National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule, 65431-65458 [2011-27189]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 204 (Friday, October 21, 2011)]
[Proposed Rules]
[Pages 65431-65458]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27189]



[[Page 65431]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9 and 122

[EPA-HQ-OW-2011-0188; FRL-9481-7]
RIN 2040-AF22


National Pollutant Discharge Elimination System (NPDES) 
Concentrated Animal Feeding Operation (CAFO) Reporting Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA co-proposes two options for obtaining basic information 
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 section 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 fall within areas that have been identified 
as having water quality concerns likely associated with CAFOs (focus 
watersheds). However, EPA would make every reasonable effort to assess 
the utility of existing publicly available data and programs to obtain 
identifying 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 three alternative approaches to gather information about CAFOs, 
which could be used to achieve the objectives of this proposed action 
in protecting water quality.

DATES: Comments on this proposed action must be received on or before 
December 20, 2011. EPA plans to hold two Webinars in November, 2011 to 
provide an overview of, and answer questions about, the proposed rule 
requirements.

ADDRESSES: Comments: Submit your comments, identified by Docket ID No. 
EPA-HQ-OW-2011-0188, by one of the following methods:
     https://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: 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. In addition, 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., 
Washington, 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 operation, 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 be made available online at 
https://www.regulations.gov, including any 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 you 
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, 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 comment directly to EPA without 
going through https://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 any 
disk or CD-ROM you submit. If 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, any form of encryption, and be 
free of any defects or viruses. For additional information about EPA's 
public docket visit the EPA Docket Center homepage at https://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 https://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 by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the Water Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 
20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding Federal holidays. 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 Webinars in November, 2011 to 
provide an overview of, and answer questions about, the proposed rule 
requirements. Information about how to register and access the Webinar 
can be found on EPA's Web site at https://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 
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 
564-6418; fax number (202) 564-6384; e-mail address: 
mitschele.becky@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my 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 Report
    E. Litigation Regarding the 2008 Revised NPDES Permit Regulation 
and Effluent Limitations Guidelines for CAFOs in Response to the 
Waterkeeper Decision

[[Page 65432]]

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 and 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 identify a focus watershed?
    2. Considerations When Determining Whether a Focus Watershed 
Meets the Criteria for Water Quality Protection
    3. How would EPA identify CAFOs from which additional 
information is needed?
    4. What information would EPA require as part of an information 
gathering survey for CAFOs in a focus watershed?
    5. How would EPA geographically define a focus watershed?
    6. How would EPA inform CAFOs of their responsibility if they 
were required to respond to an information request?
    7. When would CAFOs in a focus watershed be required to submit 
the information 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 Collect Information From 
CAFOs if a State Does Not Report
IV. Impact Analysis
    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 Act
    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 Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. Does this action apply to me?

    This proposed rulemaking would apply to concentrated animal feeding 
operations (CAFOs) as defined in the National Pollutant Discharge 
Elimination System (NPDES) regulations at 40 CFR 122.23(b)(2), pursuant 
to section 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)) by the NPDES permitting 
authority or by EPA. The following table provides the size thresholds 
for Large, Medium and Small CAFOs in each animal sector.

                            Table 1--Summary of CAFO Size Thresholds for All Sectors
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               Sector                        Large                Medium \1\                 Small \2\
----------------------------------------------------------------------------------------------------------------
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         10,000 or more.......  3,000-9,999..........  Less than 3,000.
 pounds).
Horses.............................  500 or more..........  150-499..............  Less than 150.
Sheep or lambs.....................  10,000 or more.......  3,000-9,999..........  Less than 3,000.
Turkeys............................  55,000 or more.......  16,500-54,999........  Less than 16,500.
Laying hens or broilers (liquid      30,000 or more.......  9,000-29,999.........  Less than 9,000.
 manure handling system).
Chickens other than laying hens      125,000 or more......  37,500-124,999.......  Less than 37,500.
 (other than a liquid manure
 handling system).
Laying hens (other than a liquid     82,000 or more.......  25,000-81,999........  Less than 25,000.
 manure handling system).
Ducks ( other than a liquid manure   30,000 or more.......  10,000-29,999........  Less than 10,000.
 handling system).
Ducks (liquid manure handling        5,000 or more........  1,500-4,999..........  Less than 1,500.
 system).
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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 States which pass over, across, or through 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).

