Page 1 of 102

**Summary of OMB Review for the Proposed NPDES CAFO Reporting Rule :**  **Identification of the Substantive Changes to the Proposed National Pollutant Discharge Elimination**  **System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule (EPA** 

**– HQ** 

**– OW** 

**– 2011** 

**– 0188) Following Submission of that Draft Proposed Rule to Office of**  **Management and Budget for Review**
**I. Introduction**  Consistent with s ection 6(a)(3)(E) of Executive Order 1286 6, this document identifies the substantive changes made by the U.S. Environmental Protection Agency (EPA) to the proposed action, National Pollutant Discharge Elimination Sy stem (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule, after th e EPA submitted it to the Office of In formation and Regulatory Affairs of the Office of Management and Budget (OMB) for review on August 4 , 2011. The substantive changes made by the EPA after the Agency submitted the proposed rule to OMB on August 4, 20 11 are discussed in Section II below. The substantive changes made by the EPA in response to comments made by OMB, following submission to OMB on August 4, 2011, are discussed in Section III below. The remaining changes made b y the EPA to the August 4, 2011 version of the rulemaking package were non

- substantive in nature (i.e., clarifyingor enhancing the preamble’s statements of basis and purpose, clarifying the rule’s language or presentation, or ensuring that statements and figures in the preamble an d rule were consistent with the supporting record). **II. Substantive Changes Made by EPA Independent of Comments Made by OMB**  There were no substantial changes made b y EPA independent of comments made b y OMB. **III. Substantive Changes Made by**  **the EPA in**  **Response to Comments Made by OMB A.**  **Co -**  **proposing a second option to require only CAFOs in targeted areas to provide information rather**  **than seek comment on an**  **alternative targeted**  **approach .**  During E.O.12866 review, EPA modified the proposed action to propose a second regulatory option regarding which CAFOs would be required to report information to EPA. In the August 4, 2011 version, the proposed regulation would have required all C AFOs submit information to EPA; and as an alternative approach, EPA sought comment on a targeted survey of CAFOs
. In the revised proposal developed during E.O. 12866 review, the EPA is co

- proposing both options. The targeted option proposes an additional regulatory option whereby

onl y CAFOs in focus watersheds identified by

the EPA would be required to report information.Page 2 of 102

**B. State responsibilities**  The preamble to the proposed rule as submitted to OMB stated that all CAFOs would be required to submit the information to the EPA unle ss a state chooses to provide the information on behalf of a CAFO. In addition to allowing a state to choose to provide the information, the preamble also included an alternative approach to the proposed rule that would require state NPDES regulatory

agen cies to submit available information on CAFOs , and onl y require CAFOs to report where states fail to provide or did not have on file the necessary information. During E.O. 12866 review, OMB suggested that the EPA revise the preamble to clarify the differe nces between the proposed regulatory option and the alternative approach. To clarify that state submission under proposed option 1 is voluntary , the EPA added the following statements to the preamble , “EPA does not have a preference regarding whether indi vidual CAFOs submit the information or whether states submit it for them. The EPA does not anticipate that states that do not possess the CAFO information requested would choose to participate. In other words, the EPA does not anticipate that states woul d participate if participation 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 info rmation to the EPA given the state’s resources.” **C .**  **Penalties** The proposed rule as submitted to OMB referenced, but did not discuss, section 309 of the CWA, which provides federal enforcement authority to the EPA. During E.O. 12866 review, at OMB’s suggestion, the EPA included a section called, Failure to provide the information as required by today’s proposed action . This section explains CAFO owners or operators that fail to submit the information in accordance with the requirements specified in the proposed action would be in violation of the CWA. **D .**  **Proposed ongoing reporting requirement for CAFOs that do not have NPDES permit coverage**  The proposed rule as submitted to OMB required CAFOs that do not have NPDES permit coverage to submit the inf ormation or update previous submissions of the information every ten ye ars. During E.O. 12866 review, OMB suggested that the proposed rule should solicit comment on allowing unpermitted CAFOs relief from an y ongoing reporting requirements. The EPA modifi ed the proposal and now seeks comment on resubmission requirements for CAFOs without NPDES permit coverage. **E .**  **Discussion of human health and environmental impacts** The proposed rule as submitted to OMB discussed the potential human health and envi ronmental impacts of manure, litter and process wastewater generated b y CAFOs. At OMB’s suggestion, the EPA revised the discussion of heav y metals to clarify whether health risks have been connected to heav y metal concentrations or exposure from discharge s by CAFOs. The EPA added the following: “While metals in agronomically

- applied manures should pose little risk to human health and the environment, repeated application of manures above agronomic rates couldPage 3 of 102

result in exceedances of the cumulative metal loading rates established in Part 503, thereb y potentially

impacting human health and the environment. US EPA, Preliminary Data Summary Feedlots Point Source Category Study , EPA
- 821
- R
- 99
- 002 (1999), pp. 26

- 27.” **F .**  **Examples of data collection from unpermitted entities**  The proposed rule as submitted to OMB included examples of where the EPA used section 308 of the CWA to collect information. During E.O. 12866 review, OMB suggested that the EPA include in the examples where the Agency has used its 308 authority to collect information from unpermitted entities. The EPA added: “Recentl y, EPA conducted survey s to help assess whether the Agency

should revise its existing stormwater requirements, and if so, how and to what extent it should revise these requirements. The purpose of the survey s was to collect baseline information to inform EPA’s anal ys es of a possible stormwater rulemaking proposal. As part of this effort, the EPA sent questionnaires to regulated MS4s, non

- regulated MS4s, transportation MS4s, and NPDES permitting authorities.” **G .**  **Electronic submission of information** The proposed rule as submitted to OMB would require owners and operators to use an official survey form provided by the EPA to submit, either electronically or by certifie d mail, the required information to the EPA. The proposed rule as submitted to OMB would allow CAFOs an option to waive the electronic submission requirement if the information management s ys tem is otherwise unavailable , or the use of the Agency ’s information management sy stem would cause undue burden or expense
. During E.O. 12866 review, OMB suggested clarifying how a CAFO would request a waiver , and explain whether the CAFO would have to submit a waiver request and receive approval prior to submitting the information. The EPA added, “An owner or operator may

request a waiver from this electronic requirement at the time of submission and does not need to obtain approval from EPA prior to submitting a hard cop y of the form.” **H .**  **Alternative approaches** The proposed rule as submitted to OMB sought comment on alternative approaches to an information gathering survey for CAFOs. During E.O. 1 2866 review, OMB suggested clarifying whether the alternative approach would rel y on alternative voluntary mechanisms for promoting environmental stewardship and compliance . To clarify , the EPA added “under this alternative approach, the EPA would expand its network of compliance assistance, outreach tools and partnerships with industry to assist in identifying and addressing the most significant water quality problems. Comprehensive compliance assistance and outreach efforts are tools a regulatory

progr am can use in partnerships with industry to proactivel y protect and maintain water qualit y.” **I. Authorized Representative**  The proposed rule as submitted to OMB required CAFOs to provide contact information for the CAFO owner or operator. During E.O. 12 866 review, OMB requested that EPA allow the CAFO owner or operator to provide contact information for either the CAFO owner, operator orPage 4 of 102

an authorized representative. EPA modified the proposal to allow authorized representatives to serve as a CAFO’s point of contact to preserve the privacy of a CAFO owner if desired. An authorized representative is now defined in the proposal as “an individual who is involved with the management or representation of the CAFO. The authorized representative must be locate d within reasonable proximity to the CAFO, and must be authorized and sufficiently informed to respond to inquiries from EPA on behalf of the CAFO.” **J. Location of a CAFO’s Production Area**  The proposed rule as submitted to OMB required that a CAFO provid e the location of its production area b y latitude and longitude coordinates. During E.O. 12866 review, OMB requested EPA allow CAFOs to report the location of their production areas in either latitude and longitude coordinates or by providing the street a ddress of the production area. The EPA amended the proposal to allow CAFOs the flexibility to provide either latitude and longitude coordinates or the street address of the CAFO’s production area. The preamble seeks comment on alternative location identi fying information to latitude and longitude or the street address of the production area.Page 5 of 102

**Documentation of changes made during E.O. 12866 review CWA 308 2040**  **- AF22 NPRM**  **FRN ENVIRONMENTAL PROTECTION AGENCY**  **40 CFR Parts 9 and**  **122 [**  **EPA**

**– HQ** 

**– OW** 

**– 2011** 

**– 0188;**  **FRL -**  **XXXX -**  **X ]**  **RIN 2040 -**  **AF22** National Pollutant Discharge Elimination Sy stem (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 informat ion 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 s ection 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 f all within area s that have been identified as having water quality concerns likely associated with CAFOs (focus watershed s ). However, EPA would make every reasonable effort to assess the utility of existing publicly available data and programs to obtain identify ing 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 threePage 6 of 102

alter native approaches to gather information about CAFOs , which c ould be used to achieve the objectives of this proposed action in protect ing water qualit y. **DATES:** Comments on this proposed action must be received on or before [within 60 day s after publication]. EPA plans to hold two Webinars in November , 2011 to provide an overview of , and answer questions about , the propos ed rule requirements
. **ADDRESSES :**  Comments : Submit your comments, identified by Docket ID No. EPA

–HQ

– OW

–2011

– 0188, by one of the following methods:

 www.regulations.gov : Follow the on

- line instructions for submitting comments.

