1 

### Johnston, Carey

From: Bornstein, Josh - DM <Josh.Bornstein@dm.usda.gov>

Sent: Thursday, July 10, 2014 7:25 AM

To: Johnston, Carey

Cc: John.D.Martin@HQ.DHS.GOV; Meckes, Doug; Dombrowski, John; Hudock, Andrew; Kadish, Rochele Subject: RE: (U//FOUO) HSPD-9 and NPDES Proposed Rule



### Carey,

I am good with this approach – I think proposing th is concept of masking non-offenders is a good compromise. The comment period will allow industry to respond with their thoughts.

Please let me know once the comment period opens.

Thank you,
Josh

Josh Bornstein Senior Policy Advisor & Staff Lead (Acting) USDA/OHSEC/NSPS

From: Johnston, Carey [mailto:Johnston.Carey@epa.gov] Sent: Wednesday, July 09, 2014 3:43 PM
To: Bornstein, Josh - DM Cc: John.D.Martin@HQ.DHS.GOV; Meckes, Doug; Dombrowski , John; Hudock, Andrew; Kadish, Rochele Subject: RE: (U//FOUO) HSPD-9 and NPDES Proposed Rule

Hello Josh, John, and Doug –

I hope you are doing well. I apologize for the dela y in getting back to you. Below is proposed languag e that we would like to include in our forthcoming Federal Register noti ce, which will open a new public comment period. Al so attached is the reference document on single event violation da ta entry. Please let me know if you have any though ts or questions on our proposed approach. Thank you.

Sincerely,

Carey A. Johnston, P.E. U.S. EPA, Office of Compliance ph: 202-566-1014 johnston.carey@epa.gov



### Possible Federal Register Language

Stakeholders also raised concerns about EPA posting information on unpermitted CAFOs and AFOs on EPA’s public website. The Clean Water Act specifica lly identifies concentrated animal feeding operatio ns as a type of “point source.” See 33 USC 1362(14). The NP DES permit program regulates discharges of pollutan ts2 

### from point sources. It is important for authorized NPDES programs to report inspection information on all facilities (permitted or unpermitted) to EPA, as th ey do now, so that EPA can know that the state has inspected the facility and avoid a possible duplica tive EPA inspection. Providing information related to inspections of unpermitted facilities (e.g., facili ty name and location) helps the public better under stand the robustness of the authorized state NPDES inspection program and the compliance status of nearby CAFOs and AFOs. For example, EPA’s ECHO website [1] 

### currently posts data on all permitted and unpermit ted facilities including: basic facility data (e.g., facility name , street address, latitude and longitude); facility contact (e.g., contact name, phone number); and inspection data (e .g., date(s) of inspection, inspection type, lead a gency, current and past compliance status, and any enforce ment actions).

In order to balance the privacy interests of an unp ermitted CAFO and AFO that an authorized state NPDES program or EPA has not assessed and found to have violated the Clean Water Act versus the public interest in disclosure, EPA is considering masking the facility name and address as well as the facili ty’s contact name and phone number on EPA’s website (e.g., ECHO, Envirofacts, Facility Registry System) for these facilities. A violation observed during an inspecti on would likely be entered into as a single event v iolation (SEV) and SEV data are entered by states or EPA Reg ions into EPA’s data system (ICIS-NPDES). The follo wing EPA document, “Single Event Violation Data Entry Gu ide for ICIS-NPDES,” 18 October 2008, provides guid ance on the SEV data for state and EPA Regions. See DCN 0147. The following is an example of how EPA could mask facility name and location (address and latitude an d longitude) as well as facility contact informatio n (contact name and phone number) for its website (e.g., ECHO, Envirofacts, Facility Registry System). Each unper mitted
CAFO and AFO that does not have a Clean Water Act v iolation as determined by the authorized state NPDE S program or EPA would have unique number as shown be low.

