[Federal Register Volume 66, Number 9 (Friday, January 12, 2001)]
[Proposed Rules]
[Pages 2960-3145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1]
[[Page 2959]]
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Part II
Environmental Protection Agency
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40 CFR Parts 122 and 412
National Pollutant Discharge Elimination System Permit Regulation and
Effluent Limitations Guidelines and Standards for Concentrated Animal
Feeding Operations; Proposed Rule
Federal Register / Vol. 66, No. 9 / Friday, January 12, 2001 /
Proposed Rules
[[Page 2960]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 412
[FRL-6921-4]
RIN 2040-AD19
National Pollutant Discharge Elimination System Permit Regulation
and Effluent Limitations Guidelines and Standards for Concentrated
Animal Feeding Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Today the Environmental Protection Agency proposes to revise
and update two regulations that address the impacts of manure,
wastewater, and other process waters generated by concentrated animal
feeding operations (CAFOs) on water quality. These two regulations are
the National Pollutant Discharge Elimination System (NPDES) provisions
that define which operations are CAFOs and establish permit
requirements, and the Effluent Limitations Guidelines for feedlots
(beef, dairy, swine and poultry subcategories), which establish the
technology-based effluent discharge standards for CAFOs. EPA is
proposing revisions to these regulations to address changes that have
occurred in the animal industry sectors over the last 25 years, to
clarify and improve implementation of CAFO permit requirements, and to
improve the environmental protection achieved under these rules.
Environmental concerns being addressed by this rule include both
ecological and human health effects. Manure from stockpiles, lagoons,
or excessive land application can reach waterways through runoff,
erosion, spills, or via groundwater. These discharges can result in
excessive nutrients (nitrogen, phosphorus, and potassium), oxygen-
depleting substances, and other pollutants in the water. This pollution
can kill fish and shellfish, cause excess algae growth, harm marine
mammals, and contaminate drinking water.
Today's action co-proposes two alternatives for how to structure
the revised NPDES program for CAFOs; the alternatives offer comparable
environmental benefits but differ in their administrative approach. EPA
also requests comment on two other alternatives that the Agency is
considering and may pursue after evaluating the comments.
EPA is also proposing to revise effluent guidelines applicable to
beef, dairy, swine, and poultry operations that are defined as CAFOs,
pursuant to the NPDES revisions. The proposed effluent guidelines
include regulations for both new and existing animal feeding operations
that meet the definition of a CAFO. Today's effluent guidelines
revisions do not alter the requirements for horses, ducks, sheep or
lambs.
DATES: Comments must be received or postmarked on or before midnight
May 2, 2001.
ADDRESSES: Public comments regarding this proposed rule should be
submitted by mail to: Concentrated Animal Feeding Operation Proposed
Rule, Office of Water, Engineering and Analysis Division (4303), USEPA,
1200 Pennsylvania Avenue, NW., Washington, DC 20460. Hand deliveries
(including overnight mail) should be submitted to the Concentrated
Animal Feeding Operation Proposed Rule, USEPA, Waterside Mall, West
Tower, Room 611, 401 M Street, SW., Washington, DC 20460. You also may
submit comments electronically to [email protected]. Please submit
any references cited in your comments. Please submit an original and
three copies of your written comments and enclosures. For additional
information on how to submit comments, see ``SUPPLEMENTARY INFORMATION,
How May I Submit Comments?''
FOR FURTHER INFORMATION CONTACT: For additional technical information
contact Karen Metchis or Jan Goodwin at (202) 564-0766.
SUPPLEMENTARY INFORMATION:
What Entities Are Potentially Regulated by This Action?
This proposed rule would apply to new and existing animal feeding
operations that meet the definition of a concentrated animal feeding
operation, or which are designated by the permitting authority as such.
Concentrated animal feeding operations are defined by the Clean Water
Act as point sources for the purposes of the NPDES program. (33 U.S.C.
Sec. 1362).
The following table lists the types of entities that are
potentially subject to this proposed rule. This table is not intended
to be exhaustive, but rather provides a guide for readers regarding
entities likely to be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility would be regulated by this action, you should carefully
examine the applicability criteria proposed at Sec. 122.23(a)(2) of the
rule. If you have questions regarding the applicability of this action
to a particular entity, consult one of the persons listed for technical
information in the preceding FOR FURTHER INFORMATION CONTACT section.
