1

**MEMORA NDUM** 
TO: Public Record for the NPDES Electronic Reporting Rule

EPA Docket Number EPA

- HQ

- OECA

- 2009

- 0274 (www.regulations.gov)
FROM: Carey

A. Johnston, P.E. USEPA/OECA/OC ph: (202) 566 1014 johnston.carey @epa.gov
DATE: 1 4 September 2015
SUBJECT: Description of EPA’s Enforcement and Compliance History O nline (ECHO) W ebsite [DCN 0 201 ]
The NPDES Electronic Reporting Rule changes the mode of transmission of NPDES information that regulated entities are already required to report to authorized NPDES programs or EPA under existing regulations . It does not address or affect EPA’s processes for managing this data and making information available to the public. Comments regarding EPA’s practices for making NPDES information publicly available or what data may be posted online subsequent to this rulemaking are therefore outside the scope of this rule. Concerns with EPA’s public access procedures and existing Enforcement and Compliance History Onlin e ( ECHO ) website should be raised to the agency in a separate proceeding so that they can be addressed apart from this narrow rulemaking. EPA has the discretion to address how it will display NPDES information in a separate proceeding later in time, rather than determining whether and how ECHO should be changed as part of this rulemaking. This rule is a reasonable step in EPA’s NPDES program administration , even if another step may

be considered in the future. The U.S. Court of Appeals for the D.C. Circuit has held that “agencies have great discretion to treat a problem partially .” City of Las Vegas v. Lujan , 891 F.2d 927 (D.C. Cir. 1989) (“we [sh]ould not strike down [a regulation] if it [is] a first step toward a complete solution.”). However, because EPA received may comments about its ECHO website, some of which reflected misconceptions about how ECHO works and how it might change in the future, EPA has provided this informational essay regarding existing practices regarding public access to NPDES information under the Clean Water Act. 1. Background on ECHO EPA’s ECHO website dates back to 2002 . ECHO currentl y provides online access to compliance monitoring and enforcement data for approximately 800,000 regulated facilities acro ss the United States. The information is pulled from a variety of federal databases and provide s integrated compilation of federal and authorized program environmental inspections, violation determinations, enforcement actions, and other environmental records collected2

pursuant to the Clean Water Act, Clean Air Act, and the Resource Conservation and Recovery Act. ECHO can be accessed at https://echo.epa.gov/

. ECHO currently

display s NPDES information for facilities that are already reporting electronically

or whose data is being shared electronically with EPA by authorized state programs. EPA’s ECHO website and the NPDES Electronic Reporting Rule reflect this Administration’s longstanding commitment to releasing an d leveraging data in support of enhanced transparency

and accountability, improved government servic es, and a stronger econom y. President Obama’s Open Data Policy and Executive Order, “Making Open and Machine Readable the New Default for Government Information” (9 May 2014), encourage agencies to make newl y generated or acquired government data freely av ailable in open, machine

- readable formats. See DCN 0068

. 2. Public Participation I s An Important Goal Under The Clean Water Act The Clean Water Act has a number of provisions emphasizing the importance of public access to and engagement with the NPDES program. Communities have an interest in understanding activities in their area that may be contributing to water pollution and how local facilities are performing. As the U.S. Court of Appeals for the Second Circuit stated in Waterkeeper Alliance v. EPA , “Congress clearl y i ntended to guarantee the public a meaningful role in the implementation of the Clean Water Act.” 399 F.3d 486, 503 (2d Cir. 2005). The Clean Water Act “unequivocally and broadl y declares” in its “Congression al declaration of goals and policy” that “Public participation in the . . . enforcement of any regulation, standard, effluent limitation, plan, or program established b y the Administrator or any State under this chapter shall be provided for, encouraged, and assisted b y the Administrator and the States.” Waterkeeper , 399 F.3d at 503; CWA 101(e). As the Supreme Court noted in Costle v. Pacific Legal Foundation , “ Passages in the FWPCA's legislative history indicate that this general policy of encouraging publ ic participation is applicable to the administration of the NPDES permit program. ” 445 U.S. 198, 216 (1980) (“ The Report of the Committee on Public Works accompan yi ng the Senate bill emphasized that an essential element of the NPDES program is public parti cipation, and that ‘ [the] public must have a genuine opportunity to speak on the issue of protection of its waters. ’”) (citing S. Rep. No. 92

