7

/ 1 3 /2012

1 S upplemental Responses to Comments for the P roposed NPDES CAFO Reporting Rule

Background and p urpose of this document

The EPA received 1, 403 comments on the proposed National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule

. 1 States, in particular, commented tha t state permitting authorities, or other state agencies, ha ve information about CAFOs (“CAFO information”) and that much of the information is publicly available.
Some states commented that they have additional CAFO information beyond the five items proposed and also have information about operations that are animal feeding operations (AFOs)
but are not defined as CAFOs. Industry commenters also indicated that information has been

prov ided to the state permitting authorities. A summary of the comments received, including those from the states, are describ ed in the Federal Register notice for today’s final action.

The EPA agrees with those commenters who stressed that the EPA has the authority to collect this information directly from CAFOs

. 2 The EPA has decided, however , to make a concerted effort to obtain CAFO information from existing sources of information instead of requiring all CAFOs to submit specific items of information to the EPA at this time . The F ederal R egister
notice discusses the primary reason why the EPA decided to use existing sources of information
to obtain CAFO information rather than promulgating a rule to require the submission of
information to the EPA

. T his document addresses additional points made in the comments that
are relevant to the EPA’s decision to obtain CAFO information from existing sources, including
the state NPDES programs , other regulations, and other programs at the federal, state, and loc al
level.

Many comments on the proposed rule are moot because the EPA is not promulgating a rule, and therefore do not require a formal response

. Many of the comments on the proposed rule ar e moot because the EPA is not promulgating a rule. Comments that focus on issues that include the burden on CAFOs to comply with the proposed rule , data submission requirements

, focus watersheds , enforcement of the proposed rule, and the adequacy of notice to CAFOs , among others, are moot because the EPA is not

pro mulgating a rule, at this time

. If the EPA determines that it cannot obtain adequate CAFO
information without a rule and subsequently issues a new proposal to collect CAFO information,
The EPA w ill review comments on the proposal at that time, to the extent that they are still
relevant.

The EPA acknowledges the environmental impact of CAFOs, and has programs in place to

carry out the objectives of the Clean Water Act (CWA)

. Many commenters stressed the environmental impact of CAFOs in support of their arguments of why the EPA should require data to be submitted. The EPA acknowledges the environmental impact of CAFOs, and the final action addresses how the EPA intends to obtain CAFO

1 76 FR 65431. See Docket EPA

- HQ

- OW

- 2011

- 0188. Available at www.regulations.gov

. 2 EPA has the authority to collect information about all CAFOs under sections 301, 304, 305, 308, 309, 402, 501,
and 504 of the CWA. 76 FR 65433. This information

- gathering authority is broader than EPA’s authority to require permit coverage. 76 FR 65436 . Section 308 authorizes information collection from point sources, which includes CAFOs that discharge or may discharge. Id

.7

/ 1 3 /2012

2 informatio n in the absence of a new regulatory requirement

. Numerous studies conducted by government and independent researchers identify agriculture in general, and AFOs specific ally

, as contributors to surface water pollution. These studies are referenced in the proposal 3 and in
the EPA’ s public record for the proposed r ule

. 4

Envi ronmental groups commented that the EPA should collect CAFO information in order to carry out the assessment and restoration of impaired waters (CWA § 303), monitoring of water quality (CWA § 305), implement ation of the NPDES permitting program, including enforcement and compliance (CWA §§ 402, 308, and 309), prevention of pollution that presents human health and welfare risks (CWA § 504), and investigation of pollution sources (CWA § 104). The

commenters ar e correct in asserting that these objectives are required by the CWA, however, the proposed rule is not the only way to achieve these objectives. The EPA has existing programs designed to carry out the se objecti ves , and obtaining information fr om state programs rather than promulgating a reporting requirement will not hinder these programs. Any CAFO information
obtained by the EPA through existing sources will further enhance the CWA programs that a re already in place

.

The EPA considers water pollution from animal agriculture to be an A gency priority, and even though the Agency is not promulgating a rule at this time, the EPA continue s to carry out the objectives of the CWA by : collaborating with states to ensure that state NPDES programs are
sufficient ; enforcing and en suring compliance with the law and; develop ing new and innovative programs to enhance water quality protection. Any CAFO information obtained by existing
sources will further enhance the EPA ’s ability to implement CWA programs aimed at protecting
the N ation’s waters.