 Email: 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. Inaddition, 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., Wash ington, 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 o peration, 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 bePage 7 of 102

made available online at www.regulations.gov , including an y 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 yo u consider to be CBI or otherwise protected through www.regulations.gov or e - mail. The www.regulations.gov website is an “anony mous access” s ys tem, which means that EPA will not know your identity

or contact information unless you provide it in the body of your comment. If yo u send an e

- mail comment directly to EPA without going through 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 an y disk or CD

- ROM you submit. I f 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, an y form of encry ption , 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 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 b y st atute. Certain other material, such as copy righted material, will be publicly

available only

in hard copy . Publicly

available docket materials are available either electronicall y in www.regulations.gov or in hard cop y at the Water Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20004 . The Public ReadingPage 8 of 102

Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday , excluding federal holiday s. 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 W ebinars in November , 2011 to provide an overview of , and
answer questions about , the propos ed rule requirements
. In formation about how to register and access the Webinar can be found on EPA’s website 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 Penns yl vania Ave., NW., Washington, DC 20460; telephone number: (202) 564

- 6418; fax number (2 02) 564

- 6384; e
- mail address: mitschele.becky@ epa.gov. **SUPPLEMENTARY INFORMATION:** I. General Information A. Does This Action Appl y to Me? B. What Should IConsider as I Prepare M y 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 ReportPage 9 of 102

E. Litigation Regarding the 2008 Revised NPDES Permit Regulation and Effluent Limitations Guidelines for CAFOs in Response to the Waterkeeper Decision 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 an d 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 Id entify a Focus Watershed ? 2. Considerations When Determining Whether a Focus Watershed Meets the Criteria for Water Quality Protection 3. How Would EPA I dentify CAFOs from Which Additional Information is Needed?Page 10 of 102 4. What In formation Would EPA Requir e as Part of an Information Gathering Survey for CAFOs in a Focus Watershed ? 5. How Would EPA Geographicall y Define a Focus Watershed ? 6. How would EPA inform CAFOs of Their Responsibility if They Were Required to Respond to an In formation Request? 7. When Would CAFOs in a Focus Watershed be Required to Submit the In formation 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 C ollect Information from CAFOs if a State does not Report IV. Impact Anal ys is

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 ActPage 11 of 102

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 Safet y Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply , Di stribution, or Use I. National Technology

Transfer and Advancement Act J. Executive Or der 12898: Federal Actions to Address Environmental Justice in Minority Populations a nd Low

- I ncome Populations **I. General Information**  A. Does This Action Apply to Me? This proposed rulemaking would appl y to concentrated animal feeding operations (CAFOs) as defined in the National Pollutant Discharge Elimination Sy stem (NPDES) regulations at 40 CFR 122.23(b)(2), pursuant to s ection 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)) b y the NPDES permitting authority or b y EPA. The following table provides the size thre sholds 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 2Page 12 of 102

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. Turkey s....................................

........... 55,000 or more...... 16,500

–

54,999...... Less than

16,500. Layi ng hens or broilers (liquid manure handling s ys tem). 30,000 or more...... 9,000

–

29,999....... Less than 9,000. Chickens other than laying hens (other than a liquid manure handling s ys tem). 125,000 or more.... 37,500

– 124,999

... Less than

37,500. Layi ng hens (other than a liquid manure handling s ys tem). 82,000 or more...... 25,000

–

81,999...... Less than

25,000. Ducks ( other than a liquid manure handling s ys tem). 30,000 or more...... 10,000

–29,999

..... Less than

10,000. Ducks (liquid manure handling sy stem) ........ 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 S tates which pass over, across, or throu gh 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).Page 13 of 102

Th at table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely

to be regulated b y this proposed rulemaking . Th e table lists the ty pes of entities that EPA is currently aware of that could be regulated b y this action. Other t ypes 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 su bmit information. To determine whether yo ur 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. B. What Should I Consider as I Prepare My Comments for EPA? 1. Tips for Prepari ng Your Comments . When submitting comments, remember to:

• Id entify

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 spe cific 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 an y assumptions and provid e an y 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 su ggest alternatives.

• Explain your views as clearl y as possible.Page 14 of 102

• Make sure to submit your comments by the comment period deadline identified. 2. Submitting Comments to EPA. Direct your comments to Docket I D 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 an y personal information provided, unless the comment includes information claimed to be Confidential Business In formation (CBI) or other information whose disclosure is restricted b y statute. The http://www.regulations.gov w ebsite is an “ anon ymous access ” ' sy stem, 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 c omment directl y 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 o n 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. I f EPA cannot read your comment because of technical di fficulties 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 encry

ption, 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 www.regulations.gov or e - mail. Clearl y 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 thenPage 15 of 102

identify electronically

within the disk or CD ROM the specific information that is claimed as C BI. In addition to one complete version of the comment that includes information claimed as CBI, a cop y 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 n ot be disclosed except in accordance with procedures set forth in 40 CFR part 2. C. Under What Legal Authority is T his 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 W

ater Act Congress passed the Federal Water Pollution Control Act Amendments of 1972, (“Clean Water Act” or “CWA”) to ‘‘restore and maintain the chemical, phy sical, and biological integrit y of the nation’s waters’’ 33 U.S.C. 1251(a). Section 301(a) of the CWA pro hibits the “discharge of an y pollutant by an y 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 Sy stem (NPDES) permit program to authorize and regul ate 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 “an y discernible, confined and discrete conveyance, including but not limited to any
. . . concentrated animal feeding operation . . . from which pollutants are or may be discharge d
. . .” 33 U.S.C. 1362(14). Section 501 authorizes the Administrator to promulgate rules to carryPage 16 of 102

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 an y point source” for the following purpose: to carry out the objective s of [the CWA], including but not limited to (1) developing or assisting in the development of an y 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 an y such effluent limitation, or other limitation, prohibition or effluent standard, pretreatment standard, or standard of performance; (3) an y 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

reasonabl y require to carry out the objectives of the Act. 33 U.S.C. 1318(a). Section 309 of the CWA authorizes EPA to asses s penalties for violations of s ection 308 of the CWA. 33 U.S.C. 1319. B

. Environmental and Human Health Impacts of CAFOs

1. 2. 3. 4.Page 1 7 of 102

5. 6. 7. 8. 9.











 Despite more than 3 5 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 3 0 0 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 b y humans in the Unites S tates
. 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 potassium), pathogens,Page 18 of 102

heav y metals , and smaller amounts of other el ements 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. T o 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 ecos ys tem health through reductions in waterborne disease organisms and chemicals. More than 40 diseases found in manure can be transferred to humans, including ca usative 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 H EALTH P ERSPECTIVES 310 (2007). Heav y 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, RIS K A SSESSMENT E VALUATIONPage 19 of 102

FOR C ONCENTRATED ANIMAL F EEDING O PERATIONS , EPA
- 600
- R
- 04
- 042 (2004); and U S EPA, D EVELOPMENT D OCUMENT FOR THE F INAL REVI SIONS TO THE N ATIONAL P OLLUTANT D ISCHARGE E LIMINATION S YSTEM REGULATION AND THE E FFLUENT GUIDELINES FOR C ONCENTRATED A NI MAL F EEDING O PERATION , EPA
- 821
- R
- 032
- 001 (2002). EPA reported approximately 80 to 90 perc ent of the copper, zinc , and arsenic consumed is excreted. Possible adverse effects reported in the literature include the risk of ph yt otoxicity , groundwater contamination and deposition in river sediment that may eventuall y release to pollute the water. US EPA, RIS K A SSESSMENT E VALUATION F OR C ONCENTRATED ANI MAL F EEDING O PERATIONS , 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 establi shed in EPA regulations at 40 CFR part 503, thereb y potentiall y impacting human health and the environment. US EPA, P RELIMINARY D ATA S UMMARY F EEDLOTS P OINT S OURCE C AT EGORY S TUDY , EPA
- 821
- R
- 99
- 002 (1999), pp. 26
- 27. The health hazards that may result from chronic exposure to heav y 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 sy stem disorders, and neurodevelopmental problems (IQ deficits) from lead, LEAD AND C OMPOUNDS ( INORGANIC ) (CASRN 7439