**Facility #1 - Unmasked Information Facility #2 - Ma sked Information**  Show-Me State Hog Farms Location: 300 Ozark Lane, Perryville, MO 63775 Lat.: 37.830077, Long: -89.750883
Contact: Grant Wood
Phone: 999-867-5309 Inspection(s): 3/14/2010 (no violation identified); 6/22/2014 (discharging without an NPDES permit) Unpermitted CAFO/AFO-000001 Location: Perry County, Missouri Lat./Lon.: Redacted from Website
Contact: Redacted from Website
Phone: Redacted from Website Inspection(s): 2/17/2009 (no violation identified); 5/25/2013 (no violation identified)



### Using the above example the unpermitted CAFO with u nmasked information (see Facility #1 in the above table) would not have its facility and contac t information displa yed on EPA’s website until 22 June 2014, which is the date the state or EPA Region identifie d that the facility had a Clean Water Act violation (i.e., discharging without an NPDES permit). If an unpermi tted CAFO does not have a Clean Water Act violation as determined by the authorized state NPDES program or EPA then the facility and contact information woul d not be displayed on EPA’s website (see Facility #2 in the above table). EPA is also considering maskin g the county name if there are only one or two unpermitte d CAFOs or AFOs in that county that do not have a C lean Water Act violation as determined by the authorized state NPDES program or EPA.

EPA solicits comment on whether the above table abo ve masks the appropriate data elements of unpermitt ed
CAFOs and AFOs that do not have a Clean Water Act v iolation as determined by the authorized state NPDE S program or EPA. In particular, EPA solicits comment on particular privacy concerns raised by the propo sed redacted data elements in the table above, as well as which of those data elements are most important to communities seeking to understand the robustness of the authorized state NPDES inspection program and the compliance status of nearby CAFOs and AFOs. Additio nally, as part of EPA’s decision-making, EPA will c onsider how the presence of facility name and location and facility contact data on other state and Federal ag ency websites affects the privacy expectations of CAFOs and AFOs.3 **From:** Bornstein, Josh - DM [ mailto:Josh.Bornstein@dm.usda.gov ]

**Sent:** Monday, May 12, 2014 9:05 AM

**To:** Johnston, Carey

**Cc:** John.D.Martin@HQ.DHS.GOV ; Meckes, Doug **Subject:** (U//FOUO) HSPD-9 and NPDES Proposed Rule

UNCLASSIFIED//FOR OFFICIAL USE ONLY

Carey,

Good morning. I sent over a summary of our meeting to our Physical Security Chief (responsible for se curing USDA facilities and advising others on security and thre ats) and to our Office of Inspector General (FBI li aison and rep to NJTTF) so that they could both take a look at this from di fferent perspectives.

OIG did not have additional comments. However, our physical security team echoed our concerns that th e that public release of information with the potential of being aggregated and possibly used strategically by group s to compromise assets should be weighed very carefully when talkin g about transparency of information. The intent of HSPD-9 is to defend the agriculture and food system against terr orist attacks, major disasters, and other emergenci es. Given this intent, and then looking at the protective security countermeasures at such facilities as slaughterhou ses and food processing plants, there is little or no security c ountermeasures in place. So, if a threat group were to target these types of facilities, given the information gleaned from p ublicly provided information, stopping or delaying the attack would be
difficult.

My colleagues at DHS also agree that the specific a reas of concern include the detailed information ab out the size and locations of permit holders, as well as the owner/o perator information that is provided. We also are concerned with the types of animals and numbers of animals being relea sed for CAFOs and other animal holding facilities. We understand the need for balance between openness and security; we encourage you to work with EPA’s Office of Home land Security to ensure that all safeguards are taken and the ent ire threat picture is taken into consideration prio r to final release of
information via ECHO.

Thank you for involving us in this review.

Sincerely,
Josh

Joshua Bornstein, MPA, CEM, CBCP CRI Project Manager/National Security Policy Staff Office of Homeland Security and Emergency Coordinat ion U.S. Department of Agriculture
Phone: 202.690.0822

UNCLASSIFIED//FOR OFFICIAL USE ONLY



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[1] See http://echo.epa.gov