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Examples of regulated North American Standard Industrial
Category entities Industry Code (NAIC) Classification Codes
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Federal, State and Local Government
Industry........................... ........................... See below............. See below
Operators of animal
production operations that
meet the definition of a
concentrated animal
feeding operation.
Beef cattle feedlots..... 112112................ 0211
Hogs..................... 11221................. 0213
Sheep and goats.......... 1241, 11242........... 0214
General livestock, except 11299................. 0219
dairy and poultry.
Dairy farms.............. 112111, 11212......... 0241
Broilers, fryers, and 11232................. 0251
roaster chickens.
Chicken eggs............. 11231................. 0252
Turkey and turkey eggs... 11233................. 0253
Poultry hatcheries....... 11234................. 0254
Poultry and eggs, NEC.... 11239................. 0259
Ducks.................... 112390................ 0259
Horses and other equines. 11292................. 0272
[[Page 2961]]
Meat packing or poultry
processing companies that
may be a potential co-
permittee because of
substantial operational
control over a CAFO.
Animal Slaughtering and 3116.................. 02
Processing.
Owners or operators of crop
production operations that
may receive CAFO manure
for use as a fertilizer
substitute.
Crop Production.......... 111................... 01
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How May I Review the Public Record?
The record (including supporting documentation) for this proposed
rule is filed under docket number OW-00-27 (proposed rule). The record
is available for inspection from 9 a.m. to 4 p.m. on Monday through
Friday, excluding legal holidays, at the Water Docket, Room EB 57,
USEPA Headquarters, 401 M Street, SW, Washington, DC 20460. For access
to docket materials, please call (202) 260-3027 to schedule an
appointment during the hours of operation stated above.
How May I Submit Comments?
To ensure that EPA can read, understand, and therefore properly
respond to comments, the Agency requests that you cite, where possible,
the paragraph(s) or sections in the preamble, rule, or supporting
documents to which each comment refers. You should use a separate
paragraph for each issue discussed.
If you want EPA to acknowledge receipt of your comments, enclose a
self-addressed, stamped envelope. No faxes will be accepted. Comments
may also be submitted electronically to [email protected].
Electronic comments must be submitted as an ASCII, WordPerfect 5.1,
WP6.1, or WP8 file avoiding the use of special characters and forms of
encryption. Electronic comments must be identified by the docket number
OW-00-27. EPA will accept comments and data on disks in WordPerfect
5.1, 6.1, or 8 format or in ASCII file format. Electronic comments on
this notice may be filed on-line at many Federal depository libraries.
Table of Contents
I. Legal Authority.
II. Purpose and Summary of the Proposed Regulation.
III. Background.
A. The Clean Water Act.
B. History of EPA Actions to Address CAFOs.
C. Which Requirements Apply to CAFOs.
D. How Do Today's Proposed Revisions Compare to the Unified
National AFO Strategy?
IV. Why is EPA Changing the Effluent Guidelines for Feedlots and the
NPDES CAFO Regulations?
A. Main Reasons for Revising the Existing Regulations.
B. Water Quality Impairment Associated with Manure Discharge and
Runoff.
C. Recent Changes in the Livestock and Poultry Industry.
D. Improve Effectiveness of Regulations.
V. What Environmental and Human Health Impacts are Potentially
Caused by CAFOs?
A. Which Pollutants Do CAFOs Have the Potential to Discharge and
Why are They of Concern?
B. How Do These Pollutants Reach Surface Waters?
C. What are the Potential and Observed Impacts?
VI. What are Key Characteristics of the Livestock and Poultry
Industries?
A. Introduction and Overview.
B. Beef Subcategory.
C. Dairy Subcategory.
D. Hog Subcategory.
E. Poultry Subcategory.
VII. What Changes to the NPDES CAFO Regulations are Being Proposed?
A. Summary of Proposed NPDES Regulations.
B. What Size AFOs Would be Considered CAFOs?
C. Changes to the NPDES Regulations.
D. Land Application of CAFO-generated Manure.
E. What are the Terms of an NPDES Permit?
F. What Type of NPDES Permit is Appropriate for CAFOs?
VIII.What Changes to the Feedlot Effluent Limitations Guidelines are
Being Proposed?