- 92
- 1), available at http://www.epa.gov/iris/subst/0277.htm ; and cardiovascular effects, diabetes, respiratory effects,
nervous s ys tem problems, and reproductive effects and cancers from multiple tissue s from arsenic, NRC A RSENIC IN D RINKING W AT ER , NATIONAL A CADEMY P RE SS (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 a gents are often added to feed rations or water, directly injected intoPage 20 of 102

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 mil lion pounds. US F OOD AND D RUG A DMINISTRATION , 2009 S UMMARY REPORT ON A NTIMICROBIALS S OLD OR D ISTRIBUTED FOR U SE IN F OOD - PRODUCING A NI MALS (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. C ONGRESS , O FFICE OF T ECHNOLOGY A SSESSMENT , I MPACTS OF A NTIBIOTIC - RESISTANT B ACTERIA , 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. S COTT B RADF ORD ET AL ., REUSE OF C ONCENTRATED A NI MAL F EEDING O PERATION W ASTEWATER ON A GRICULTURAL LANDS , 37 J. ENV ’ T Q UALITY 97 (2008). Sy

nthetic 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 i n pathogens, increasing the severit y of disease and limiting treatment options for sickened individuals. US EPA, D ETECTING AND M ITIGATING THE ENVIRONMENTAL I MPACT OF F ECAL P AT HOGENS O RIGINATING FROM C ONFINED A NIMAL F EEDING O PERATIONS : 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. US EPA, NATIONAL W ATER Q UALITY INVENTORY : REPORT TO C ONGRESS

– 2004 REPORTING C YCLE , J ANUARY 2009
.Page 21 of 102

EPA
- 841
- R
- 08
- 001. The findings of this report are corroborated b y numerous reports and studies conducted b y government and independent researchers that identify the animal livestock industry as an important contributor of surface water poll ution. 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

link ed 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 way s 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 c ongressional requesters , recommending that EPA “should complete the Agency ’s effort to develop a national inventory of permitted CAFOs and incorporate appropriate internal controls to ensure the quality of the dat a.” US G OV ’ T A CCOUNTABILITY O FFICE , C ONCENTRATED A NI MAL F EEDING O PERATIONS

– EPA N EEDS M ORE INFORMATION AND A C LEARLY D EFINED S TRATEGY TO P ROTECT A IR AND W ATER Q UALITY , 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 t ype of operation, it is difficult to estimate the actual dischargesPage 22 of 102

occurring and to assess the extent to which CAFOs may be c ontributing to water pollution. ” , Id
. page 31
. The report also stated that “despite its long

- term regulation of CAFOs,
. . . EPA has neither the information it n eeds to assess the extent to which CAFOs may be contributing to water pollution , nor the information it needs to ensure compliance with the C lean W ater A ct
. ” 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 R egional 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

- ye ar 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

curre ntly 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 CAFO s. Id

. page 76. D
. United States Office of Management and Budget Report More recentl y, 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. US O FFICE OF M ANAGEMENT ANDPage 23 of 102

B UDGET , 2011 REPORT TO C ONGRESS ON THE B ENEFITS AND C OSTS OF F EDERAL REGULATIONS AND U NFUNDED M ANDATES ON S TA TE , L OCAL , AND T RIBAL ENTITIES (2001). This report stressed the importance of ensuring that regulations are “evidence

- based and data

- driven and hence based on the best available work in both science and soc ial science.” Id
. page 5. Specificall y, the r eport briefly outlines steps and best practices that are consistent with OMB’s recent recommendations for “ flexible, empiricall y informed approaches; increased openness about costs and benefits; and the use of disclosure as a regulatory tool. ” Id
. page 5. EPA believes that t oday ’s co - proposed rulemaking would be consistent with OMB’s recommendations b y promoting transparency and providing a comprehensive body of data that would serve as a basis for sound decision

- making about EPA’s CAFO program. E

. Litigation R egarding the 2008 Revised NPDES Permit Regulation and Effluent Limitations Guidelines for CAFOs in Response to the W aterkeeper 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. InFebruary 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 Wa terkeeper Alliance et al. v. EPA , 399 F.3d 486 (2dPage 24 of 102

Cir. 2005). Among other things, the court held that EPA does not have authority under the CWA to require CAFOs that have onl y 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. Subse quently , 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 s ection 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
s ection 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 agree d 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 comm ent 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:Page 25 of 102

10. Name and address of the owner and operator; 11. If contract operation, name and address of the integrator; 12. Location (longitude and latitude) of the operation; 13. Ty pe of facility ; 14. Number and t ype(s) of animals; 15. Ty pe and capacit y of manure storage; 16. Quantity

of manure, process wastewater , and litter generated annuall y b y the CAFO; 17. Whether the CAFO land

- applies; 18. Available acreage for land application; 19. If the CAFO land

- applies, whether it implements a nutrient management plan for land application; 20. If the CAFO land

- applies, whether it employ s nutrient management practices and keeps records on site consistent with 40 CFR 122.23(e); 21. If the CAFO does not land apply , alternative uses of manure, litter and/or wastewater; 22. Whether the CAFO transfers manure off site, and if so, quantity transferred to recipient(s) of transferred manure; and 23. 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 (5 th 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 s ectionPage 26 of 102

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
. Inparticular, EPA is authorized under section 308 to collect information from an y point source, and point sources are defined to include

“ an y discernible, confined and discrete conveyance, including
... an y . . . 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 “dut y 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 onl y those CAFOs that discharge is limited to the specific t ype of regulation at issue before the court: the duty to appl y 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
s ection 308 to collect information. This information

- gathering authorit y is broader than EPA’s authority to require permit covera ge, 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 “an y discernible, confined , and discrete conveyance, including
... any . . . concentrated animal feeding operation . . . from which pollutants are or may be discharge d . . .”)
. The plain language of s ection 308 expressly authorizes information collection for a list of purposes includi ng assistance inPage 27 of 102

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 CAFO s and would enable EPA, states , and others to determine the number of CAFOs in the United States and where they are locate d 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 - propos al is to improve and restore water quality by collect ing 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 S tates
. Facility

location and basic operational characteristics that relate to how and why a facility may discharge is essential information n eeded to carry out NPDES programmatic functions, which include the following:

 Evaluating NPDES program effectiveness;

 Id entifying and permitting CAFOs that discharge;

 Conducting education and outreach to promote best management practices;Page 28 of 102

 Determining pot ential 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. Th e six categories listed above represent key activities necessary

to ensure that CAFOs
are meeting their obligations under the CWA regarding protect ion of water quality from CAFO discharges and can be carried out most efficientl y and effectivel y when EPA an d 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 a ppl y to a ll CAFOs ; Option 2 ( Section D ) would identify focus watersheds where CAFO discharges may be causing water quality concerns and EPA could use its s ection 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 determ in ing whether requiring CAFOs to provide the information is necessary
. Both of these options propose revisions to the NPDES regulations, whic h 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 ty pe of animals , and number of acres available for land application. Section F

. Alternative Approaches to Achieve Rule Objectives discusses alternative approaches to a regulatoryPage 29 of 102

information request for CAFOs that may achieve similar outcomes ( i.e. , ensuring that CAFOs are complying with their obligations under the CWA ). B

. CW

A sec tion 308 data collection and EPA’s approach to ward collect ing 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 coll ect information from large groups of point sources when developing and reviewing ELGs. An ELG survey t ypicall y will request industrial sources to provide information such as the t ype 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 su ch additional controls. As an example, when reviewing the EL Gs applicable to the steam electric industry, EPA determined that the data available at that time did not include all wastewater streams generated b y 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 ty

pes and performanc e 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.Page 30 of 102

There is precedent for EPA using its section 308 authority to collect information from entities not currentl y required to obtain NPDES permits. Recently , EPA conducted survey s 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 regul ated Municipal Separate Storm Sewer Sy stem ( MS4s ) , non - regulated MS4s, transportation MS4s, NPDES permitting authorities, and owners and operat ors of developed sites
. EPA can use a variet y 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 n ot know the names and addresses of all CAFOs, mailing survey s 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 locall y - applicable notice in the Federal Register along with other form s of local outreach
. In the Federal Regist er, EPA also would include the description of the focus watershed a nd the reasons for its selection. To implement the rule effectivel y, EPA intends to conduct extensive outreach to the CAFO industry to ensure that all CAFOs know of the existence of this rule and an y requirement to respond. The owners or operators of AFOs that have not been designated and that do not confinePage 31 of 102

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. M oreover, allowing the states to submit the information required b y 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 burd en 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 (D.C. 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 W

ould Appl y 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? P roposed 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:Page 32 of 102

(i) The legal name of the owner of the CAFO or an authorized representative , the ir mailing address, email 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 promulgation of this 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 promulgation] but has not received coverage, the date the owner or operator submitted the permit app lication or Notice of Intent; (iv) For the previous 12

- month period, identification of each animal ty pe confined either in open confinement including partiall y covered area, or housed totally under roof at the CAFO for 45 day s or more, and the maximum number of each animal t ype confined at the CAFO for 45 day s 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 appli cation. 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 eitherPage 33 of 102

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 t o respond to inquiries from EPA on behalf of the CAFO. For example, an emplo ye e 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 informat ion , 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. 122.2 2 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 if desired. With this information, EPA would b e able to communicate directl y 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.