     That table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
proposed rulemaking. The table lists the types of entities that EPA is 
currently aware of that could be regulated by this action. Other types 
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 submit information.
    To determine whether your 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.

[[Page 65433]]

B. What should I consider as I prepare my comments for EPA?

1. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify 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 
specific 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 any assumptions and provide any 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 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.
2. Submitting Comments to EPA
    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 be made available online at https://www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. The https://www.regulations.gov Web site is an 
``anonymous access'' system, 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 comment directly to EPA without 
going through https://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 any 
disk or CD-ROM you submit. If 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, any form of encryption, and be 
free of any defects or viruses. For additional information about EPA's 
public docket, visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.
3. Submitting Confidential Business Information
    Do not submit CBI information to EPA through https://www.regulations.gov or e-mail. Clearly 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 then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy 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 not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.

C. Under what legal authority is this 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 Water Act

    Congress passed the Federal Water Pollution Control Act Amendments 
of 1972, (``Clean Water Act'' or ``CWA'') to ``restore and maintain the 
chemical, physical, and biological integrity of the nation's waters'' 
33 U.S.C. 1251(a). Section 301(a) of the CWA prohibits the ``discharge 
of any pollutant by any 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 System (NPDES) permit program 
to authorize and regulate 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 ``any 
discernible, confined and discrete conveyance, including but not 
limited to any * * * concentrated animal feeding operation * * * from 
which pollutants are or may be discharged * * *'' 33 U.S.C. 1362(14). 
Section 501 authorizes the Administrator to promulgate rules to carry 
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 any point source'' for the following 
purpose:

To carry out the objectives of [the CWA], including but not limited 
to (1) developing or assisting in the development of any 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 any such 
effluent limitation, or other limitation, prohibition or effluent 
standard, pretreatment standard, or standard of performance; (3) any 
requirement established under [Sec.  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 reasonably require to carry out the 
objectives of the Act. 33 U.S.C. 1318(a). Section 309 of the CWA 
authorizes EPA to assess penalties for violations of section 308 of the 
CWA. 33 U.S.C. 1319.

B. Environmental and Human Health Impacts of CAFOs

    Despite more than 35 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 300 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 by humans in the United States. 
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

[[Page 65434]]

potassium), pathogens, heavy metals, and smaller amounts of other 
elements 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.
    To 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 ecosystem health through reductions in waterborne disease organisms 
and chemicals. More than 40 diseases found in manure can be transferred 
to humans, including causative 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 Health Perspectives 310 (2007).
    Heavy 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, Risk Assessment Evaluation for Concentrated Animal 
Feeding Operations, EPA-600-R-04-042 (2004); and U.S. EPA, Development 
Document for the Final Revisions to the National Pollutant Discharge 
Elimination System Regulation and the Effluent Guidelines for 
Concentrated Animal Feeding Operation, EPA-821-R-032-001 (2002). EPA 
reported approximately 80 to 90 percent of the copper, zinc, and 
arsenic consumed is excreted. Possible adverse effects reported in the 
literature include the risk of phytotoxicity, groundwater contamination 
and deposition in river sediment that may eventually release to pollute 
the water. U.S. EPA, Risk Assessment Evaluation for Concentrated Animal 
Feeding Operations, 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 established in EPA regulations at 
40 CFR part 503, thereby potentially impacting human health and the 
environment. U.S. EPA, Preliminary Data Summary Feedlots Point Source 
Category Study, EPA-821-R-99-002 (1999), pp. 26-27. The health hazards 
that may result from chronic exposure to heavy metals at certain 
concentrations can include kidney problems from cadmium, Public Health 
Statement Cadmium (CAS 7440-43-9), available at https://www.atsdr.cdc.gov/PHS/PHS.asp?id=46&tid=15; nervous system disorders, 
and neurodevelopmental problems (IQ deficits) from lead, Lead and 
Compounds (inorganic) (CASRN 7439-92-1), available at https://www.epa.gov/iris/subst/0277.htm; and cardiovascular effects, diabetes, 
respiratory effects, nervous system problems, and reproductive effects 
and cancers from multiple tissues from arsenic, NRC Arsenic in Drinking 
Water, National Academy Press (2001), available at https://www.nap.edu/openbook/0309076293/html/R1.html.
    To promote growth and to control the spread of disease, 
antibiotics, growth hormones and other pharmaceutical agents are often 
added to feed rations or water, directly injected into 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 million pounds. U.S. Food 
and Drug Administration, 2009 Summary Report on Antimicrobials Sold or 
Distributed for Use in Food-producing Animals (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. Congress, Office 
of Technology Assessment, Impacts of Antibiotic-Resistant Bacteria, 
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. Scott Bradford et al., Reuse of Concentrated Animal 
Feeding Operation Wastewater on Agricultural Lands, 37 J. Env't Quality 
97 (2008). Synthetic 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 in pathogens, increasing the severity 
of disease and limiting treatment options for sickened individuals. 
U.S. EPA, Detecting and Mitigating the Environmental Impact of Fecal 
Pathogens Originating from Confined Animal Feeding Operations: 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. U.S. EPA, National Water Quality Inventory: 
Report to Congress--2004 Reporting Cycle, January 2009. EPA-841-R-08-
001. The findings of this report are corroborated by numerous reports 
and studies conducted by government and independent researchers that 
identify the animal livestock industry as an important contributor of 
surface water pollution. 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 linked 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 ways 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 congressional requesters, recommending 
that EPA ``should complete the Agency's effort to develop a national 
inventory of