A. Expedited Guidelines Approach.
B. Changes to Effluent Guidelines Applicability.
C. Changes to Effluent Limitations and Standards.
IX. Implementation of Revised Regulations.
A. How do the Proposed Changes Affect State CAFO Programs?
B. How Would EPA's Proposal to Designate CAFOs Affect NPDES
Authorized States?
C. How and When Will the Revised Regulations be Implemented?
D. How Many CAFOs are Likely to be Permitted in Each State and
EPA Region?
E. Funding Issues.
F. What Provisions are Made for Upset and Bypass?
G. How Would an Applicant Apply for Variances and Modifications
to Today's Proposed Regulation?
X. What are the Costs and Economic Impacts of the Proposed
Revisions?
A. Introduction and Overview.
B. Data Collection Activities.
C. Method for Estimating Compliance Costs.
D. Method for Estimating Economic Impacts.
E. Estimated Annual Costs of the Proposed Regulatory Options/
Scenarios.
F. Estimated Economic Impacts of the Proposed Regulatory
Options/Scenarios.
G. Additional Impacts.
H. Cost-Effectiveness Analysis.
I. Cost-Benefit Analysis.
J. Initial Regulatory Flexibility Analysis.
XI. What are the Environmental Benefits of the Proposed Revisions?
A. Non-Water Quality Environmental Impacts.
B. Quantitative and Monetized Benefits.
XII. Public Outreach.
A. Introduction and Overview.
B. Joint USDA/EPA Unified AFO Strategy Listening Sessions.
C. Advisory Committee Meeting.
D. Farm Site Visits.
E. Industry Trade Associations.
F. CAFO Regulation Workgroup.
G. Small Business Advocacy Review Panel.
XIII. Administrative Requirements.
A. Executive Order 12866: ``Regulatory Planning and Review''.
B. Regulatory Flexibility Act (RFA) as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
C. Unfunded Mandates Reform Act.
D. Executive Order 13045: ``Protection of Children from
Environmental Health Risks and Safety Risks''.
E. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments.
F. Paperwork Reduction Act.
G. Executive Order 13132: ``Federalism''.
H. Executive Order 12898: ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations''.
I. National Technology Transfer and Advancement Act.
XIV. Solicitation of Comments.
A. Specific Solicitation of Comment and Data.
B. General Solicitation of Comment.
I. Legal Authority
Today's proposed rule is issued under the authority of sections
301, 304, 306, 307, 308, 402, and 501 of the Clean
[[Page 2962]]
Water Act (CWA), 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, and
1361.
II. Purpose and Summary of the Proposed Regulation
Today, the Environmental Protection Agency proposes to revise and
update two regulations that address the impacts on water quality from
manure, wastewater, and other process waters generated by concentrated
animal feeding operations (CAFOs). The National Pollutant Discharge
Elimination System (NPDES) provisions in 40 CFR Part 122 define which
operations are CAFOs and establish permit requirements for those
operation. The Effluent Limitations Guidelines (ELG), or effluent
guidelines, for feedlots in 40 CFR Part 412 establish technology-based
effluent discharge standards that are applied to CAFOs. Both
regulations were originally promulgated in the 1970s. EPA is proposing
revisions to these regulations to address changes that have occurred in
the animal industry sectors over the last 25 years, to clarify and
improve implementation of CAFO permit requirements, and to improve the
environmental protection achieved under these rules.
Environmental concerns being addressed by this rule include both
ecological and human health effects. Manure from stockpiles, lagoons,
or excessive land application rates can reach waterways through runoff,
erosion, spills, or via groundwater. These discharges can result in
excessive nutrients (nitrogen, phosphorus, and potassium), oxygen-
depleting substances, and other pollutants in the water. This pollution
can kill fish and shellfish, cause excess algae growth, harm marine
mammals, and contaminate drinking water.