- 414, p. 72 (1971) )

. CWA section 304(i) , which directs EPA to establish minimum procedural requirements for authorized NPDES programs, also directs EPA to establish reporting requirements “ including procedures to make information available to the public .” Finally , the CWA envisioned an important role for citizen suits in section 505(a), providing that “any citiz en” may bring a civil suit for violations of the Act. The Clean Water Act’s public participation goals are reflected in EPA’s regulations. EPA’s permitting regulations require public notice, a public comment period, and the opportunity

for a public hearin g for permit actions beyond minor modifications. 40 CFR 124.10, 124.11. These regulatory requirements are applicable to authorized state programs. 40 CFR 123.25. Failure to comply with public participation requirements is also among the criteria for3

withdrawal of state programs. 40 CFR 123.63. EPA’s information sharing requirements specify that “If EPA obtains from a State information that is not claimed to be confidential, EPA may make that information available to the public without further notice.” 40 CF R 123.41(a). EPA’s regulations also require that authorized state programs “provide for public enforcement in the State enforcement process.” 40 CFR 123.27(d). 3. The CWA R equires M andatory D isclosure O f NPDES Information . This Information Is Already Available on ECHO

. As explained above, ECHO has been available since 2002 , well before EPA promulgated this rule. ECHO display s NPDES information that is public pursuant to existing legal requirements. ECHO provides facility information such as permit number, facility name, permit ty pe, ind ustrial category , location , inspection and enforcement history , and local environmental conditions and demographics

. As described below, the Clean Water Act specificall y directs that broad categories of NPDES information must be made available to the public

. First, i nformation that NPDES permitted facilities submit on their permit applications is required to be publicl y available . CWA section 402(j) requires that “[a] copy of each [NP DES] permit application and each [NPDES] permit

. . . be available to the public. Such permit application or permit, or portion thereof, shall further be available on request for the purpose of reproduction.” 33 U

. S

. C

. 1342(j). Section 402(j) applies to al l NPDES permit applications. ECHO is consistent with EPA’s statutory obligations because it provides a facility ’s permit application and permit information to the public. In addition, CWA section 402 (b) requires that states, tribes, and territories implementing NPDES programs provide for “public

. . . notice of each application for a permit and provide an opportunity for public hearing before a ruling on each such application.” 33 U

. S

. C

. 1342(a)(1), (b)( 3). EPA’s existing regulations implement section 402 and specif

y what information regulated entities must provide in their permit applications. 40 CFR 122.21(f)

. Second, CWA section 308(b) , which governs monitoring, reporting, and inspections, specifies that all information collected under that provision shall be made available to the public unless entitled to protection as a trade secret. 33 U.S.C. 1318(b)

. Inparticular, effluent data is required to be made available to the public without any exceptions for privacy . Effluent data is defined in EPA’s existing regulations at 40 C.F.R 2.302. ECHO implements section 308(b) b y making effluent data publicly available today

. In the Clean Water Act, Congress determined that the value of public access to certain NPDES information outweighed any potential privacy interests. As a result, all of the categories of information identified in the final rule (Appendix A to 40 CFR 127) are a lready publicl y available today

and already

required to be submitted to authorized NPDES programs and EPA under existing regulations. One commenter cites Campaign for Family Farms v. Glickman , 200 F.3d 1180 (8th Cir. 2000) to support the assertion of a privacy interest in NPDES information

. As explained above, EPA’s practices for making NPDES information publicly available or what data may be posted online subsequent to this rulemaking are therefore outside the scope of the NPDES Electronic4

