The purpose of the NPDES e-reporting rule is to shift from paper to electronic reporting for water dischargers and states. The proposed rule did not change anything about what states currently report to EPA about AFOs and CAFOs. However, as part of the discussion on the rule some stakeholders have raised concerns about how some of that information is presented by EPA on its ECHO website (http://echo.epa.gov).
To address those concerns, EPA proposes to use the opportunity of the electronic reporting rule to ask for comment about what information EPA posts on its ECHO website for the AFOs and CAFOs that do not need an NPDES permit. EPA would stop posting facility specific information submitted by states about non-permitted AFOs and CAFOs that the state inspectors found were not discharging and do not require an NPDES permit.
Because those facilities do not require an NPDES permit, EPA is proposing not to show facility specific information about such AFOs and CAFOs on EPA’s ECHO web site. Instead, EPA is proposing to only to post the total number of such facilities by State. EPA is taking public comment on that proposal with the supplemental notice on the NPDES e-reporting rule. If the effective date of the final rule is in the fall of 2015, and the rule is adopted as proposed, that change to EPA’s ECHO website would be implemented by the fall of 2016 (i.e., the change would occur a year after the effective date of the final rule). The change would remove from EPA’s ECHO website the facility specific information as described above. Those changes address the concerns that we have heard from agricultural stakeholders about posting facility specific information for the facilities not required to have permits.
If, after that change was implemented, EPA received a FOIA request for information pertaining to those facilities, EPA’s response would include consideration of the legitimate privacy interests of those facilities. EPA understands the concerns raised by USDA and agricultural stakeholders about the privacy interests of farmers, particularly where the state has determined there are no discharges and thus no requirement for a permit. If EPA receives a FOIA request for information regarding a facility that does not need an NPDES permit and that has no violation, EPA will review the information to determine whether that information should be withheld under privacy requirements. To determine whether the privacy exemptions apply, EPA is required to weigh the privacy interest of an individual against the public interest of disclosure. If the privacy interest outweighs the public interest, the information would be withheld.
So, for example, if the information is already available on another public website, that availability would be a significant factor in the EPA’s assessment of the weight of the individual’s privacy interest. On the other hand, if the state has submitted to EPA personal contact information for a facility that has no relationship to a permitted facility or a facility in violation and that is not easily publicly available on the internet, the individual’s privacy interest in this type of information would likely be greater than the public interest of disclosure. While we understand it would be more helpful to have definitive answers, the FOIA statute requires this type of case by case analysis.