Inaddition 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 b y 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 CAF O’s production
area , as sp ecified in proposed paragraph § 122.23(k)(2)( ii), is essential for determining sourcesPage 34 of 102

of water quality

impairments and potential mitigation measures. A CAFO’s proximity to waterbodies also is relevant to whether it may cause water quality

impa cts
. C omprehensive 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 qualit y . In formation 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 b y a permit, knowing about the existence of these facilities gives EPA a basis for understanding how many facilities within each sector are actuall y able to completely prevent discharge s. This information might be transferable to other facilities in that sector that currentl y discharge. EPA or s tates 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 t ype (cattle, poultry, swine, etc.) of animals because the scale of the operation and the ty pes of animals confined relate to the t yp e and volume of manure generated and related environmental considerations , and also determine applicabl e CWA permitting requirements
. Specificall y, the number and type of animals provides an indication of the quantity and characteristic s 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 §Page 35 of 102

122.23(k)(2)(v)). A CAFO’s available land application area is likely to affect the amount of manure th at can be land applied for agronomic purposes and the potential amount of nutrient s that could flow into surrounding waters of the United States. Combining information about manure quantit y and characteristics with land available for application w ould indicate where issues might exist regarding excess manure. Section 308(b)(1) of the CWA requires that information collected b y the Agency shall be available to the public, except upon a satisfactory showing to the Administrator that any part o f 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 satisfactoril y shown that disclosure of the information is likely to ca use 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 requi red notification to the submitter and rights of appeal available before releasing an y information claimed to be confidential. EPA seeks comment on whether any information required by this proposed rule could reasonabl y 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 b y proposed paragraph § 122.23(k)(2). Specificall y, EPA is aware that providing latitude and longitude information might raise security or privacy

concerns for CAFO owner/operators, man y of whom are family farmers
. EPA seeks comment on alternatives toPage 36 of 102

submission of the latitude and longitude that would provide general information on a facilit y ’s location but not speci fic coordinates
. For example, th e survey could request the n ame of the nearest waterbody to th e 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 sy stems such as the Public L and Survey S ys tem (PL SS) ( i.e. township, range and count y 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 count y where located, or some other genera l 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 (dis cussed above) . EPA also seeks comment on how this ty pe 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 ty pe 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, ratherPage 37 of 102

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 CAF O (i.e. fiscal ye ar 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 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 informati on. This is required b y s ection 308 of the CWA
. However, neither the settlement agreement nor s ection 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 way s to address those
concerns (consistent with s ection 308), and on appropriate formats or venues to make it avai lable to the public. EPA also requests comment on whether the requirement to make any information collected pursuant to s ection 308 available to the public (except confidential business information) should factor into its determination about what information, if any , to collect from CAFOs. 2 . W hat information would EPA not require as part of the collection request survey for CAFOs?Page 38 of 102

In the settlement agreement with the environmental petitioners, arising out of litigation over the 2008 CAFO rule, EPA agre ed 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 request s information on only some of those 14 items because the Agency

believes it can effectivel y obtain site

- specific answers for the remaining questions directly from s tates, 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 repres entative 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 b y 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;

 Ty pe and capacit y of manure storage;

 Quantity

of manure, process wastewater , and litter generated annuall y b y the CAFO;

 If the CAFO land

- applies, whether it implements a nutrient management plan for land application;Page 39 of 102

 If the CAFO land

- applies, whether it employ s nutrient management practices and keeps records on site consistent with 40 CFR 122.23(e);

 If the CAFO does not land apply , alt ernative 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, p roposed 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 b y 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 inform ation 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 informatio n from CAFOs. Proposed paragraph § 122.23(k)(2) provides flexibility to states by

allowing each state to determine if it can easil y submit the information to EPA given the state’s resources.Page 40 of 102

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 submit s all items of information as specified b y proposed paragraph § 122.23(k)(2) . States that choose to submit this information would be re quired to u s e the Agency ’s information management s ys tem to ensure reporting consistency among states choosing to provide the information to EPA . CAFOs for which a state submits all of the re quired 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 s tates for which EPA is the NPDES permit authority and where the NDPES CAFO general or individual permit s have been updated in accordance with the 2008 CAFO rule , EPA would provide the information as if it were the s tate. EPA issue s updated NPDES CAFO per mits in the s tates of Id aho, New Mexico, Oklahoma , New Hampshire, and M assachusetts
. T he voluntary

state submission option does not preclude an y CAFO that wishes to do so from submitting the information required b y the proposed rule even where a state previously submitted the information for that CAFO. The next section of this preamble , When would states that c hoose to s ubmit the information be a llowed to p rovide the i nformation to EPA and when
w ould CAFOs be required to submit the information to EPA ? , identifies the time frames for submitting the information to EPA that would be required b y 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. Specificall y, EPA so licits 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 thePage 41 of 102

availability

of the information as specified by prop osed 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 s tates should be required to provide the information for their permitted CAFOs. 4

. Wh en would states that ch o ose to submit the information be allowed to provide the information to EPA and w hen would CAFOs be required to submit the information to EPA? Following the release of the Agency ’s information management s ys tem 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 an y time during their respective r eporting periods . EPA proposes the following submission deadlines:

 Required Reporting Period for State s Who Chose to Report : As specified by proposed paragraph § 122.23(k)(5)( i ii ), states that choose to submit information would be required to submit the information in proposed paragraph § 122.23(k)(2) [ within 90 day s from the effective date of the rule].

 Notification Period : [Within 60 day s 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 CAFO s ”).

 CAFO Reporting Period : CAFOs that do not appear on the CAFO list would be required to submit the information on an individu al facility basis to EPA within [90 day s 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 byPage 42 of 102

submitting its own information, but C AFOs must do so within [90 day s 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 SUBM ITTING THE INFORMATION REQUIRED AS SPECIFIED BY PROPOSED PARAGRAPH § 122.23(k)(2).

Entity Timeframe States that choose to report
EPA Must submit information within 9 0 day s of the effective date of the rule M ake s publicly

available within 60 day s 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 CAFOs on the CAFO list that prefer to provide information themselves Must submit information within 90 day s of the end of the notification period May submit information within 90 day s of the end of the notification period EPA requests comment on allowing 180 day s rather than 90 day s for states to submit information to EPA on behalf of CAFOs. This would allow additional time for unpermitted CAFOs wishing to be covered b y NPDES permits to apply for permit coverage (e.g., sub mit 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 b y proposed paragraph § 122.23(k)(2) or upd ate previousl y submitted information every ten ye ars . EPA proposes a ten
- ye ar resubmission period for unpermitted CAFO s because the Agency d oes not expect the information to change significantly within this ten

- year period . Specificall y, proposed paragra ph § 122.23(k)(4)(iii) would require CAFOs without NPDES permit coverage to submit or update the required information betweenPage 43 of 102

[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 newl y 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 rul emaking proposes to collect
. Under this proposed option, CAFOs with NPDES permits would not need to update their information every

ten ye ars 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 be would required to submit the information to EPA. EPA also seeks comme nt on the requirement for CAFOs without NPDES permit coverage to resubmit the information as specified in proposed paragraph § 122.23(k)(2 ) every ten ye ars . 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 electronicall y or by certified mail, the required information to EPA. EPA would not mail survey s 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 website or b y requesting a hard cop y 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 toPage 44 of 102

no tify 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 electronicall y using the Agency ’s informat ion management s ys tem available on EPA’s website. The Agency ’s W eb