Reporting Rule. Furthermore, this case is distinguish able from the NPDES facility information found i n ECHO

. The Glickman case pertains to secret ballot on a controversial issue and a petition to the U.S. Department of Agriculture. The court found that disclosing the petition would reveal the individuals’ position ( i.e. , the ir secret ballot vote) on the controversial issue. Thus, the court found the privacy interest implicated by

a secret ballot, not any

privacy interest in the petitioners’ names, addresses, or other farm information. Also , unlike the petition signatures at iss ue in Glickman , CAFO NPDES data permit application information, effluent data , and enforcement history that are available on ECHO are public by operation of the Clean Water Act, as explained above.

4. ECHO Does Not Implicate The Privacy Act EPA received comments claiming that ECHO is “a group of records . . . from which information is retrieved by the name of the individual” and a “s ys tem of records” under the Privacy Act . The commenters stated that EPA needed to follow Privacy Act procedures prior to collecting the personal information of farmers. ECHO , however, is not a data collection sy stem of records . The website draws from various data resources across EPA that are not affected by this rule, such as the Federal Registry Service, aggregat es that information, and provides the ability to search it on certain, limited fields . EPA disagrees that a Privacy Act sy stem of records notice is required for ECHO. The Privacy

Act does not apply

to ECHO for two basic reasons. First, the Privacy Act onl y applies to the records of individuals, which is defined narrowl y in the Act as “citizens of the United States or aliens lawfully admitted for permanent residence.” 5 U.S.C. 552a(a)(2) ; compare with Section 552(a)(3) (FOIA reference to “any person”) . Base d on this narrow definition of individual, the Privacy Act does not apply

to an agency ’s handling of facility records that are limited to information pertaining to an entrepreneurial capacity

. See Office of Management and Budget’s Privacy Act Guidelines, 4 0 Fed. Reg. 28,948, 28,951 (July 9, 1975) (quoting legislative history and stating that it “suggests that a distinction can be made between individuals acting in a personal capacity and individuals acting in an entrepreneurial capacity ( for example, , as so le proprietors) and that th[e] definition [of ‘individual’] (and, therefore, the Act) was intended to embrace onl y the former”) ; Dresser Indus. v. United States , 596 F.2d 1231 (5th Cir. 1979) ; St. Michael’s Convalescent Hosp. v. State of Cal. , 643 F.2d 136 9 (9th Cir. 1981); SAE Productions, Inv. v. FBI , 589 F. Supp. 2d 76, 83 (D.D.C. 2008) (“[I ]t is equally established that corporations and other organizations do not generall y have an y Privacy Act rights.”). There is no personally

identifiable information collected in the Federal Registry Service sy stem with the exception of name and associated business

- related information. If a farmer’s data such as name and address are in the sy stem, it would be in an entrepreneurial capacity and therefore would not be covered b y the Privacy Act. One c ommenter , the National Pork Producers Council, points to a district court case for the proposition that the protections conferred by the Privacy Act are not diminished simply bec ause the information pertains to individuals acting in an entrepreneurial capacity

. Scarborough v. Harvey , 493 F. Supp. 2d 1 (D.D.C. 2007). Scarborough , h owever, dealt with descriptive Criminal Alert Notices created by the Department of Defense . In contras t, ECHO shares permit information and effluent data submitted by regulated parties that the Clean Water Act already requires to be made available to the public as5

described in above

. ECHO does not currently display individual s’ names or phone numbers though it provides links to FRS which has additional information

. Furthermore, in Scarborough , the court ruled on several motions but did not resolve the Privacy Act claims