On October 30, 1989, Natural Resources Defense Council, Inc., and
Public Citizen, Inc., filed an action against EPA in which they
alleged, among other things, that EPA had failed to comply with CWA
section 304(m). Natural Resources Defense Council, Inc., et al. v.
Reilly, Civ. No. 89-2980 (RCL) (D.D.C.). Plaintiffs and EPA agreed to a
settlement of that action in a consent decree entered on January 31,
1992. The consent decree, which has been modified several times,
established a schedule by which EPA is to propose and take final action
for eleven point source categories identified by name in the decree and
for eight other point source categories identified only as new or
revised rules, numbered 5 through 12. After completing a preliminary
study of the feedlots industry under the decree, EPA selected the swine
and poultry portion of the feedlots industry as the subject for New or
Revised Rule #8, and the beef and dairy portion of that industry as the
subject for New or Revised Rule #9. Under the decree, as modified, the
Administrator was required to sign a proposed rule for both portions of
the feedlots industry on or before December 15, 2000, and must take
final action on that proposal no later than December 15, 2002. As part
of EPA's negotiations with the plaintiffs regarding the deadlines for
this rulemaking, EPA entered into a settlement agreement dated December
6, 1999, under which EPA agreed, by December 15, 2000, to also propose
to revise the existing NPDES permitting regulations under 40 C.F.R.
part 122 for CAFOs. EPA also agreed to perform certain evaluations,
analyses or assessments and to develop certain preliminary options in
connection with the proposed CAFO rules. (The Settlement Agreement
expressly provides that nothing in the Agreement requires EPA to select
any of these options as the basis for its proposed rule.)
The existing regulation defines facilities with 1,000 animal units
(``AU'') or more as CAFOs. The regulation also states that facilities
with 300-1000 AU are CAFOs if they meet certain conditions. The term AU
is a measurement established in the 1970 regulations that attempted to
equalize the characteristics of the wastes among different animal
types.
Today's proposals presents two alternatives for how to structure
the revised NPDES program for CAFOs. The first alternative is a ``two-
tier structure'' that simplifies the definition of CAFOs by
establishing a single threshold for each animal sector. This
alternative would establish a single threshold at the equivalent of 500
AU above which operations would be defined as CAFOs and below which
facilities would become CAFOs only if designated by the permit
authority. The 500 AU equivalent for each animal sector would be as
follows.
500 cattle excluding mature dairy or veal cattle
500 veal cattle
350 mature dairy cattle (whether milked or dry)
1,250 mature swine weighing over 55 pounds
5,000 immature swine weighing 55 pounds or less
50,000 chickens
27,500 turkeys
2,500 ducks
250 horses
5,000 sheep or lambs
The second proposal would retain the ``three-tier structure'' of
the existing regulation. Under this alternative, all operations with
1,000 AU or more would be defined as CAFOs; those with 300 AU to 1,000
AU would be CAFOs only if they meet certain conditions or if designated
by the permit authority; and those with fewer than 300 AU would only be
CAFOs if designated by the permit authority. These conditions are
detailed in section VII of this preamble and differ from those in the
current rule. Facilities with 300 AU to 1,000 AU would certify that
they do not meet the conditions for being defined as a CAFO or apply
for a permit. The 300 AU and 1,000 AU equivalent number of animals for
each sector would be as follows:
------------------------------------------------------------------------
1,000 AU 300 AU
equivalent equivalent
Animal type (no. of (no. of
animals) animals)
------------------------------------------------------------------------
Cattle excluding mature dairy or veal 1,000 300
cattle.................................
Veal.................................... 1,000 300
Mature Dairy Cattle..................... 700 200
Swine weighing more than 55 pounds...... 2,500 750
Swine weighing 55 pounds or less........ 10,000 3,000
Chickens................................ 100,000 30,000
Turkeys................................. 55,000 16,500
Ducks................................... 5,000 1,500
Horses.................................. 500 150
Sheep or Lambs.......................... 10,000 3,000
------------------------------------------------------------------------
[[Page 2963]]
The Agency is also taking comment on two other alternatives that
the Agency is considering and may pursue after evaluating comments.
Today's proposal would also expand the regulatory definition of
CAFOs to include all types of poultry operations regardless of the type
of manure handling system or watering system they use, and also would
include standalone immature swine and heifer operations.