[[Page 65435]]

permitted CAFOs and incorporate appropriate internal controls to ensure 
the quality of the data.'' U.S. Gov't Accountability Office, 
Concentrated Animal Feeding Operations--EPA Needs More Information and 
a Clearly Defined Strategy to Protect Air and Water Quality, 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 type of operation, it is difficult 
to estimate the actual discharges occurring and to assess the extent to 
which CAFOs may be contributing to water pollution.'', Id. page 31. The 
report also stated that ``despite its long-term regulation of CAFOs, * 
* * EPA has neither the information it needs to assess the extent to 
which CAFOs may be contributing to water pollution, nor the information 
it needs to ensure compliance with the Clean Water Act.'' 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 Regional 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-year 
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 currently 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 CAFOs. Id. 
page 76.

D. United States Office of Management and Budget Report

    More recently, 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. 
U.S. Office of Management and Budget, 2011 Report to Congress on the 
Benefits and Costs of Federal Regulations and Unfunded Mandates on 
State, Local, and Tribal 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 
social science.'' Id. page 5. Specifically, the report briefly outlines 
steps and best practices that are consistent with OMB's recent 
recommendations for ``flexible, empirically informed approaches; 
increased openness about costs and benefits; and the use of disclosure 
as a regulatory tool.'' Id. page 5. EPA believes that today's co-
proposed rulemaking would be consistent with OMB's recommendations by 
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 Regarding the 2008 Revised NPDES Permit Regulation and 
Effluent Limitations Guidelines for CAFOs in Response to the 
Waterkeeper 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. In February 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 Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 
(2d Cir. 2005). Among other things, the court held that EPA does not 
have authority under the CWA to require CAFOs that have only 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. Subsequently, 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 section 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 section 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 agreed 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 comment 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:
    1. Name and address of the owner and operator;
    2. If contract operation, name and address of the integrator;
    3. Location (longitude and latitude) of the operation;
    4. Type of facility;
    5. Number and type(s) of animals;
    6. Type and capacity of manure storage;
    7. Quantity of manure, process wastewater, and litter generated 
annually by the CAFO;
    8. Whether the CAFO land-applies;
    9. Available acreage for land application;
    10. If the CAFO land-applies, whether it implements a nutrient 
management plan for land application;
    11. If the CAFO land-applies, whether it employs nutrient 
management practices and keeps records on site consistent with 40 CFR 
122.23(e);
    12. If the CAFO does not land apply, alternative uses of manure, 
litter and/or wastewater;
    13. Whether the CAFO transfers manure off site, and if so, quantity 
transferred to recipient(s) of transferred manure; and

[[Page 65436]]

