January 16, 2012
Water Docket
U.S. Environmental Protection Agency
Mail Code 2822T
1200 Pennsylvania Ave. N.W.
Washington, D.C. 20460
Re: National Pollution Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule, EPA-HQ-OW-2011-0188, 76 Fed. Reg. 65,431 (Oct. 21, 2011).
To Whom It May Concern:
The North Dakota Stockmen’s Association writes regarding the Environmental Protection Agency’s (EPA) proposed “Reporting Rule for CAFO’s as related to the NPDES.”
The North Dakota Stockmen’s Association is an 82 year-old beef cattle trade organization representing nearly 3,000 North Dakota beef producers. The North Dakota Stockmen’s Association is an advocate of cattle producers carrying on the tradition as stewards of the land and conservationists of the soil, air and water. These beef producers own and operate facilities that produce or contribute to the production of the livestock that provide safe and affordable food to people across the world. 
EPA is proposing to amend its NPDES permitting regulations for CAFOs to impose new regulatory requirements on how CAFOs submit information to EPA. EPA is co-proposing two options involving the collection of information under the authority of Section 308 of the Clean Water Act (CWA) and has requested comment on a third option under which EPA would collect information using alternative approaches. Under Option 1, EPA would seek information from all CAFOs defined as a large or medium CAFO that are located nationwide. Under Option 2, EPA would seek information from all CAFOs defined as a large or medium CAFO that are located in a “focus watershed.” Under the alternative approach, EPA would either: (1) obtain data from existing sources, (2) use compliance assistance and outreach efforts in partnership with industry to proactively protect and maintain water quality, or (3) amend the regulations relating to state program authorization to require authorized states to submit CAFO information obtained under state regulatory programs to EPA, and, as a backup, promulgate the CAFO reporting rule under Section 308 of the CWA to give EPA authority to require CAFOs to submit information directly if a state fails to do so. 
As discussed below, the North Dakota Stockmen’s Association believes that the proposed CAFO Reporting Rule would exceed EPA’s authority under the CWA and could put America’s food supply at risk by publicizing private business information. To address these issues, we recommend that EPA achieves its goal of improving water quality by relying on publicly available information and partnerships to target its outreach and compliance assistance efforts, in lieu of promulgating this proposed rule.
EPA’s Proposed CAFO Rule Exceeds EPA’s Authority Because it Requires Facilities That Are Not Point Sources to Submit Information.
In this proposed rule, EPA is proposing to amend its NPDES permitting regulations for CAFOs in a way that would regulate non-point source CAFOs. Thus, this proposal exceeds EPA’s authority under the CWA. 
EPA is proposing to collect information from all CAFOs, even though EPA has not established a record that would support any contention that all CAFOs are or may be discharging pollutants. 
EPA’s record regarding the existence of many CAFOs that do not and cannot discharge is supported by state data regarding releases from livestock operations. Despite this extensive record demonstrating the existence of many CAFOs that do not and cannot discharge, EPA is proposing to require either all CAFOs nationwide (Option 1) or all CAFOs in a watershed identified by EPA (Option 2) to submit information to EPA. Both options suffer from the same legal flaw: they would require, under threat of penalty, the submission of information from CAFOs that not only do not discharge, but, due to location or design, cannot discharge pollutants to waters of the United States. EPA has no authority to subject such facilities to a regulatory requirement to submit information under EPA’s NPDES regulations for CAFOs. EPA must limit its proposed CAFO Reporting Rule to facilities that meet the definition of point source.
EPA is attempting to draw a distinction without a difference. Both Section 402 and Section 308 of the CWA regulate only point sources. The 2003 and 2008 CAFO rules and the proposed CAFO Reporting Rule all attempt to regulate facilities that do not meet the definition of a point source. As such, the proposed CAFO Reporting Rule suffers from the same fundamental defect as the CAFO rules reviewed by the Second and Fifth Circuits (that of regulating beyond the scope of EPA’s statutory authority.) Specifically, both Option 1 and Option 2 would amend EPA’s NPDES regulations for CAFOs to impose ongoing reporting obligations on all CAFOs, without any inquiry into whether the CAFO is or may be discharging. Indeed, the information required by the Proposed Rule is nearly indistinguishable from what must be provided in an NPDES permit application.
EPA’s Proposed Rule Exceeds Its Authority Because it is Not Reasonably Required to Carry Out an Objective of the CWA.                                                                                     EPA is proposing to require CAFOs to report location information, contact information, NPDES permit information, information on the type and number of animals at a CAFO, and information on acres available for land application of manure. EPA has not demonstrated that collecting such information from all CAFOs nationwide (Option 1) or all CAFOs in a particular watershed (Option 2) is reasonably required to carry out an objective of the CWA.
This argument fails to support EPA’s proposed information collection because, as EPA admits in the proposed CAFO rule, this information is already known by the state permitting authorities.