Under the two-tier proposal, EPA is proposing to simplify the
criteria for being designated as a CAFO by eliminating two specific
criteria that have proven difficult to implement, the ``direct
contact'' criterion and the ``man made device'' criterion. Under the
three-tier proposal, EPA is proposing to retain those criteria for
designating operations which have less than 300 AU. Both proposals
retain the existing requirement for the permit authority to consider a
number of factors to determine whether the facility is a significant
contributor of pollution to waters of the U.S., and the requirement for
an on-site inspection prior to designation. EPA is also proposing to
clarify that EPA has the authority to designate CAFOs both in states
where EPA is the permit authority and in States with NPDES authorized
programs.
EPA is proposing to eliminate the 25-year, 24-hour storm event
permit exclusion and to impose a broader, more explicit duty for all
CAFOs to apply for a permit (with one exception as described below).
Under the current regulations, facilities are excluded from being
defined as, and thus subject to permitting as, CAFOs if they discharge
only in the event of a 25-year, 24-hour storm. This exclusion has
proven to be problematic in practice, as described below, and
ultimately unnecessary. There are many operations that currently may be
avoiding permitting by an inappropriate reliance on this exclusion. The
Agency believes there is no reason to retain this exclusion from the
definition of a CAFO. However, EPA is proposing to retain the 25-year,
24-hour storm standard as a design standard in the effluent guidelines
for certain sectors (specifically, the beef and dairy sectors). CAFOs
in those sectors would need to obtain permits, but the permits would
allow certain discharges as long as the facility met the 25-year, 24-
hour storm design standard.
In sum, under today's proposal, all operations that meet the
definition of a CAFO under either of the two alternative structures (as
well as all operations that are designated as CAFOs) would be required
to apply for a permit. There would, however, be one exception to this
requirement, as described in more detail below: If the operator could
demonstrate to the permitting authority that the facility has ``no
potential to discharge,'' then a permit application and a permit would
not be required.
Under the two-tier structure, the net effect of the revisions for
determining which facilities are CAFOs is to require approximately
26,000 operations to apply for a NPDES permit. Under the three-tier
structure, EPA estimates that approximately 13,000 operations would be
required to apply for a permit, and an additional 26,000 operations
could either certify that they are not a CAFO or apply for a permit.
Under the existing regulation, EPA estimates that about 12,000
facilities should be permitted but only 2,530 have actually applied for
a permit.
Today's proposal would clarify the definition of a CAFO as
including both the production areas (animal confinement areas, manure
storage areas, raw materials storage areas and waste containment areas)
and the land application areas that are under the control of the CAFO
owner or operator. As the industry trend is to larger, more specialized
feedlots with less cropland needing the manure for fertilizer, EPA is
concerned that manure is being land applied in excess of agricultural
uses and, therefore, being managed as a waste product, and that this
practice is causing runoff or leaching to waters of the U.S. The permit
would address practices at the production area as well as the land
application area, and would impose record keeping and other
requirements with regard to transfer of manure off-site.
EPA is further proposing to clarify that entities that exercise
``substantial operational control'' over the CAFO are ``operators'' of
the CAFO and thus would need to obtain a permit along with the CAFO
owner or operator. The trend toward specialized animal production under
contract with processors, packers and other integrators has
increasingly resulted in concentrations of excess manure beyond
agricultural needs in certain geographic areas. Especially in the
poultry and swine sector, the processor provides the animals, feed,
medication and/or specifies growing practices. EPA believes that
clarifying that both parties are liable for compliance with the terms
of the permit as well as responsible for the excess manure generated by
CAFOs will lead to better management of manure.
The proposed effluent guidelines revisions would apply only to
beef, dairy, swine, poultry and veal operations that are defined or
designated as CAFOs under either of the two alternative structures and
that are above the threshold for the effluent guideline. For those
CAFOs below the threshold for being subject to the effluent guidelines,
the permit writer would use best professional judgment (BPJ) to develop
the site-specific permit conditions.
Today's proposed effluent guidelines revisions would not alter the
existing effluent guideline regulations for horses, ducks, sheep or
lambs. In these sectors, only facilities with 1,000 AU or more are
subject to the effluent guidelines. Permits for operations in these
subcategories with fewer than 1,000 AU would continue to be developed
based on the best professional judgement of the permit writer.