    14. 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 (5th 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 section 
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. In particular, EPA is authorized under section 308 to collect 
information from any point source, and point sources are defined to 
include ``any discernible, confined and discrete conveyance, including 
* * * any * * * 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 ``duty 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 only 
those CAFOs that discharge is limited to the specific type of 
regulation at issue before the court: the duty to apply 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 section 308 to collect information. This information-
gathering authority is broader than EPA's authority to require permit 
coverage, 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 ``any discernible, confined, and 
discrete conveyance, including * * * any * * * concentrated animal 
feeding operation * * * from which pollutants are or may be discharged 
* * *''). The plain language of section 308 expressly authorizes 
information collection for a list of purposes including assistance in 
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 CAFOs and would enable EPA, states, 
and others to determine the number of CAFOs in the United States and 
where they are located 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-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, 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 States. 
Facility location and basic operational characteristics that relate to 
how and why a facility may discharge is essential information needed to 
carry out NPDES programmatic functions, which include the following:
     Evaluating NPDES program effectiveness;
     Identifying and permitting CAFOs that discharge;
     Conducting education and outreach to promote best 
management practices;
     Determining potential 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.
    The six categories listed above represent key activities necessary 
to ensure that CAFOs are meeting their obligations under the CWA 
regarding protection of water quality from CAFO discharges and can be 
carried out most efficiently and effectively when EPA and 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 apply to all CAFOs; Option 2 (Section D) would identify focus 
watersheds where CAFO discharges may be causing water quality concerns 
and EPA could use its section 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 determining whether requiring CAFOs to provide the 
information is necessary. Both of these options propose revisions to 
the NPDES regulations, which 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 
type of animals, and number of acres available for land application. 
Section F. Alternative Approaches to Achieve Rule Objectives discusses 
alternative approaches to a regulatory information request for CAFOs 
that may achieve similar outcomes (i.e., ensuring that CAFOs are 
complying with their obligations under the CWA).

B. CWA Section 308 Data Collection and EPA's Approach Toward Collecting 
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 collect information from large groups of point sources when 
developing and reviewing ELGs. An ELG survey typically will request 
industrial sources to provide information such as the type 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 such 
additional controls. As an

[[Page 65437]]

example, when reviewing the ELGs applicable to the steam electric 
industry, EPA determined that the data available at that time did not 
include all wastewater streams generated by 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 types 
and performance 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.
    There is precedent for EPA using its section 308 authority to 
collect information from entities not currently required to obtain 
NPDES permits. Recently, EPA conducted surveys 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 regulated Municipal Separate Storm 
Sewer System (MS4s), non-regulated MS4s, transportation MS4s, NPDES 
permitting authorities, and owners and operators of developed sites.
    EPA can use a variety 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 not know the names and addresses of all 
CAFOs, mailing surveys 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 
locally-applicable notice in the Federal Register along with other 
forms of local outreach. In the Federal Register, EPA also would 
include the description of the focus watershed and the reasons for its 
selection. To implement the rule effectively, EPA intends to conduct 
extensive outreach to the CAFO industry to ensure that all CAFOs know 
of the existence of this rule and any requirement to respond. 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 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. Moreover, allowing the states to submit the information 
required by 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 burden 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 (DC 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 Would Apply 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?
    Proposed paragraph Sec.  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:
    (i) The legal name of the owner of the CAFO or an authorized 
representative, their mailing address, e-mail 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 final 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 final rule] 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 type confined either in open confinement including partially 
covered area, or housed totally under roof at the CAFO for 45 days or 
more, and the maximum number of each animal type confined at the CAFO 
for 45 days 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.
    Proposed paragraph Sec.  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 either 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 
to respond to inquiries from EPA on behalf of the CAFO. For example, an 
employee 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 information, including name, 
telephone number, e-mail (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. 122.22 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

