COMMENTS ON EPA’S NPDES ELECTRONIC REPORTING RULE PROPOSAL
78 Fed. Reg. 46006 (July 30, 2013)
Docket ID No. EPA-HQ-OECA-2009-0274
 
INTRODUCTION
The North Dakota Stockmen’s Association (NDSA) appreciates the opportunity to comment on the Environmental Protection Agency’s (EPA) Proposed Rule entitled “NPDES Electronic Reporting Rule;” Docket ID No. EPA-HQ-OECA-2009-0274 (“Electronic Reporting Rule”).
 
The NDSA is an 84-year-old producer-directed beef cattle trade organization representing nearly 3,000 North Dakota beef producers. The NDSA is an advocate of cattle producers who are 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.
 
Cattle feeding operations have a significant stake in the outcome of this rulemaking as they are one segment of National Pollutant Discharge Elimination System (NPDES) permit holders under Sec. 402 of the Clean Water Act (CWA).  The NDSA submits that the public disclosure of information driving this proposal would increase the likelihood of agro-terrorism attacks and otherwise endanger the lives and welfare of North Dakota’s beef producers. The proposal neglects to recognize the unique aspects of NPDES reporting for livestock operations and also attempts to negate the primacy of state-delegated authorities in the permitting scheme reserved under the CWA. For these reasons and those that follow, the NDSA encourages the agency to revise its Electronic Reporting Rule to provide more flexibility to permit holders, add substantial protections that prevent the disclosure of personal information of cattle producers, and allow state-delegated authorities to be the lead in electronic reporting. The environmental benefits of this rule are nebulous, yet the costs and risks to livestock producers and their families are objective and substantial. The Electronic Reporting Rule should not be finalized in its current form.
 
BACKGROUND
The beef industry also continues to heavily utilize programs like the Environmental Quality Incentive Program (EQIP) and EPA’s 319 Program to install environmentally friendly practices on ranches across North Dakota. In fact, the NDSA has successfully managed an active EPA 319 program in North Dakota for 12 years.  These practices protect water quality, improve air quality, and provide habitat for endangered species and other wildlife.
 
Small family farms are still the predominant type of operation in the North Dakota cattle industry. The reality is that most of the producers who own and/or manage these operations live, with their families, at the same location, a unique aspect compared to other NPDES sectors. This fact makes them extremely susceptible to harassment and terrorist attacks. Any regulatory action that purports to increase public knowledge of all aspects of cattle feedlots will run the very high risk of concurrently increasing the likelihood that these ranch families will be singled out and harmed in some way.
 
The Proposed Electronic Reporting Rule places all of the burden, and a large amount of the cost, on NPDES permit holders. EPA touts the benefits and savings to state, tribes, and territories but recognizes that if the state lacks the capability to comply with the proposal it is the permit holder who is required to get the information directly to EPA, on top of also submitting it to the state in compliance with state laws and regulations. What was a single instance of paper reporting could potentially become two separate types of reporting to two separate agencies through two different processes. This flies in the face of EPA’s stated goal of easing the paperwork and permitting burden, because it adds an additional layer of obligation.
 
The waiver for livestock operations that do not have high-speed or broadband internet access is necessary and should remain in any final rule, but should be expanded into a multi-year waiver. The Electronic Reporting Rule recognizes one unique challenge faced by producers in rural areas; a lack of high speed internet. The one-year temporary waiver proposed by EPA attempts to address this problem. However, the NDSA is concerned that the slow speed of broadband infrastructure development in rural North Dakota lends itself to a multi-year waiver instead of a single-year waiver. EPA should consider whether a multi-year waiver is more practical.
 
EPA should not pursue this Electronic Reporting Rule until litigation surrounding the release of livestock producers’ personal information is fully resolved. In February 2013 and again twice in April 2013, EPA released the personal information on more than 80,000 individual livestock producers pursuant to Freedom of Information Act (FOIA) requests. The information released was highly sensitive in nature; including telephone numbers, e-mail addresses, and other personal information from livestock producers.  The NDSA submits that EPA should place strong protections on producers’ names, home addresses, e-mail addresses, telephone numbers and other personal information, which should not be made public without the consent of the producer.
 
CONCLUSION
The North Dakota cattle industry is proud of its history as stewards of our natural resources. The industry takes very seriously its obligation to protect the environment while providing the nation with a safe and affordable beef supply. EPA’s Electronic Reporting Rule does not create additional protections or help producers put environmentally friendly practices on the ground, but simply provides an administrative convenience for the agency which would increase the likelihood of domestic and foreign terrorist attacks on our nation’s food supply. It is unclear what information will be made public, but it is clear that the permitting burden on some NPDES permit holders would be heavier, and the majority of the cost is placed on the regulated community and state programs.  The proposal does not adequately evaluate the risks to the livestock sector and does not provide adequate protections for producers’ personal information. For these reasons, the Electronic Reporting Rule should not be finalized in its current form.
 
We appreciate this opportunity to comment.  If you have any questions, feel free to contact our office at (701) 223-2522.
 
Sincerely,
Jason Zahn, President
North Dakota Stockmen’s Association
 
 
North Dakota Stockmen's Association * 407 S. 2nd St. * Bismarck, ND 58504 * 701-223-2522 * ndsa@ndstockmen.org