- based information management sy stem would be the most effective, inexpensive way to submit the information. The W eb

- based information management s ys tem 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 in formation electronicall y 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 an y entity

that submits electronic documents directl y to EPA to use CDX or an alternative s ys tem designated by the Administrator. CDX would ensure the legal dependability of electronically

submitted documents and provide a secure environment for data exchange that would also protect p ersonally i dentifiable i nformation (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 qu ality

control

. Lo gic 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 cop y of the info rmation submitted through the Agency ’s information management s ys tem to maintain on site or at a nearb y location.Page 45 of 102

EPA proposes an option to waive the electronic submission requirement if the information management sy stem is otherwise unavailable or th e use of the Agency ’s information management s ys tem 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 cop y of the form
. If submitting a hard cop y 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 . T he official paper survey form is attached as an appendix to this preamble. There are two way s that a CAFO owner or operator who cannot submit the information electronicall y would be able to access the official paper survey form and instruct ion 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 fi nal rule. Alternativel y, 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 s tates, tribal governments, and interested stakeholders to notify CAFOs about the proposed official survey form and the availability of the Agency ’sPage 46 of 102

information management sy stem. EPA se eks comment on the data submission approach in proposed paragraph § 122.23(k)(3). EPA also seek s comment on the most effective way s to notify CAFOs , when the rule is finalized , that they must submit the information required as specified b y propo sed 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 s tates 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 electroni cally submit the information required by proposed paragraph § 122.23(k)(2) using the Agency ’s information management s ys tem. 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 s ys tem through CDX. Proposed paragraph § 122.23(k)(5)( ii ) would limit states to providing onl y current data, including data obtain from the state’s most recent application proces s 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
. T o clearl y 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 website ( www.epa.gov/npdes/) a final list of CAF Os 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 alsoPage 47 of 102

make available the information provided by the states for each CAFO [within 60 day s after the end of the 90

- day

state submission timeframe]
. As explain ed in the section , Wh en would states that choose to submit the information be allowed to provide the inf ormation 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 day s of the list and responses being published ] . CAFOs o n 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. S tates would be required to provide the electronic data files in an Extensible Markup Language (XML) format that is prescribed b y EP A and compatible with Agency standards in support of regulatory

data and information flows by the deadline specified in proposed paragraph § 122.23(k)(5)( ii i ). If states already store CAFO information within their respective databases, states would need to map their CAFO database elements to the prescribed XMLCAFO schema for data exchange. States that do not store CAFO information electronically or maintain records in hardcop y would need to manually populate the CAFO survey using the W eb

- 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
resource s from regulatory implementation and enforcement efforts to submit the information required b y proposed paragraph § 122.23(k)(2) to EPA. EPA anticipate s that states that choose to report on behalf of their state’s CAFOs would already possess this information and therefore,Page 48 of 102

would n ot n eed 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. T his 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 cho o ses to provide the information to EPA . EPA seek s 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 s tate s should be required to submit the information on behalf of permitted CAFOs
.Page 49 of 102

D

. Option 2 Wo uld Apply to CAFOs in a Focus Watershed EPA also propos es an option that would first identify focus watersheds with water qualit y 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 p ublicly

available data and programs to identify CAFOs by

working with partners at the federal, state, and local level before d etermining 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 scop e 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 likel y 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 necess ary data before using its 308 authority to collect it directl y from CAFOs
. EPA could use existing data sources to identify areas of water qualit y 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. P ublicly available data could also be used to identify

watersheds with high concentration s of CAFOs. D ata from these sources could be further complemented by numerous other existing data from EPA, states, universities,Page 50 of 102

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 qualit y, including but not limited to watershed characteristics, sources of water quality impairments, pollutant loadings from agriculture, CAFO locations, characteristics of CAFO op erations, 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 f

ederal, s tate, and local agencies, and interested stakeholders c ould also use the collected information to target their outreach to CAFO owners and operators, target technical and financial assistance that helps CAFOs appl y 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 c ould yi eld strong results in a shorter period
. Id entifying focus watersheds c ould produce additional benefits in addressing water quality impai rments. In focus watersheds , federal and s tate 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 an d 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 qualit y goals , including s tate water quality standards. EPA could also e valuate results from existing or future water qualit y monitoring and modeling and provide these results to the public periodicall y. Such education and outreach efforts could promote the implementation of best management practices. Interested stakeholders could use information collected b y this proposed option to target deliveryPage 51 of 102

of its technical and financial assistance including conservation s ys tems 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) onl y from CAFOs located in identified focus watersheds
. EPA would make every

reasonable effort to assess the utility of existing publicly

available data
an d 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 w ould EPA i dentify a f ocus w atershed? EPA would identify focus watersheds based on water qualit y 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 op tion 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 th ose 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.Page 52 of 102

However, rel yi ng on impaired waterbody information is limited because many waterbodies have not been assessed or the impairment cause has not been identified
. A dditionally , in these impaired water

bodies 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, man y states have not set standards for nutrients, which are a key indicat or for animal agriculture’s impact on water quality. To address this limitation, EPA also could use other data indicating water qualit y concerns relating to CAFOs , such as nutrient monitoring data from state or federal agenc ies
. 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 rel y on existing partnership s to identify waterbodies with impacts associated with CAFOs. For exampl e, a March, 2011 m emo randum 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 stat es are working on strategies for reducing nitrogen and phosphorus pollution. U.S. EPA Mem o randum , Working Effectivel y 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_fr amework.pdf

. The information collected by today ’s proposed rulemaking could assist states as they identify areas with water qualit y concerns by provi ding 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.Page 53 of 102

In addition to being areas where water quality issues of concern are likel y t o exist due to CAFOs, a focus watershed would be identified based on one or more of the additional following proposed criteria:
a. High priorit y watershed due to other fa ctors such as vulnerable ecos ys tems, drinking water source suppl y, watersheds with high recreational value, or outstanding natural resources waters (Tier 3 waters) ; b. Vulnerable soil t ypes ;
c. High densit y of animal agriculture ; and/or d. Other relevant informatio n (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. E PA also solicits comment on how frequently EPA should review and/or revise its ident ification of focus watersheds
. 2

. Considerations when determining whether a focus watershed meets the criteria for water quality protection
a. High priorit y watershed due to other factors (such as vulnerable ecos ys tems, drinking water suppl y source, wate rsheds 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 S tates
. These include waters with excellent water quality, including high quality

waters, where water quality conditions must be maintained and protectedPage 54 of 102

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 qual ity standard data to locate these watersheds. EPA seeks comment on high priorit y watershed due to other factors as a criterion to identify a focus watershed. b
. Vulnerable soil t ypes Vulnerable soil t ypes 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, particularl y 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 P rogram’s report of phosphorus; reports prepared for Congress, such as Animal W aste Management and the Environment: Background for Current Issues and Animal W aste Pollution in America: An Emerging National Problem. US C ONGRESSIONAL RESEARCH S ERVICE , 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 b y state conservation districts and data from land grant universities that evaluate the nutrient levels of soils also could bePage 55 of 102

sources of information to support identifying a focus watershed because of high nutrient levels in the soil
. Inaddition 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 greatl y exceeds the capacit y of available land for agronomic application of m anure, it is more likely that CAFOs will appl y manure in excess of crop nutrient requirements or experience issues associated with inadequate storage capacit y. EPA seeks comment on vulnerable soil ty pes as a criterion to identify a focus watershed.
c . High densit y 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 densit y of animals or reports a high number of operations that meet the CAFO animal size thr esholds as specified b y 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 ty

pe 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 communi ties that are or may be disproportionately impacted b y environmental pollution. Supporting this statement is a report from The Lawyers’Page 56 of 102

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 Injustic e 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

- Environmental

- Justice

Report
- 6
- 9
- 10.pdf

). Working with CAFOs in those communities to address water qualit y 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. 3. How would EPA identify CAFOs from which additional information is needed? After establishing an area with a water quality impairment or water qualit y concerns likel y 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 CA FOs b y 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 CAF Os in the focus watershed to provide the necessary information. EPA requests comment on alternat ive sources of information that could be used to gather the necessary information. 4

. What i nformation w ould EPA require as part of an information gathering survey for CAFOs in a f

ocus w atershed ?Page 57 of 102

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 , the ir mailing address, email 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 promulgation of this 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 promulgation] 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 ty pe confined either in open confinement including partiall y covered area, or housed totally under roof at the CAFO for 45 day s or more, and the maximum number of each animal t ype confined at the CAFO for 45 day s or more; and

