramsey@adeq.state.ar.us Ellen Carpenter carpenter@adeq.state.ar.us Wendy LeStarge AZ lestarge.wendy@azdeq.gov Yes Robin B elley belley.robin@azdeq.gov David Lelsz lelsz.david@azdeq.gov; Andy Putnam CO andrew.putnam@state.co.us goff@adeq.state.ar.us Yes Elisa Willard elisa.willard@state.co.us Bob Zimmerman DE robert.zimmerman@state.de.us stephanie.bower@state.de.us No Beth Graves ECOS bgraves@ecos.org Yes Chris Klena FL chris.m.klena@dep.state.fl.us Yes J essica K leinfelter jessica.kleinfelter@dep.state.fl.us E dward S mith edward.c.smith@dep.state.fl.us F rances Carpenter frances.carpenter@dnr.state.ga.us Tom Easterly IN teasterl@idem.in.gov ckoontz@idem.in.gov No Jeremy Chenevert jcheneve@idem.in.gov Ed Dillingham KS edillingham@kdheks.gov No Shelly Shores

- Miller sshoresm@kdheks.gov Shawn H okanson KY shawn.hokanson@ky.gov No Tamara D ahl MN tamara.dahl@state.mn.us Yes G reg J ackson MS greg_jackson@deq.state.ms.us No John Murphy NEIWPCC jmurphy@neiwpcc.org No Jason Lonardo NJ jason.lonardo@dep.state.nj.us Yes Julio Collazo julio.collazo@dep.state.nj.us Robert Wither NY rewither@gw.dec.state.ny.us Yes Joseph DiMura jxdimura@gw.dec.state.ny.us**Main Contact State or**  **Organization Main Contact**  **Email State/Org.**  **Present? (Yes/No)**  Shellie Chard

- McClary OK shellie.chard

- mcclary@deq.ok.gov Yes Roy Walker roy.walker@deq.ok.gov D avid P ruitt david.pruitt@deq.ok.gov Jim B illings OR billings.jim@deq.state.or.us Yes Sean Furjanic PA sefurjanic@pa.gov No Kent Woodmansey SD kent.woodmansey@state.sd.us Yes Tim F lor tim.flor@state.sd.us A lbert S pangler albert.spangler@state.sd.us Kim Wilson TX kim.wilson@tceq.texas.gov Yes Lynley D oyen lynley.doyen@tceq.texas.gov K imberly S hepard kimberly.shepard@tceq.texas.gov Jeff Studenka UT jstudenka@utah.gov No Jerome Brooks VA jerome.brooks@deq.virginia.gov Yes P hani Eturu phani.eturu@deq.virginia.gov Stephen Bernath WA sber461@ecy.wa.gov Yes Nancy Kmet nkme461@ecy.wa.gov **Table 2**  **:** EPA Technical Workgroup Members

**Name EPA Office**  **Email Present?**  **(Yes/No)** Lisa Lund OECA/OC/IO lund.lisa@epa.gov No John Dombrowski OECA/OC/ETDD dombrowski.john@epa.gov Yes Andy Hudock OECA/OC/ETDD hudock.andrew@epa.gov Yes Rochele Kadish OECA/OC/ETDD kadish.rochele@epa.gov Yes Carey Johnston OECA/OC/ETDD johnston.carey@epa.gov Yes Jackie Clark OW/OWM/WPD clark.jackie@epa.gov Yes Roy Chaudet OEI/OIC/IESD chaudet.roy@epa.gov No Chuck Freeman OEI/OIC/IESD freeman.charles@epa.gov No Aditi Prabhu OGC/WLO prabhu.aditi@epa.gov Yes Simma Kupchan OGC/WLO k upchan.simma@ e pa.gov Yes David Apanian Region 4 a panian.david@ e pa.gov Yes Becky Mitschele OW/OWM/WPD m itschele.becky@ e pa.gov Yes Glynis Hill OP/ORPM/PRAD hill.glynis@epa.gov Yes