[[Page 65438]]

if desired. With this information, EPA would be able to communicate 
directly 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.
    In addition to providing contact information, proposed paragraph 
Sec.  122.23(k)(2)(ii) would require CAFOs to provide the location of 
the CAFO's production area in either latitude and longitude or by 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 CAFO's production area, as specified 
in proposed paragraph Sec.  122.23(k)(2)(ii), is essential for 
determining sources of water quality impairments and potential 
mitigation measures. A CAFO's proximity to waterbodies also is relevant 
to whether it may cause water quality impacts. Comprehensive 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 quality.
    Information related to a CAFO's permit status (proposed paragraph 
Sec.  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 by a permit, knowing about the existence of 
these facilities gives EPA a basis for understanding how many 
facilities within each sector are actually able to completely prevent 
discharges. This information might be transferable to other facilities 
in that sector that currently discharge. EPA or states would be able to 
provide technical assistance, extend compliance assistance, or inspect 
such CAFOs where appropriate.
    EPA proposes (as specified in proposed paragraph Sec.  
122.23(k)(2)(iv)) to collect data on the number and type (cattle, 
poultry, swine, etc.) of animals because the scale of the operation and 
the types of animals confined relate to the type and volume of manure 
generated and related environmental considerations, and also determine 
applicable CWA permitting requirements. Specifically, the number and 
type of animals provides an indication of the quantity and 
characteristics 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 Sec.  
122.23(k)(2)(v)). A CAFO's available land application area is likely to 
affect the amount of manure that can be land applied for agronomic 
purposes and the potential amount of nutrients that could flow into 
surrounding waters of the United States. Combining information about 
manure quantity and characteristics with land available for application 
would indicate where issues might exist regarding excess manure.
    Section 308(b)(1) of the CWA requires that information collected by 
the Agency shall be available to the public, except upon a satisfactory 
showing to the Administrator that any part of 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 satisfactorily shown that disclosure of the information is 
likely to cause 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 Sec.  2.203(c). EPA would follow all the requirements related to 
information submitted with a claim of confidentiality including the 
required notification to the submitter and rights of appeal available 
before releasing any information claimed to be confidential. EPA seeks 
comment on whether any information required by this proposed rule could 
reasonably 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 by proposed paragraph Sec.  
122.23(k)(2). Specifically, EPA is aware that providing latitude and 
longitude information might raise security or privacy concerns for CAFO 
owner/operators, many of whom are family farmers. EPA seeks comment on 
alternatives to submission of the latitude and longitude that would 
provide general information on a facility's location but not specific 
coordinates. For example, the survey could request the name of the 
nearest waterbody to the 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 systems such 
as the Public Land Survey System (PLSS) (i.e. township, range and 
county 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 county 
where located, or some other general 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 (discussed above). EPA also seeks comment on how this 
type 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 type 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, rather 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 CAFO 
(i.e. fiscal year 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

[[Page 65439]]

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 information. This is required by section 308 of 
the CWA. However, neither the settlement agreement nor section 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 ways to address those concerns (consistent with section 
308), and on appropriate formats or venues to make it available to the 
public. EPA also requests comment on whether the requirement to make 
any information collected pursuant to section 308 available to the 
public (except confidential business information) should factor into 
its determination about what information, if any, to collect from 
CAFOs.
2. What information would EPA not require as part of the collection 
request survey for CAFOs?
    In the settlement agreement with the environmental petitioners, 
arising out of litigation over the 2008 CAFO rule, EPA agreed 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 requests information on only some of those 
14 items because the Agency believes it can effectively obtain site-
specific answers for the remaining questions directly from states, 
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 representative 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 by 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;
     Type and capacity of manure storage;
     Quantity of manure, process wastewater, and litter 
generated annually by the CAFO;
     If the CAFO land-applies, whether it implements a nutrient 
management plan for land application;
     If the CAFO land-applies, whether it employs nutrient 
management practices and keeps records on site consistent with 40 CFR 
122.23(e);
     If the CAFO does not land apply, alternative 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, proposed paragraph Sec.  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 Sec.  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 by proposed 
paragraph Sec.  122.23(k)(2) is voluntary. This proposed option would 
allow states to submit the information because states may have 
collected all of the information 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 
information from CAFOs. Proposed paragraph Sec.  122.23(k)(2) provides 
flexibility to states by allowing each state to determine if it can 
easily submit the information to EPA given the state's resources.
    Under proposed paragraph Sec.  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 submits all items of 
information as specified by proposed paragraph Sec.  122.23(k)(2). 
States that choose to submit this information would be required to use