T he primary authority for implementing the NPDES program rests with the authorized states

. Authorized states use monitoring data to review and revise water quality standards, identify impaired and threatened waters , develop pollutant

- specific Total Maximum Daily Loads (TMDLs) , determine the effectiveness of pollution control programs, adjust dr inking water treatment requirements, measure progress toward clean

- water goals, and respond to citizen complaints or events such as spills and fish kills. 5

The EPA collaborates with states to ensure that sta te NPDES programs are designed and implemented s o that they may achieve the objectives of the CWA

. The EPA receives state reports on water quality every two years, as well as prioritized list s of impaired waters that warrant the development of pollution controls. The EPA actively engages state agencie s to identify changes needed in the NPDES program to enhance water quality

. For example, the
EPA’s 2011 CWA Action Plan identifie s four key changes needed to revamp the NPDES

program

. 6 The EPA committed to “initiate systematic efforts to improve permits by [incorporating] lessons learned from permit quality reviews and compliance monitoring and

3 76 FR 65431. Available at http://www.ep a.gov/npdes/regulations/cafo_fr_proposed_reporting_rule.pdf

. 4 Docket EPA

- HQ

- OW

- 2011

- 0188. Available at www.regulations.gov

. 5 US EPA, National Water Quality Inventory: Report to Congress 2004 Reporting Cycle, Ja nuary 2009. Available

at http://www.epa.gov/owow/305b/2004report/report2004pt1.pdf

. 6 US EPA, CWA Action Plan Implementation Priorities: Changes to Improve Water Quality, Increase Com pliance and Expand Transparency, May 2011. Available at http://www.epa.gov/oecaerth/resources/publications/civil/programs/cwa/actionplan

- impl priorities.pdf

.7

/ 1 3 /2012

3 enforcement actions...to improve the quality, including the enforceability, of newly issued permits, especially general permits .” 7 Continued implementation of the permitting program likely will result in improvements in the tracking, and analysis, of CAFO information.

The EPA’s enforcement and compliance assurance efforts continue to carry out the o bjectives of
the CWA. CAFOs are an e nforcement p riority for the EPA due in part to the potential risks from inadequate manure management at CAFO s , a pattern of CWA noncompliance in the industry,
and the need for the EPA leadership in implementing the federal CAFO regulations

. 8 From FY
2008 t hrough FY 2011, the EPA conducted over 1,000 inspections and completed 238 federal enforcement actions against CAFOs for CWA violations

. 9 D uring the FY 2008, federal
enforcement actions resulted in a reduction of over 64 million pounds of pollutants that would have otherwise been discharged

. 10 For FY 2013, the EPA enforcement efforts will focus primarily on existing large and medium CAFOs identified as discharging without a permit to
waters of the U.S. In addition to unpermitted large and medium sized operations, some resources will be used to assure that CAFOs that already have permits are in compliance with those permits

. 11 The EPA’s concerted effort to obtain CAFO information will enhance enforcement and complia nce assurance efforts by providing access to additional CAFO information.

The EPA continue s to develop new and innovative programs that enhance water quality protection. For example, the EPA recently developed the Nitrogen and Phosphorus Pollution

Data Access Tool (NPDAT) to aid states in prioritizing watersheds and setting load

- reduction goals for th o se watersheds based on available water quality information. In addition to assisting states with enhanced water quality protection, the EPA maintains the National Risk Management Research Laboratory (NRMRL) for investigating technological and management approaches for preventing and reducing impacts from pollutant sources. In March 2011, the NRMRL assisted in the development of a report that examined pollu tants from da i ry operations

. 12 The EPA’s
concerted effort to obtain CAFO information will inform the Agency so that other new and innovative programs may be developed.

The above efforts are just examples of how the EPA is carry ing out the obje ctives of the CWA.
In the absence of a new rule at this time

, the EPA continues to implement these programs an d pursue the protection of the N ation’s waters. Any CAFO information obtained by the EPA through existing sources will further enhance these programs and decision making

.