The proposed effluent guidelines regulations for beef, dairy,
swine, poultry and veal operations will establish the Best Practicable
Control Technology (BPT), Best Conventional Pollutant Control
Technology (BCT), and the Best Available Technology (BAT) limitations
as well as New Source Performance Standards, including specific best
management practices which ensure that manure storage and handling
systems are inspected and maintained adequately. A description of these
requirements is in Section III.
Under the BPT requirements for all of the subcategories, EPA is
proposing to require zero discharge from the production area except
that an overflow due to catastrophic or chronic storms would be allowed
if the CAFO met a certain design standard for its containment
structures. If a CAFO uses a liquid manure handling system, the storage
structure or lagoon would be required to be designed, constructed and
maintained to capture all process wastewater and manure, plus all the
storm water runoff from the 25-year, 24-hour storm.
The proposed BPT limitations also include specific requirements on
the application of manure and wastewater to land that is owned or under
the operational control of the CAFO. EPA is proposing to require that
CAFOs apply their manure at a rate calculated to meet the requirements
of the crop for either nitrogen or phosphorus (depending on the soil
conditions for phosphorus). Livestock manure tends to be phosphorus
rich, meaning that if manure is applied to meet the nitrogen
requirements of a crop, then phosphorus is being applied at rates
higher than needed by the crop. Repeated application of manure on a
nitrogen basis may build up phosphorus levels in
[[Page 2964]]
the soil, and potentially result in saturation, thus contributing to
the contamination of surface waters through erosion, snow melt and
rainfall events. Therefore, EPA is also proposing that manure must be
applied to cropland at rates not to exceed the crop requirements for
nutrients and the ability of the soil to absorb any excess phosphorus.
BPT establishes specific record keeping requirements associated with
ensuring the achievement of the zero discharge limitation for the
production area and that the application of manure and wastewater is
done in accordance with land application requirements. EPA also
proposes to require the CAFO operator to maintain records of any excess
manure that is transported off-site.
BAT limitations for the beef and dairy subcategories would include
all of the BPT limitations described above and, in addition, would
require CAFOs to achieve zero discharge to ground water beneath the
production area that has a direct hydrologic connection to surface
water. In addition, the proposed BAT requirements for the swine, veal
and poultry subcategories would eliminate the provision for overflow in
the event of a chronic or catastrophic storm. CAFOs in the swine, veal
and poultry subcategories typically house their animals under roof
instead of in open areas, thus avoiding or minimizing the runoff of
contaminated storm water and the need to contain storm water.
EPA is also proposing to revise New Source Performance Standards
(NSPS) based on the same technology requirements as BAT for the beef
and dairy subcategories. For the swine, veal and poultry subcategories,
EPA proposes revised NSPS based on the same technology as BAT with the
additional requirement that there be no discharge of pollutants through
ground water beneath the production area that has a direct hydrological
connection to surface waters. Both the BAT and NSPS requirements have
the same land application and record keeping requirements as proposed
for BPT.
Today's proposal would make several other changes to the existing
regulation, which would:
require the CAFO operator to develop a Permit Nutrient
Plan for managing manure and wastewater at both the production area and
the land application area;
require certain record keeping, reporting, and monitoring;
revise the definition of an animal feeding operation (AFO)
to more clearly exclude areas such as pastures and rangeland that
sustain crops or forage during the entire time that animals are
present;
eliminate the mixed-animal type calculation for
determining which AFOs are CAFOs; and
require permit authorities to include the following
conditions in permits to:
(1) require retention of a permit until proper facility closure;
(2) establish the method for operators to calculate the allowable
manure application rate; (3) specify restrictions on timing and methods
of application of manure and wastewater to assure use for an
agricultural purpose (e.g., certain applications to frozen, snow
covered or saturated land) to prevent impairment of water quality; (4)
address risk of contamination via groundwater with a direct
hydrological connection to surface water; (5) address the risk of
improper manure application off-site by either requiring that the CAFO
operator obtain from off-site recipients a certification that they are
land applying CAFO manure according to proper agricultural practices or
requiring the CAFO to provide information to manure recipients and keep
appropriate records of off-site transfers, or both; and (6) establish
design standards to account for chronic storm events.