1 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 t o respond to inquiries from EPA or the state about the CAFO.Page 58 of 102

(v) Where the owner or operator land applies manur e, 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, s ee section , What information would EPA require as part of an information gath ering 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 geo graphically by either Z ip C odes, 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 variet y 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] day sPage 59 of 102

before the beginning of any information submission period. EPA would also conduct e xtensive 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 authorit ies 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 day s] prior to the start of an y 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 way s to inform and reach CAFOs in targeted areas if they ar e required to provide information
. EPA also seeks comment on the timeframe provided for outreach to CAFOs in targeted area s. 7

. Wh en w ould CAFOs in a focus watershed be required to s ubmit the i nformation to EPA? If EPA needed to use 308 authority to collect information from CAFOs, a fter the end of EPA’s outreach period for CAFOs in the targeted area, CAFOs would have [ 9 0 day s] 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] day s 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.Page 60 of 102

8

. How w ould CAFOs in a focus watershed s ubmit i nformation 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 , propose d paragraph § 122.23(k)( 5 ) would require the owner or operator of a CAFO to submit the official survey form electronicall y using the Agency ’ s information m anagement s ys tem available on EPA’s website. EPA proposes to waive the electronic submission requirement if the information management sy stem is otherwise unavailable or the use of the Agency ’s information management sy stem would cause undu e burden or expense over the use of a paper survey form. See section How would CAFOs 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 I nformation as R equired by This Proposed R ulemaking 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 fail ed 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 violati ons 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 b y the Agency ’s g eneral 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 athttp://cfpub.epa.gov/compliance/resource s/policies/civil/penalty /
.Page 61 of 102

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 way s 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 ru le. 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 b y pr oposed 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 b y 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 qualit y. 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 thePage 62 of 102

sources of information that currently exist, identifies some of the limitations EPA faces in using these sources and seeks comment on way s in which EPA could leverage these sources collectively

to address impacts from CAFOs.
a. U
. S
. D epartment of A griculture 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). Accordingl y, USDA withholds any count y - 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 currentl y 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 facility

- specific data, EPA is considering way s in which the Agency could combine the publicly

available, a ggregated data from USDA with other data sources to obtain a comprehensive, consistent national inventory of CAFOs to assess and address their impacts on water qualit y. b. State permitting programsPage 63 of 102

State NPDES permitting programs should have data on p ermitted 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 electronicall y accessible, some states have online databases or maps that display CAFO data. For example, Miss ouri requires permit coverage for all CAFOs as well as a subset of operations with less than 1,000 animal units and display s a map of these operations in relation to waters of the state ( http://www.dnr.mo.go v/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) developme nt and reports required under s ection 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, ty pe of permit issued to an operation and latitude and longitude infor

mation 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 readil y available. In addition, information on unpermitted CAFOs generall y 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 Complian ce In formation Sy stem (I CI S) or through the Online Tracking Information System (OTI S), whichPage 64 of 102

integrates ICIS data with information from other databases such as EPA’s Permit Compliance Sy stem (PCS). EPA estimates that only 15 to 20 percent of CAFO permit d ata is stored in one of these two sy stems because many states use separate databases to manage and implement permitting programs. A further challenge in 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 solel y on state data would not be comprehensive. EPA solicits co mment on way s 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 th eir impacts on water qualit y.
c. State registration or licensing programs Permitting programs administered by the s tate are not the sole source of state information on CAFOs. Man y 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 ty picall y provide onl y 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 anyPage 65 of 102

given day to register with the county con servation districts. Information that could be obtained from this registration list includes: number and kind of poultry housed; location of the operation; litter management s ys tem used and its capacity ; acreage controlled by the operation; litter land ap plied during the last ye ar; amount and destination of litter transferred; amount of litter utilized by the producer and the ty

pe 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

count y 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 b y 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 effo rt to address CAFO impact on water quality
. EPA seeks input on way s 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 nat ional inventory of CAFOs to assess and address their impacts on water qualit y. d. Satellite imagery

and aerial photographs EPA, s tates , and academic institutions have used satellite imagery to locate and map CAFOs. For example, through a cooperative agreement with EPA, Jacksonville State UniversityPage 66 of 102

and Friends of Rural Alabama (JSU and FRA) created the American Environmental Geographic Information Sy stem ( http://www.aegis.jsu.edu/) to assist in watershed analyses and planning. This sy stem provides maps and environmental data for a variety of industries, including animal feeding operations, in a sel ect 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 sy stem 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 S tates
. and prioritizing follow

- up site inspections. While resource intensive, fl yovers can be used to cover specific geographic areas and/or areas with difficult terrain. These methodologies present certain limitatio ns 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 actuall y contained animals, whether an operation m et 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 photogra

phy or satellite images may

be combined with state and county websites 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. EP A solicits comment on other way s to augment information from satellite images and aerial photographyPage 67 of 102

location information to obtain a comprehensive, consistent national inventory of CAFOs to assess and address their impacts on water quality
. e. Reporti ng requirements under other programs EPA’s Assessment, TMDLTracking and Implementation Sy stem ( ATTAINS) database ( www.epa.gov/waters/ir) display s water qualit y finding s reported b y the states under s ection 305(b) and s ection 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 b y the states based primarily on monitoring targeted to area s 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 Repo rts (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 way s 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 currentl y in the process of developing a rulemaking to amend reporting requirements f or livestock operations on air emissions under the Comprehensive Environmental Response, Compensation, and L iability Act ( CERCLA) s ection 103 and ( Emergency Planning & Community

Right

- to - Know Act) EPCRA
s ection 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 proposed rulemaking, there is an opportunity

to explore how to leverage reporting to EPA from livestock operations to meetPage 68 of 102

information needs under CERCLA/EPCRA and the CWA simultaneously . EPA solicits comment on way s 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 N ongovernmental 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 p rovide helpful background information and case studies. EPA currentl y 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 CAFO s . 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 onl y 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.Page 69 of 102

2

. Alternative M

echanisms for Pro moting E nvironmental S

tewardship and C

ompliance Under this alternative approach, EPA w ould expand its network of compliance assistance , outreach tools and partners hips 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 proactivel y protect and maintain water qualit y. EPA recognizes that stewardship and recognition pr ograms, 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 ), whi ch 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 qualit y. 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.Page 70 of 102

3

. Require A uthorize d S tates to S ubmit CAFO information F rom their CAFO R egulatory Programs and Only C

ollect I nformation from CAFOs if a S tate D oes N

ot R eport
. 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 s tates may know the universe of CAFOs in th eir state to ensure proper implementation and enforcement of the CWA’s permitting requirements and to protect water qualit y. Although EPA recognizes that states may not have information on all CAFOs in their state, this alternative approach would require s tates 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 likel y that a number of states already have the information that would be required b y proposed paragraph § 122.23(k)(2) for NPDES permitted CAFOs. S ome 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 p ermits 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 EPAPage 71 of 102

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 s tates 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. **I V.**  **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 revisio ns 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 attainme nt of the benefits calculated in the 2003 rule b y 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 an y permitting requirements or the technical requirements under the E ffluent L imitations Guidelines and Standards (ELGs), so CAFOs would not incur an y compliance costs associated with modifications to structures or operationalPage 72 of 102

practices. The onl y 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) analy sis, the Agency projected the b urden 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 b y thes e operations. It is important to note that while EPA’s estimates of CAFOs are adequate for purposes of completing the impact analy ses 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 approximate ly 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 anal ys es. These anal ys es had assumed that CAFOs appl yi ng 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 reportingPage 73 of 102

requirements as well as time to comp lete the survey form electronicall y or by paper, when necessary . EPA’s PRA analy sis 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 to tal annual administrative burden of approximately $0.2 million under the first proposed option where all CAFOs would submit their information to EPA
. T he co sts 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 an y 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 ty pe of batch reporting would not impose an undue burden. This Federal Register notice also includes an alternative approach that would require states to provide inf

ormation on CAFOs in their state. EPA costed this alternative approach separately in the proposed rule supporting anal ys is. Under this approach, the reporting burden would shift from CAFOs to states since states would be responsible for reporting the dat a 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 thi s scenario, EPA estimated that it would take states one hour to prepare and submit records for 20 facilities. This labor burden combined with phot ocopying costs yi elded a total s tate respondent average incremental annualPage 74 of 102

cost of $16,391. EPA solicits comment on the burden anal ys is regarding the requirement for states to submit CAFO information from their regulatory programs. The documentation in the public record on the PRA anal ys is for this proposed rulemaking discusses more full y the assumptions used to project the associated administrative burden, including the burden faced b y CAFOs that subsequently may need to update any information submitted previously
. **V .**  **Statutory and Executive Order Reviews** A. Executive Order 12866: Regulatory P lanning 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 an y changes made in response to OMB recommendations have been documented in the docket for this proposed action. In addition, EPA prepared an anal ys is of the potential costs and benefits associated with this proposed action. This analy sis is summarized in Section IV of this preamble above, entitled Impact Analysis . A cop y of th e supporting anal ys is 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 b y EPA was assigned EPA ICR No. 1989.08.Page 75 of 102