The EPA acknowledges the Agency’s lack of CAFO information

.

7 Id. at 15.

8 US EPA, Compliance and Enforcement National Priority: Concentrated Animal Feeding Operations (CAFOs), December 11, 2009. Available at http://www.epa.gov/oecaerth/resources/publications/data/planning/priorities/fy2008prioritycwacafo.pdf

9 Id.

10 Id.

11 US EPA, FY 2013 Office of Enforcement and Compliance Assurance (OECA) Draft National Program Manager (NPM) Guidance, February 10, 2012. Available at http://www.wsema.com/wp

content/uploads/2 012/02/FY13_OECA_DraftNPMGdnce.pdf

. 12 US EPA, Transport and Fate of Nutrients and Indicator Microorganisms at a Dairy Lagoon Water Application Site: An Assessment of Nutrient Management Plans, March 2011. EPA 600/R

- 10/116. Available at http://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=P100DOTV.txt

.7

/ 1 3 /2012

4 The EPA acknowledges that the Agency lacks a comprehensive inventory of CAFOs. In September 2008, the United States Government Accountabil ity Office (GAO) issued a report to congressional requesters, recommending that the EPA “complete the Agency’s effort to develop a national inventory of permitted CAFOs and incorporate appropriate internal controls to ensure the quality of the data. ” 13 The EPA responded to the GAO report that the Agency “was working with states to develop and implement a new national NPDES data system to collect and record facility

- specific information on permitted CAFOs” and that the EPA was developing a proposed rule p ackage that would “set national requirements for [electronic submission of] certain NPDES program information being provided by authorized states into the EPA’s data system”. 14 The “E

Reporting Rule” 15 would pave the way for the EPA to develop a national in ventory of permitted
CAFOs

. 16 The progress of this rulemaking can be followed on the EPA’s Rulemaking Gateway
website

. 17

The EPA will obtain CAFO information without a new rule

.
The EPA will seek to obtain information items listed in the proposed rule, as well as other information that is available from existing resources. Currently, the EPA is assessing the quality and comprehensiveness of CAFO information in authorized states’ data management systems

, which include electronic databases and paper files

. This concerted effort to obtain CAFO information minimizes private sector reporting and potentially duplicative reporting by owners and operators of CAFOs

.

Environmental groups indicated in their comments that the EPA should collect all fourteen data items listed in the settlement agreement and additional items beyond those listed in the settlement agreement. The EPA believes t he most important information to obtain is the contact
information for the CAFO and the l ocation of the operation. These two pieces of information
allow the EPA to identify the operation and follow

- up, if needed , to collect additional
information

. The EPA will obtain all information the Agency can reasonably acquire from existing sources to protect the N ation’s waters , which may include information beyond the five items to be collected under the proposed NPDES CAFO Reporting Rule . For example, some states track information for AFOs and are willing to sh are that information with the EPA. Man y
states also track inspection or monitoring information about CAFOs. The EPA anticipates that
states who submit CAFO information to the EPA are capable of batch reporting that would not impose an undue burden on the states.

The EPA acknowledges that ob taining CAFO information from existing sources may not produce a comprehen sive inventory of CAFO information. However, the Agency believes
obtain ing CAFO information from existing sources is an important next step to developing a comprehensive inventory and will inform future Agency efforts. The EPA values the

13 76 FR 65434.

14 US EPA, NPDES Electronic Reporting Rule, RIN 2020

- AA47, Pre

- proposal. See http://yosemite.epa.gov/opei/rulegate.nsf/byRIN/2020

- AA47

. 15 Id

. 16 US Government Accountability Office, Concentrated Animal Feeding Operations

— EPA Needs More Information and a Clearly De fined Strategy to Protect Air and Water Quality
, GAO

– 08

– 944 5 (2008), Appendix V: Comments from the US EPA, September 24, 2008. Available at http://www.gao.gov/new.items/d08944.pdf

. 17 US EPA, NPDES Ele ctronic Reporting Rule, RIN 2020

- AA47, Pre

- proposal. See http://yosemite.epa.gov/opei/rulegate.nsf/byRIN/2020

- AA47

.7

/ 1 3 /2012

5 relationships that have been established and maintained between producers and state agencies and the U.S. Department of Agriculture (USDA)