. Second, in order for ECHO to qualify as a “s ys tem of records” under the Privacy Act, it must retrieve records b y an individual’s name or other personal identifier. Henke v. U.S. Dept. of Commerce , 83 F.3d 1453, 1460 (D.C. Cir. 1996); see Doe v. Dep’t of Veterans Affairs , 519 F.3d 456, 461 (8th Cir. 2008); 5 U.S.C. 552a (a) (5). The searchable fields on ECHO are the NPDES permit number, permit status, permit ty pe, industrial category , permit facility name, location address, primary

permit code and description, latitude and longitude coordinates, and component ty pe description. Se e https://echo.epa.gov/facilities/facility

- search . An y personal name that is searchable in ECHO data sy stems is incidental as a result of the owner choosing to include his or her personal name in the facility name. 5. EPA Discretion Regarding ECHO As a separate matter apart from this rulemaking, EPA has agreed to mask on ECHO facility

- specific information for unpermitted CAFOs that are not in violation of the Clean Water Act in response to particu lar privacy concerns that have been raised regarding operators living in close proximity

to these facilities. EPA worked with USDA and OMB on this approach

. 6. Questions About How ECHO Works Several commenters asked questions about how ECHO works today . While these comments are outside the scope of this rulemaking as described above, EPA is providing additional details about ECHO because it wants this existing public access website to be a useful and reliable resource.
ECHO ’s CWA data is updated with the late st available facility data from EPA’s national NPDES data sy stem (the Integrated Compliance Information Sy stem

-NPDES ) on a weekl y schedule. T he Integrated Compliance Information Sy stem

-NPDES contains NPDES information that authorized NPDES programs and fac ilities in direct implementation states share with EPA. EPA has a robust error reporting and correction s ystem along with robust quality control measures to ensure the accuracy of NPDES program data. EPA works hard to eliminate errors and the potential for inaccuratel y identifying noncompliance on ECHO ( for example , EPA and states regularl y review effluent violations.) EPA has an accountable method, the Integrated Error Correction Process, for any user of ECHO or any

other EPA website, to report potential d ata errors. This error reporting s ys tem logs and tracks these error correction requests and routes these requests to the appropriate EPA and state water data steward. These data stewards investigate these error correction requests and fix the errors in the Integrated C ompliance Information S ys tem

- NPDES. These data corrections are then brought into ECHO at the next weekl y data re

- fresh. EPA, as well as numerous state and local government agencies, are involved in preparing and maintaining the facility

- level enforcement and compliance data found on ECHO. These agencies are committed to providing the public with the highest possible quality of information related to each facility ’s compliance record.6

After giving states a considerable amount of time to review a nd correct an y facility data errors , EPA freezes data as part of its State Review Framework. These data freezes allow EPA to chart trends from year to year against a number of metrics that gauge the effectiveness of authorized NPDES programs. As a matter of good practice, EPA works with stakeholders during the development and testing of new features for ECHO . EPA provides states with an opportunity to provide input on new ECHO updates and enhancements to ensure that ECHO users have the prop er f acility data with the proper context for meaningful and accurate interpretations. This testing and user feedback helps accurately present the data in ways that can be meaningful understood by the public and reduces the potential for “software glitches.” EC HO currentl y differentiat es between Discharge Monitoring Report data with and without permit effluent limits so that DMR information can be accurately interpreted b y the public. This allows ECHO users to identify and assess pollutant discharges from facili ties and whether these pollutant discharges have effluent limits. Some commenters expressed concern about the potential for data on ECHO to be misused. Speculation about illegal actions b y third parties is not a reason for EPA never to present information electronically

. 7. Confidential Business Information (CBI) EPA’s Confidential Business Information (CBI) regulations are outside the scope of the NPDES Electronic Reporting Rule and remain unchanged. None of the information that is made publicly available on ECHO is CBI. Under existing regulations and consistent with Clean Water Act section 308 , the information required b y an NPDES application form may not be claimed as confidential. Pursuant to the applicable regulations, “[c]laims of confidentiality . . . wi ll be denied” for “(1) The name and address of any permit applicant or permittee” or “(2) Permit applications, permits, and effluent data”; and “[i]nformation required by NPDES application forms provided b y the Director under §122.21 may not be claimed con fidential. This includes information submitted on the forms themselves and any attachments used to supply infor mation required b y the forms.” 40 CFR 122.7(b)