EPA’s Proposed Rule Puts the Security of Our Food Supply and the Privacy of Farm & Ranch Families At Risk.                                                                                                           The location of CAFO production areas is exactly the kind of information that should be protected from disclosure because there is an established record of misuse of such information. Specifically, there is a long record of illegal acts of trespass and property damage against CAFOs and other animal agriculture facilities by animal rights activists as well as other persons.  The recent unfortunate attack on a California feedyard is a perfect example of why our organization is concerned.    
Specific Comments on EPA’s Proposals.
As noted above, the North Dakota Stockmen’s Association has strong concerns regarding EPA’s authority to issue a regulation requiring all CAFOs nationwide (Option 1) or all CAFOs in targeted watersheds (Option 2) to submit information to EPA. In addition, we have strong concerns regarding the security and privacy implications of such an information collection. For these reasons, we urge EPA to forego any rulemaking that would require the submission of information to EPA by individual CAFOs. In fact, any regulation that imposes reporting requirements on individual CAFOs is likely to fail because the proposal would impact so many unregulated facilities, in addition it would create a huge burden on EPA without the resources to support this workload. 
Specific Comments on Option 1
Under Option 1, EPA is proposing to amend its NPDES permitting regulations for CAFOs to require all large and regulated medium CAFOs to report information to EPA including the legal name (or authorized representative) of the CAFO operator, the location of the CAFO production area identified by latitude and longitude or street address, NPDES permit information, the number of animals by type confined for 45 days or more, and the total area under the control of the CAFO operator that are available for land application.
First, the North Dakota Stockmen’s Association does not believe that EPA is under any obligation to require any information from CAFOs or even to issue this proposed rule. Secondly, if EPA decides, as a matter of policy, to proceed with this rulemaking, the recently proposed Paperwork Reduction Act obligates EPA to demonstrate that information to be collected is necessary, reduces reporting burdens, and that EPA has avoided collecting information that is reasonably available. 
Finally, EPA is seeking comment on whether it should first seek information from states before seeking information from CAFOs. In most cases, states are authorized to be a NPDES permitting authority for CAFOs. In those locations, we do not believe that EPA needs the information it is seeking, either from CAFOs directly or from the states. In those states where EPA is the permitting authority, it already has the information it is requesting. In either case, the information proposed to be collected is readily available to the persons who implement the NDPES program, which, according to EPA’s supporting statement, is the purpose of this information collection request.
Specific Comments on Option 2.
Under Option 2, EPA proposes to first identify watersheds “with water quality problems likely attributable to CAFOs, and then potentially identify CAFOs in the focus watershed to respond to a survey request.” 
This proposal is an admission by EPA that it does not need to know the location of specific CAFOs to determine where to focus its outreach activities. EPA can use information available from state water quality reports submitted under Section 305(b) of the CWA and the identification of impaired waters under Section 303(d) of the CWA to determine what water bodies are impaired by nutrients. EPA can then combine this information with information available from United States Department of Agriculture on the aggregate number of CAFOs located in each state to identify areas where it may wish to work with the states, USDA, and other stakeholders to focus its outreach and compliance assistance resources. These activities do not require rulemaking.
For these reasons, we do not support Option 2. EPA has not demonstrated that a CAFO Reporting Rule that would apply to all CAFOs in a specific watershed is necessary and collecting information under Section 308 of the CWA presents the security and privacy concerns discussed above.
Specific comments on Alternative Approaches.
EPA also seeks comment on a third option: reliance on “alternative approaches to achieve rule objectives.” This approach does not require rulemaking unless EPA decides to require authorized states to submit information.
We are concerned that a central repository of CAFO location information, particularly if that information is posted on EPA’s website, would create the security and privacy issues discussed above. If EPA obtains such information without using its CWA Section 308 authority, it will be under no obligation to make this information public, which may be more palatable for the livestock industry to accept. 
EPA also seeks comment on whether it should require states to submit information about CAFOs. If EPA decides to pursue this option, it should first ensure that that information collected from states will not become publicly available. EPA cannot act under the authority of Section 308 to obtain information from states, since states are not point sources. However, before proposing a change to its state authorization regulations, EPA should first determine if a submission from a state would become public under federal or state freedom of information laws and refrain from collecting any location information that would become public.  
Finally, for all the reasons discussed above, we do not support requiring submission of information from individual CAFOs under Section 308 if states do not provide information to EPA. The collection of information from individual CAFOs is not necessary and creates significant security and privacy concerns. Moreover, as noted above, EPA cannot claim that it is necessary to collect information that is already available to NPDES permitting authorities. 
For all the aforementioned reasons, the North Dakota Stockmen’s Association urges EPA to refrain from promulgating these proposed amendments to EPA’s NPDES CAFO regulations. We feel that EPA can achieve its objective of improving water quality without this rulemaking.
We appreciate this opportunity to comment. If you have any questions, feel free to contact our office at (701) 223-2522.
Jason Schmidt, President
North Dakota Stockmen’s Association