The proposed rule would require CAF Os to provide EPA with basic facility information. Th is 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, an d 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 compl y 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 overl y burdensome , and the burden the
s tates would incur would be in lieu of a comparable burden avoided by CAFOs that the s tates reported for
. Additional details on the assumptions and parameters of the PRA anal ys is are available in the I CR document referenced above, which is available in the docket supporting this proposed rulemaking. Burden is defined at 5 CFR 1320.3(b).Page 76 of 102

A federal agency

may not conduct or sponsor, and a pe rson is not required to respond to, a collection of information unless it display s 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 informati on, 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 I CR 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 S treet, NW, Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the IC R between 30 and 60 day s after [insert the date of publication], a comment to OMB is best assured of having its full effect if OMB r eceives it b y [insert date 30 days after publication]. 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) gen erall y requires a federal agency to prepare a regulatory

flexibility

analy sis of any

rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or an y 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 CFRPage 77 of 102

121.201; (2) a small governmental jurisdiction that is a government of a city , count y, town, school district, or special district with a populati on 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, Icertify that th is proposed action would not have a significant economic impact on a substantial number of small entities. This proposed rule does not change an y of the substantive requirements for CAFO operators. While it does increase the net paperwork burden faced b y f acilities compared to the burden imposed under the 2003 CAFO rule, these incremental costs are small compared to the existing paperwork burden faced b y CAFOs and represent an increase in annualized compliance costs that is significantl y less than one perce nt 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 an y 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), P.L . 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 generall y mustPage 78 of 102

prepare a written statement, including a cost

- benefit analy sis, 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 ye ar. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generall y requires EPA to identi fy

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 an y 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 prov ide 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 g overnments, in the aggregate, or the private sector in an y one ye ar. The proposed rule also presents an alternative approach that would require states to submit information on CAFOs. EPA determined that this alternative approach, which principall y would involve photocopying , would also not result in aPage 79 of 102

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 th at might significantl y or uniquel y affect small governments. There are no local or tribal governments authorized to implement the NPDES permit program and the Agency is unaware of an y local or tribal governments who are owners or operators of C AFOs. 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 this option; therefore, EPA does not consider t his 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.Page 80 of 102

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 an y Indian tribal governments that own CAFOs that would be subject to the proposed reporting requirements. Thus, Executive Order 13175 do es 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 intera ctions 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 an d Safety Risks Executive Order 13045 “Protection of Children from Environmental Health Risks and Safet y Risks” (62 FR 19,885; April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defi ned under Executive Order 1286 6 and (2) concerns an environmental health or safety risk that EPA has reason to believe mayPage 81 of 102

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
eco nomicall y 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 analy sis 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 enviro nmental 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 suppl y, 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 significant ly 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 voluntaryPage 82 of 102

consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impract ical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted b y voluntary consensus standards bodies. NTTAA directs EPA to provide Con gress, 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 an y 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 nearb y CAFOs with potential effects on neighboring communities. Inaddition, 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 NP DES CAFO program. As part of EPA’s continued effort to meet its obligations under E.O. 12898, the Agency has completed an anal ys is to identify those portions of the country where there are both largePage 83 of 102

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 rel ated 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 analy sis 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.Page 84 of 102 United States Environmental Protection Agency Washington, DC 20460 Form Approved INFORMATION GATHERING SURVEY FORM FOR CONCENTRATED ANIMAL FEEDING

OPERATIONS OMB No. 2040
- 0250 EPA I CR No. 1989.08 **SUBMISSION INFORMATION Electronic Submission Waiver**  I hereby acknowledge a waiver from the use of EPA’s electronic information management system because the use of such system will incur undue burden or expense over my use of this paper survey form. Briefly describe the reason why use of the electronic system causes undue burden or expense.

____________________________ _________________________________________________. Please check the appropriate box. Check only one checkbox. First Submission Resubmission with changes to the information supplie d previously Resubmission with no change to the information supplied previously Operation no longer a concentrated animal feeding operation (CAFO) **QUESTION 1. CONTACT INFORMATION**  Provide contact information by completing the table below. OWNER /OPERATOR INFORMATION or AUTHORIZED REPRESENTATIVE INFORMATION Name of the Owner

/Operator OR Authorized Representative Primary Telephone for Owner /Operator or Authorized Representative Email Address (if available) Mailing Address Street/P.O. Box City State Zip Code **QUESTION 2 . LOCATION**  **INFORMATION** Please provide the location of the production area either b y 1) latitude and longitude (in decimal degrees) ; or b y the street address of the CAFO’s production area
. Geographic Latitude and Longitude of the Production Area Latitude : Longitude: OR Address of the CAFO’s Production Area Street Address City State Zip CodePage 85 of 102

**QUESTION 3**  **. NPDES PERMIT INFORMATION** Does the CAFO have a current NPDES permit? No: Proceed to Section 4

. Type and Number ofAnimal s . Yes: Provide NPDES permit number and the date of issuance: NPDES Permit No. /Tracking No./ID :__

___________________________________________ Date of issuance: Month:_ _______________Day :______________Year:________________ Pending: Provide the date that the NOI or permit application was submitted for coverage under an NPDES permit: Month: ______________________________Day :______________Year:_________________ **QUESTION 4 .**  **TYPE AND NUMBER OF ANIMALS** Use the table to indicate the maximum number of animals for each animal ty pe held either in open confinement including partially covered or house d totally under roof at the CAFO for a total of 45 day s or more in the previous 12 months. The 45 day s do not have to be consecutive. 4.1.1 ANIMAL TYPE 4.1.2 MAXIMUM NUMBER OF ANIMALS  Mature Dairy Cows (milked or dry)  Veal Calves Cattle (not dairy or veal calves)  Heifers  Steers  Bulls  Cow/calf pairs  Swine (55 lbs. or over)  Swine (under 55 lbs.)  Horses  Sheep or Lambs  Turkeys  Chickens (Broilers)  Chickens (Layers)  Ducks  Other: Please Specify **QUESTION 5 .**  **LAND APPLICATION** Where the CAFO land applies manure, litter, or process wastewater : a. In the previous 12

- months, how many acres of land under the control of the CAFO were available for appl yi ng the CAFO’s manure, litter, and/or process wastewater? (Please include land owned b y the CAFO, land that is rented or leased **from others,** and any land that is owned b y the CAFO that is rented or leased **to others in which the owner or authorized**  **representative of the CAFO retains nutrient management decisions)** 
.

______ ____ - __________________acres
**SIGNATURE REQUIREMENTS**Page 86 of 102

All submissions provided pursuant to this information gathering survey form must be signed and dated b y a responsible party in accordance with 40 CFR 122.22 for following certification statement: **I certify under penalty of law that I am the responsible pa rty for a concentrated animal**  **feeding operation (CAFO), identified as [Name of CAFO]. Based on my inquiry of the person or persons directly responsible for gathering the information,**  **I certify that the information contained in or accompanying this submiss**  **ion, to the best of my knowledge and belief, is true, accurate, and complete.**  **I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.**  Signature________

_______________________ Printed Name_______________________ Title_________________________________________________________________________ Date_________________________________________________________________________Page 87 of 102 **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 Defin itions
. 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 day s after EPA makes available a list of CAFOs for which a state has provided the information ] and under proposed option 2, owners of CAFO s 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 day s 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, 20 22 ] 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 electronicall y except where electronic submission would cause an undue burden or expense. Electronic submissions may be made via the Agency ’s information management sy stem. Please go to www.epa.gov/npdes/afo for more information on how to submit.Page 88 of 102

However, EPA is making paper filing available in recognition that not everyone has internet access. If using a hardcop y 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 wh y 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 Inf ormation**  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 busin ess has satisfactoril y 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 confidentiali ty 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 ty ped legend, or other suitable form of notice complying language such as ‘trade secret’, ‘proprietary ,’ or ‘comp an y confidential.’ Allegedl y confidential portions of otherwise nonconfidential documents should be clearl y identified by the business, and may be submitted separatel y t o 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” If you claim an y 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 yo ur CBI claim. In formation covered b y a claim of confidenti alit y 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 b y a business confidentially claim may

be disclosed to other employees, officers, or a

uthorized representatives of the United States concerned with implementing the Clean Water Act. **SURVEY FORM INSTRUCTIONS Submission**  **Information**Page 89 of 102