, because the direct communication that takes place between them often yields information exchange that is beyond the information on a permit application

. The EPA wishes to utilize these established networks by working with federal agencies, states , and local partners to obtain CAFO information. In addition to working with
the se groups to exchange information mainly on permitted CAFOs, the EPA may need to use other existing sources of data, such as data available from non

- NPDES state programs, Dun and Bradstreet, state registrations, or satellite imagery and aerial photographs, to obtain information about unpermitted CAFOs. For example, the EPA has used satellite imagery to identify operations that confine animals. 18 The EPA recognizes there are limitations to the use of satellite imagery and aerial photographs.

Environmental groups indicated in their comments that it is important for the EPA to possess
information about CAFOs that either have not sought or been issued NPDES permits or non

NPDES permits ( i.e. “unpermitted CAFOs”). Because CAFOs with NPDES coverage have already submitted data to state and the EPA permitting authorities, the EPA agrees with environmental groups that the greatest benefit from the proposed rule might be derived from collecting dat a from unpermitted CAFOs. As state commenters pointed out, however, CAFOs without NPDES permit coverage may be less likely to comply with the proposed rule either because they are un aware of the requirement or because they do not understand that the requi rement applies t hem

. Commenters suggested the lack of Internet access in many rural areas where CAFOs are located could result in a failure to respond. While the EPA agrees that it is important for the A gency to have information on unpermitted CAFOs, the EPA has decided that the best way to use limited A gency resources is to obtain information from states first , some of
which includes CAFOs without NPDES permit coverage

. 19 S ince the Agency is not promulgating a rule, it can employ resources that would have been spent on implementation of
the rule to reviewing existing sources of information and focus resources on identifying CAFOs that do not have NPDES permit coverage

. The EPA will continue to work w ith USDA, U.S. Geological S urve y , and other agencies to address sources of nutrient pollution. The EPA also plans to work with USDA to stay up

- to

- date on industry trends, which c an be used in strategic planning.

Some commenters questioned why the EPA proposed to collect information only about CAFOs instead of all operations that confine ani mals. In the absence of a new rule, the EPA’s concerted
effort will aim to obtain CAFO information. In 2003, EPA determined that CAFOs generate 60 percent of the manure generated by operations that confine ani mals, and account for nearly 70 percent of those operations that generate nutrients in excess of cropland needs. 20 L imited
A gency resources warrant a targeted approach that wi ll result in the greatest impact on water qualit y

.

18 US EPA, Geospatial Conference Presentation: GIS and Concentrated Animal Feeding Operations , July 2010. See
Docket EPA

- HQ

- OW

- 2011

- 0188. Available at www.regulations.gov

. 19 US EPA, Draft NPDES CAFO Reporting Rule Information Search, March 1, 2012. See Docket EPA

- HQ

- OW

2011

- 0188. Available at www.regulations.gov

. 20 68 FR 7180. Available at http://www.epa.gov/npdes/regulations/cafo_fedrgstr.pdf

.7

/ 1 3 /2012

6 Some commenters indicated concern for environmental justice (EJ) communities that are affected by the environmental impact of CAFOs. While the EPA is not promulgating a rule, the Agency is conducting a concerted effort to obtain CAFO information from existing sources. This information will assist EJ communities by broadening the scope of enforcement and permitting capabilitie s at the EPA. At this time, a new rule is not necessary to enhance the Agency's ability to positively impact EJ communities. The Agency maintains discretion and ability to initiate rulemaking in the future if the Agency deems a rulemaking is necessary to meet the Agency's EJ goals and responsibil ities.

Regardless of the EPA’s approach to collecting CAFO information, data accuracy and reliability are an issue. A national survey requirement (option 1 of the proposed rule) does not mean that reported data will be complete or accurate. The EPA un derstands that a rule requiring CAFO information would not necessarily ensure accurate or complete information because such a rule would require CAFOs to respond to a survey. However, a CAFO without NPDES permit coverage may not self

- report because the ow ner or operator may not be aware of the survey requirement. Commenters suggested the lack of Internet access in many rural areas where many CAFOs are located could result in a failure to respond.

