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:		4 September 2015

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SUBJECT: 	Description of ECHO Data Masking for Unpermitted CAFOs and AFOs that an Authorized NPDES Program or EPA have Assessed and Found to have not violated the Clean Water Act [DCN 0207]
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      EPA received many comments from the animal agricultural sector in response to the proposed rule. Although this rule only changes the mode of transmission of NPDES information from paper-based reports to electronic reporting and does not address EPA's practices for managing and sharing that information, EPA received comments regarding privacy, security, management of confidential business information, and EPA's current practice of posting inspection information on unpermitted CAFOs and Animal Feeding Operations (AFOs) on its public website [Enforcement and Compliance History Online (ECHO)  -  http://echo.epa.gov]. EPA used the supplemental notice to the proposed rule to clarify the effects of this proposed rule on CAFOs in response to these comments (see 1 December 2014; 79 FR 71073). 
      This final rule would only require CAFOs with NPDES permits to submit information that the Clean Water Act and existing regulations already requires them to provide to permitting authorities. See 33 U.S.C. 1342. The final rule simply modernizes the format through which permitted CAFOs would submit certain types of information by requiring electronic submission as opposed to paper-based reporting. This modernized format will increase efficiencies for permitted CAFOs as well as regulators. Additionally, under this final rule a permitted CAFO can also request a temporary waiver from electronic reporting consistent with authorized NPDES program's implementation plan.
      As part of its oversight role, EPA currently gathers information from states on point sources (both permitted and unpermitted) that discharge pollutants or may discharge pollutants for a variety of purposes, including determining compliance with applicable effluent limitations and understanding how authorized states are implementing the NPDES program.  Under 40 CFR 123.26(b) and (c), authorized NPDES programs are required to conduct inspections, including of unpermitted facilities, to determine whether there are facilities that are discharging without a permit. Under 40 CFR 123.41(a), authorized states are required to share all information obtained in the administration of their NPDES program with EPA. EPA maintains this information in its national NPDES data system ICIS-NPDES. EPA also makes inspection data publicly available via ECHO. 
      EPA also solicited comments in the supplemental notice to the proposed rule on whether it should change its current practice and begin masking facility information for unpermitted CAFOs and AFOs that EPA or state inspectors found were not discharging and do not require an NPDES permit. EPA published the following example (see Table 1) in the supplemental notice to the proposed rule showing how EPA could mask these data and solicited comments on this approach.

Table 1: Proposed Hypothetical Example of Masking Unpermitted CAFOs and AFOs that State Inspectors Found Were Not Discharging and Do Not Require an NPDES Permit
                                 Facility #1 
                                 Facility #2 
                           Show-Me State Animal Farm
            Location: 11300 Ozark Lane, Perryville, Missouri 63775
                                County: Perry 
                      Lat.: 37.836084, Long: -89.738644 
Inspection(s): 3/14/2010 (no violation identified); 6/22/2014 (discharging without an NPDES permit)
                         Unpermitted CAFO/AFO-0000001
                              Location: Missouri
                         County: Redacted from Website
                       Lat./Lon.: Redacted from Website
Inspection(s): 2/17/2009 (no violation identified); 5/25/2013 (no violation identified)
      
      In this hypothetical example, the unpermitted CAFO shown in the column labeled "Facility #1" would not have its facility and contact information displayed on EPA's public website until the weekly refresh of ECHO data from ICIS-NPDES after 22 June 2014, which is the date the state or EPA Region identified that the facility had a Clean Water Act violation (i.e., discharging without an NPDES permit) and entered these data into ICIS-NPDES. If an unpermitted CAFO does not have a Clean Water Act violation as determined by the authorized NPDES program or EPA, then the facility and contact information would not be displayed on EPA's ECHO website (see the column labeled "Facility #2" in the above table).
      EPA also solicited input on potential changes to its national NPDES data system (ICIS-NPDES), which are necessary to provide authorized NPDES programs and Regions with the capability to identify these non-permitted CAFO/AFOs that do not require an NPDES permit (1 December 2014; 79 FR 71080). 
      Comments from the animal agricultural sector were in favor of this proposed approach while other commenters (e.g., environmental advocacy groups) were not. Some authorized NPDES programs also support this as a reasonable approach in balancing the competing interests of privacy and public access to these data. Separate from this rulemaking, in light of concerns raised regarding the privacy interests of an unpermitted CAFO or AFO that an authorized NPDES program or EPA has assessed and found to have not violated the Clean Water Act, EPA will change its current practice and mask on the ECHO public website the related facility-specific facility information (see Table 1). 
      EPA will implement this data masking in an iterative, two-step process. EPA is using a two-step process because unpermitted facilities in EPA's national NPDES data system (ICIS-NPDES) cannot currently be identified by CAFO permit component data field. As a first step, EPA will use other currently available data in ICIS-NPDES to identify unpermitted CAFOs or AFOs that an authorized NPDES program or EPA have assessed and found to have not violated the Clean Water Act using the following conditions:  
      Interim Approach
      * Condition #1: Facility has either a SIC code beginning with "02", or NAICS code of "112" (both are for agricultural livestock operations), or a CAFO permit component; and 
      * Condition #2: Facility does not have an active NPDES permit (have a permit type "Unpermitted" or permit status of "Pending", "Not Needed", "Terminated", or "Retired"); and 
      * Condition #3: Facility does not have any NPDES violations (Single-Event, DMR, Compliance Schedule, or Permit Schedule).
      EPA plans to implement this interim approach by the effective date of this final rule. EPA will also continue to work with authorized NPDES programs to ensure that they are sharing all the data necessary to help implement this first approach. In particular, authorized NPDES programs will need to ensure that they are sharing SIC code or NAICS code data with ICIS-NPDES.
      EPA plans to supersede the first approach with a second data masking approach outlined in the Supplemental Notice to the proposed rule (1 December 2014; 79 FR 71080). The second data masking approach will only use CAFO permit component data to identify unpermitted CAFOs and AFOs.
      Second Approach
      * Condition #1: Facility has a CAFO permit component; and 
      * Condition #2: Facility does not have an active NPDES permit (have a permit type "Unpermitted" or permit status of "Pending", "Not Needed", "Terminated", or "Retired"); and 
      * Condition #3: Facility does not have any NPDES violations (Single-Event, DMR, Compliance Schedule, or Permit Schedule).
       This second approach will take more time to implement as upgrades to ICIS-NPDES and coordination with authorized NPDES programs are necessary to identify the exact set of unpermitted CAFOs and AFOs that an authorized NPDES program or EPA have assessed and found to have not violated the Clean Water Act. EPA anticipates it will need a year after the final rule to adopt the above second data masking approach.