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 b y the latitude and longitude for the production area or b y 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 s ys tem 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 t o 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 lon gitude for the entrance to the production area b y using interactive maps available on the internet. Latitude or longitude information can be obtained at the following websites: http://www.satsig.net/maps/lat

long

- finder.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 readil y converted through a variet y 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 cop y 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.”Page 90 of 102

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 an y 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 ty pe held either in open confinement including partiall y covered or housed totally under roof held at the CAFO for a total of 45 day s or more in the previous 12 months. CAFOs with multiple production cycles should provide the maximum num ber of animals confined for an y 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 day s or more. It is important to n ote that the 45 day s do not have to be consecutive, and the 12

- month period does not have to correspond to the calendar y ear. Th e 12
- month does not have to correspond to the calendar year. If an animal is confined at an operation for an y 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 ye ar - round and never confines less than 1,000 head of cattle at an y 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 day s, 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 day s or more and during the spring, the operation confined 1,000 head of cattle. This operation should report in the ta ble under calf/cow pairs and list 1,500 under the column for “Open Confinement (include partially covered)”. **Section 5**  **. Land Application**  P rovide the amount of acres available for land application. Report in whole acres, rounding up to the nearest whole number if ne cessary . 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 an y 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 app lication area, and the CAFO determines when and how much manure is applied to fields not otherwise owned, rented, or leased b y the CAFO
. Exclude residential or other land not used for agricultural purposes. **Section 6**  **. Signature Requirements**Page 91 of 102

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
. **SURVEY FORM DEFINITIONS** The definitions prov ided 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 respectivel y, in which case the statutory or regulatory de finitions apply
. 1. “Animal feeding operation” means a lot or facility (other than an aquatic animal production facilit y) where animals have been, are, or will be, stabled, confined, and fed or maintained for a total of 45 day s 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 an y 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 fo r purposes of determining the number of animals at an operation, if they adjoin each other, are next to, sharing propert y lines or if they use a common area or s ystem for manure management or the disposal of wastes. (40 CFR 122.23(b)(2)). 2. “Authorized r epresentative” 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 inqu iries from EPA on behalf of the CAFO. 3. “ Concentrated animal feeding operatio n ” (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 sy stem for the disposal of wastes. 4. “ L arge concentrated animal feeding operatio n ” means an AFO that stables or confines as man y as or more than the numbers of animals specified in an y 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 55pounds or more; (v) 10,000 swine each weighing less than 55 pounds; (vi) 500 horses; (vii) 10,000 sheep or lambs; (viii) 55,000 turkey s; (ix) 30,000 laying hens or broilers, if the AFO uses a liquid manure handling sy stem; (x) 125,000 chickens (other than laying hens), if the AFO uses other than a liquid manure handling s ys tem; (xi) 82,000 layi ng hens, if the AFO uses other than a liquid manure handling s ys tem; (xii) 30,000 ducks (if the AFO uses other than a liquid manure handling s ys tem); or (xiii) 5,000 ducks (if the AFO uses a liquid manure handling sy stem).Page 92 of 102

5. “Manure” includes manure, or be dding 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 an y AFO with the ty pe 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 t ype 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 turkey s; (I) 9,000 to 29,999 laying hens or broilers, if the AF O uses a liquid manure handling s ys tem; (J) 37,500 to 124,999 chickens (other than laying hens), if the AFO uses other than a liquid manure handling s ys tem; (K) 25,000 to 81,999 laying hens, if the AFO uses other than a liquid manure handling s ys tem; (L) 1 0,000 to 29,999 ducks (if the AFO uses other than a liquid manure handling s ys tem); or (M) 1,500 to 4,999 ducks (if the AFO uses a liquid manure handling s ys tem); and (ii) Either one of the following conditions are met: (A) Pollutants are discharged into w aters of the United States through a man

made ditch, flushing s ys tem, or other similar man

- made device; or (B) Pollutants are discharged directl y 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 propert y owner or any person who owns, leases, operates, controls, or supervises the operations at the CAFO. An y person who operates an AFO subj ect 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 waste water” means water directl y or indirectl y used in the operation of the AFO including but not limited to: spillage or overflow from animal or poultry watering s ys tems; 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 by product including, manure, litter, feed, milk, eggs, or bedding.Page 93 of 102

10. “Producer” means an y 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 lo ts, feedlots, confinement houses, stall barns, free stall barns, milkrooms, milking centers, cowyards, barnyards, medication pens, walkers, animal walkway s, 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, handl ing, 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. 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 limite d to manure, litter, and/or process wastewater, discharged into water. **Federal regulations require the certification to be signed as follows:** A. For a corporation, b y a principal executive officer of at least the level of vice president. B. For a partne rship or sole proprietorship, by a general partner or the proprietor, respectivel y; or C. For a municipalit y, State, Federal, or other public facility, b y 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 acc uracy 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, D.C. 20460. Include the OMB control number in any correspondence. Do not send the completed survey

form to this address.National P ollutant Discharge Elimination Sy stem (NPDES) Concentrated Animal

Feeding Operation (CAFO) Reporting Rule

Page 94 of 102 **List of Subjects** 40 CFR Part 9 Environmental protection, Reporting and recordkeeping requir ements. 40 CFR Part 122 Administrative practice and procedure, confidential business information, hazardous substances, reporting and recordkeeping requirements, water pollution control. [Dated  ] [Signed ** **] 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 authorit y citation for part 9 continues to read as fol lows: **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 authorit y 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 represent ative , and the ir mailing address, email address (if available) and primary telephone number
. ( An authorized representative must be an individual who i s 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 inqui ries 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 promulgation], the date of issuance of coverage under the NPDES permit, and the permit number. If the owner o r operator has submitted an NPDES permit application or a Notice of Intent as of [the effective date of promulgation] but has not received coverage, the date the owner or operator submitted the NPDES permit application or Notice of Intent; (iv) For the pr evious 12

- month period, identification of each animal ty pe confined either in open confinement including partiall y covered areas, or housed totally under roof at theCAFO for 45 day s or more, and the maximum number of each animal t ype confined at

the CAFO for 45 day s 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 ce rtified mail, or electronically , through the Agency ’s electronic information management s ys tem 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 surve y form that an electronic submission waiver applies and provide justification as to why electronic submission would cause an undue burden or expense. (4) Deadline for submission s 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 day s] after EPA makes available a list of CAFOs for which a state has pro vided 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 b y paragraph (k)(2) of this section in ac cordance with paragraph (k)(5) of this section, may, but are not required to, provide information to EPA [within 90 day s] after EPA makes available a list of CAFOs for which a state has provided the information. (iii) Resubmission requirement for CAFO s 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 ye ars 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 h ad 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 ten

- ye ar resubmission requirement. (5) Elements of state v oluntary s ubmissions. Inorder 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 sy stem to submit the information. (ii) Submit informati on 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 day s 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 provide d 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 priorit y watershed due to other factors such as vulnerable ecosy stems, drinking water source supplies, watersheds with high recreational value, or watersheds that are outstanding natural resource waters (Tier 3 waters); (B) Vulnerable soil ty

pe; (C) High density

of animal agriculture; and/or (D) Other relevant information ; an d (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) 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] day s. (i i ) Provide notice to the CAFOs of the need to submit information and the timing for
s uch request b y notice in the Federal Register and other appropriate means in the focus watershed. ( 4 ) Information to be submitted to the Administrator . Th e owner or operator of a CAFO located in a focus watershed identified by EPA as provided in paragr aph (k)(2) of this section must provide the following information to the Administrator , if so notified in accordance with paragraph (k)(3) : (i) The legal name of the owner of the CAFO or an authorized representative , and the ir mailing address, email 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
reason able 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 promulgation], 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 Noticeo f Intent as of [the effective date of promulgation] 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 ty pe confined either in open confinement including partiall y covered areas, or housed totally under roof at the CAFO for 45 day s or more, and the maximum number of each animal t ype confined at the CAFO for 45 day s or more; and (v) Where the owner or operator land appli es 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 focu s 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 sy stem 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

electronic submission would cause an undue burden or expense. ( 6 ) Deadline for submission s 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 9 0 day s] after EPA notifies CAFOs of such obligation in

accordance with paragraph (k)(3)
.