- (c); see also 40 CFR 123.25 (applicability to state programs). Clean Water Act section 308(b) does not allow effluent data to be withheld from disclosure as CBI. EPA’s Clean Water Act CBI regulation defines “effluent data” as “A general description of the location and/or nature of the source to the extent necessary to identify

the source and to distinguish it from other sources...” 40 CFR 2.302(a)(2)(C). Regarding CAFO Annual Program Reports, EPA explained how it will handle CBI claims for such data in its 2003 CAFO rulemaking :

EPA expects that the permitting authority will make this information available to the public upon request. This should foster public confidence that CAFOs are compl yi ng with the requirements of the rule. In particular, the information in the annual report will confirm that CAFOs have obtained coverage under an NPDES permit, are appropriatel y controlling discharges from the production area, and have developed and are7 implementing a nutrient management plan.

. . . Under the existing regulations at 40 CFR part 2, subpart B, a facility may make a claim of confidentiality

for information it must submit and EPA must evaluate this claim if it receives a request for the information from the public . .

. . Claims of confidentiality with respect to information submitted to the State will be processed and evaluated under State regulations.
See 6 0 F ed. R eg. 7176, 7233 (Feb. 12, 2003)

. 8. Critical Infrastructure Security Information Under the National Defense Authorization Act of 2012 , the Secretary of Defense may exempt Department of Defense

- designated “critical infrastructure security information” from disclosure under FOIA. 10 U

. S

. C

. Section 130e

. The Department of Defense will make a case

by

- case determination of whether a particular facility is designated as critical infrastructure in response to a FOIA request. NPDES information designated as critical infrastructure security information in response to a FOIA request will be withheld from the public. In the instance where an NPDES program data element for a particular facility is designated as critical infrastructure security

information under thi s process , a separate , filtered set of data without the protected information will be shared with the public on ECHO

. Comments regarding critical infrastructure under Homeland Security Presidential Directive 9 were addressed in I ssue Code 6.i.ii because it was not clear whether those comments concerned the electronic transmittal of data to EPA (within the scope of the rule) or the posting of that data on ECHO (outside the scope of the rule). Comments regarding privacy considerations under the Paperwork Re duction Act were addressed at Issue Code 6.i for the same reason. 9. Comments From Other Sectors While many

comments regarding ECHO came from the CAFO sector, one commenter questioned the need for public access to stormwater information. Again, what information EPA presents in ECHO is outside the scope of this rule. The reason EPA currently provid e s the public with site

- specific stormwater information it that it gives meaningful insights on the measures being employed to control stormwater. This info rmation can be used by public citizens concerned about water quality in their area, drinking water treatment professionals that are assessing their source water protection areas, and local, state, and Federal government professions that are estimating potential impacts to surface waters from industrial and construction stormwater.
10. Commenters Seeking Improved And Expanded Public Access While some commenters raised concerns with EPA’s current ECHO website, other commenters praised ECHO and lauded the importance of public access to NPDES information for communities. The New York Rural Water Association (NYRWA) asked how EPA intends to8

educate the general public on where to find the electronicall y reported data. NYRWA specificall y recommended using social media to educate the public about the availability of NPDES data . Washington State Department of Ecology recommends that to improve public accessibility , EPA consider sending an announcement out to national business organizations and national organizations of l ocal governments. Another commenter pointed out that not all communities have access to the Internet and some rely on their print newspaper for information about their violations causing environmental or health impacts. These c omments regarding how data m ay make NPDES data available to the public after the promulgation of the electronic reporting rule are outside the scope of this rulemaking as explained above. EPA may consider changes to or outreach about ECHO in the future . EPA notes that newspapers can avail themselves of this information to more broadly disseminate information on CWA violations and environmental or health impacts to communities that do not have access to the Internet.