Any survey requirement captures a single time period, an d opera tional practices at a CAFO can change on a daily basis. States, on the other hand, have databases that are regularly updated to reflect changes in permit status, animal numbers, and other relevant CAFO information. Because CAFOs are dynamic system s, the EPA may be able to obtain up

- to

- date information by working with states and their systems to track CAFO information.

Some states also commented that resources likely would be diverted from program implementation in order to carry out the propose d rule, and expressed interest in exchanging information without a regulatory requirement. If the EPA can obtain the desired information without a rule, then the Agency can reduce the regulatory burden on states and CAFOs while
obtain ing the information i n a timely manner.

Due in part to the aforementioned reasons, the EPA has decided to first seek to obtain CAFO information from states and other existing sources of information. It is possible that this approach may yield more useful results than a self

- reporting requirement. For instance, the EPA has found that some states track data elements that go beyond the five items to be collected under the proposed rule, as well as information on animal operations that aren’t defined as CAFOs

. 21 After concluding the concerted effort to obtain CAFO information from existing sources, the EPA will reconsider whether it is necessary to promulgate a reporting requirement.

The EPA continues to support environmental stewardship and partnership efforts.

The EPA recognizes that stewardship and recognition programs, education or technical assistance programs

, and incentive based programs, frequently carried out in coordination with other partners such as states, industry, or USDA, often result in improvements in industry practices

. For example, the EPA maintains the Ag Center, ( http://www.epa.gov/agriculture ),

21 US EPA, Draft NPDES CAFO Reporting Rule Information Search, March 1, 2012. See Docket EPA

- HQ

- OW

2011

- 0188. Available at www.regulations.gov

.7

/ 1 3 /2012

7 which provides compliance assistance and environmental stewardship information related to
anim al feeding operations

.

The EPA partners with USDA and state land grant universities to promote environmental stewardship and improve manure and nutrient management practices . For example, the EPA
partner s with USDA’s extension program to offer a wide r ange of compliance and environmental stewardship information through the Livestock and Poultry Environmental Learning Center
available at http://www.extension.org/animal_manure_management

. Al so, the U.S. Poultry & Egg Association, a trade association representing a segment of the poultry industry across the nation, is developing educational modules that will serve as a tool for producers to help them understand, implement and maintain nutrient best management practices. The U.S. Poultry and Egg Association plans to work with the EPA in the development of the modules to ensure that the guidance and education provided to their producers effectively aides in compliance with
CWA regulations applicable to this industry. The EPA will continue to support and develop mechanisms for promoting environmental stewardship and compliance.

The EPA continues to support transparency

.
The EPA works to ensure public trust and establish a system of transparency, public participation , and collaboration

. The Agency will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use. 22

A ny information obtained by the EPA will be made available in accordance with 40 CFR Part 2.

The EPA has satisfied the settlement agreement

.
The F ederal R egister notice for final action on the proposed NPDES CAFO Reporting Rule satisfies the terms of the settlement agreement between the EPA and the Natural Resources Defense Council, Waterkeeper Alliance, and Sierra Club. The settlement agreement did not
commit the EPA to the substance of any final action

. 23 The EPA committed to take final action on the proposed rule by July 13, 2012. The settlement agreement expressly stated that nothing in the agreement shall be construed to limit or modify the discretion accorded the EPA by the CWA or by general principles of administrative law

. 24

In Summation

The EPA believes that working through existing state partnerships will yield timely results in obtaining CAFO information. The EPA has begun a concerted effort to obtain CAFO
information from states and other existing sources of information. The EPA also established

, in
June 2012

, a memorandum of understanding (MOU) with ACWA that will assist the Agency in
obtain ing information about CAFOs. This collaborative effort between the EPA and ACWA will focus on identifying CAFOs and assist in the EPA obtaining pertinent information about CAFOs on a state by state basis. The EPA may initiate a future rulemaking to collect CAFO information if existing sources do not provide adequate information.

22 The President of the United States of America, Memorandum for the Heads of Executive Departments and Agencies

- Transparency and Open Government, January 21, 2009. Available at http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment

. 23 76 FR 65435.

24 Id.