MEMORANDUM

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:		14 September 2015

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SUBJECT: 	Description of EPA's Enforcement and Compliance History Online (ECHO) Website [DCN 0201]
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      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 Online (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 currently provides online access to compliance monitoring and enforcement data for approximately 800,000 regulated facilities across the United States. The information is pulled from a variety of federal databases and provides integrated compilation of federal and authorized program environmental inspections, violation determinations, enforcement actions, and other environmental records collected 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 displays 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 and leveraging data in support of enhanced transparency and accountability, improved government services, and a stronger economy. 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 newly generated or acquired government data freely available in open, machine-readable formats. See DCN 0068.
   2. Public Participation Is 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 clearly intended 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 broadly declares" in its "Congressional declaration of goals and policy" that "Public participation in the . . . enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State under this chapter shall be provided for, encouraged, and assisted by 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 public 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 accompanying the Senate bill emphasized that an essential element of the NPDES program is public participation, 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 citizen" 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 hearing 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 for 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 CFR 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 Requires Mandatory Disclosure Of 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 displays NPDES information that is public pursuant to existing legal requirements. ECHO provides facility information such as permit number, facility name, permit type, industrial category, location, inspection and enforcement history, and local environmental conditions and demographics. As described below, the Clean Water Act specifically directs that broad categories of NPDES information must be made available to the public. 
      First, information that NPDES permitted facilities submit on their permit applications is required to be publicly available. CWA section 402(j) requires that "[a] copy of each [NPDES] 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 all 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 specify 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). In particular, 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) by 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 already publicly 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 Electronic Reporting Rule. Furthermore, this case is distinguishable from the NPDES facility information found in 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., their 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 issue 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 "system 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 system of records. The website draws from various data resources across EPA that are not affected by this rule, such as the Federal Registry Service, aggregates that information, and provides the ability to search it on certain, limited fields. EPA disagrees that a Privacy Act system of records notice is required for ECHO. 
      The Privacy Act does not apply to ECHO for two basic reasons. First, the Privacy Act only applies to the records of individuals, which is defined narrowly 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"). Based 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, 40 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 sole proprietors) and that th[e] definition [of `individual'] (and, therefore, the Act) was intended to embrace only 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 1369 (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 generally have any Privacy Act rights."). There is no personally identifiable information collected in the Federal Registry Service system with the exception of name and associated business-related information. If a farmer's data such as name and address are in the system, it would be in an entrepreneurial capacity and therefore would not be covered by the Privacy Act. One commenter, 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 because the information pertains to individuals acting in an entrepreneurial capacity. Scarborough v. Harvey, 493 F. Supp. 2d 1 (D.D.C. 2007). Scarborough, however, dealt with descriptive Criminal Alert Notices created by the Department of Defense. In contrast, 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 as described in above. ECHO does not currently display individuals' 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 "system of records" under the Privacy Act, it must retrieve records by 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 type, industrial category, permit facility name, location address, primary permit code and description, latitude and longitude coordinates, and component type description. See https://echo.epa.gov/facilities/facility-search. Any personal name that is searchable in ECHO data systems 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 particular 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 latest available facility data from EPA's national NPDES data system (the Integrated Compliance Information System-NPDES) on a weekly schedule. The Integrated Compliance Information System-NPDES contains NPDES information that authorized NPDES programs and facilities in direct implementation states share with EPA. EPA has a robust error reporting and correction system along with robust quality control measures to ensure the accuracy of NPDES program data. EPA works hard to eliminate errors and the potential for inaccurately identifying noncompliance on ECHO (for example, EPA and states regularly 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 data errors. This error reporting system 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 Compliance Information System-NPDES. These data corrections are then brought into ECHO at the next weekly 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.
      After giving states a considerable amount of time to review and correct any 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 proper facility 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." ECHO currently differentiates between Discharge Monitoring Report data with and without permit effluent limits so that DMR information can be accurately interpreted by the public. This allows ECHO users to identify and assess pollutant discharges from facilities 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 by 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 by an NPDES application form may not be claimed as confidential. Pursuant to the applicable regulations, "[c]laims of confidentiality . . . will 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 by the Director under §122.21 may not be claimed confidential. This includes information submitted on the forms themselves and any attachments used to supply information required by 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 complying 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 appropriately controlling discharges from the production area, and have developed and are 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 60 Fed. Reg. 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 this 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 Issue 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 Reduction 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 provides the public with site-specific stormwater information it that it gives meaningful insights on the measures being employed to control stormwater. This information 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 to educate the general public on where to find the electronically reported data. NYRWA specifically 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 local 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 comments regarding how data may 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.