Today's proposal would also:
clarify EPA's interpretation of the agricultural storm
water exemption and its implications for land application of manure
both at the CAFO and off-site; and
clarify application of the CWA to dry weather discharges
at AFOs.
EPA is seeking comment on the entire proposal. Throughout the
preamble, EPA identifies specific components of the proposed rule on
which comment is particularly sought.
III. Background
A. The Clean Water Act
Congress passed the Federal Water Pollution Control Act (1972),
also known as the Clean Water Act (CWA), to ``restore and maintain the
chemical, physical, and biological integrity of the nation's waters.''
(33 U.S.C. Sec. 1251(a)). The CWA establishes a comprehensive program
for protecting our nation's waters. Among its core provisions, the CWA
prohibits the discharge of pollutants from a point source to waters of
the U.S. except as authorized by a National Pollutant Discharge
Elimination System (NPDES) permit. The CWA establishes the NPDES permit
program to authorize and regulate the discharges of pollutants to
waters of the U.S. EPA has issued comprehensive regulations that
implement the NPDES program at 40 CFR Part 122. The CWA also provides
for the development of technology-based and water quality-based
effluent limitations that are imposed through NPDES permits to control
discharges of pollutants.
1. The National Pollutant Discharge Elimination System (NPDES) Permit
Program
Under the NPDES permit program, all point sources that directly
discharge pollutants to waters of the U.S. must apply for a NPDES
permit and may only discharge pollutants in compliance with the terms
of that permit. Such permits must include any nationally established,
technology based effluent discharge limitations (i.e., effluent
guidelines) (discussed below, in subsection III.A.2). In the absence of
national effluent limitations, NPDES permit writers must establish
technology based limitations and standards on a case-by-case basis,
based on their ``best professional judgement (BPJ).''
Water quality-based effluent limits also are included in a permit
where technology-based limits are not sufficient to ensure compliance
with State water quality standards that apply to the receiving water or
where required to implement a Total Maximum Daily Load (TMDL). Permits
may also include specific best management practices to achieve effluent
limitations and standards, typically included as special conditions. In
addition, NPDES permits normally include monitoring and reporting
requirements, and standard conditions (i.e., conditions that apply to
all NPDES permits, such as the duty to properly operate and maintain
equipment and treatment systems).
NPDES permits may be issued by EPA or a State, Territory, or Tribe
authorized by EPA to implement the NPDES program. Currently, 43 States
and the Virgin Islands are authorized to administer the base NPDES
program (the base program includes the federal requirements applicable
to AFOs and CAFOs). Alaska, Arizona, the District of Columbia, Idaho,
Maine, Massachusetts, New Hampshire, and New Mexico are not currently
authorized to implement the NPDES program. In addition, Oklahoma, while
authorized to administer the NPDES program, does not have CAFO
regulatory authority. No tribe is currently authorized.
A NPDES permit may be either an individual permit tailored for a
single facility or a general permit applicable to multiple facilities
within a specific category. Prior to the issuance of an individual
permit, the owner or operator submits a permit application with
facility-specific information to the
[[Page 2965]]
permit authority, who reviews the information and prepares a draft
permit. The permit authority prepares a fact sheet explaining the draft
permit, and publishes the draft permit and fact sheet for public review
and comment. Following consideration of public comments by the permit
authority, a final permit is issued. Specific procedural requirements
apply to the modification, revocation and reissuance, and termination
of a NPDES permit. NPDES permits are subject to a maximum 5-year term.
General NPDES permits are available to address a category of
discharges that involve similar operations with similar wastes. General
permits are not developed based on facility-specific information.
Instead, they are developed based on data that characterize the type of
operations being addressed and the pollutants being discharged. Once a
general permit is drafted, it is published for public review and
comment accompanied by a fact sheet that explains the permit. Following
EPA or State permit authority consideration of public comments, a final
general permit is issued. The general permit specifies the type or
category of facilities that may obtain coverage under the permit. Those
facilities that fall within this category then must submit a ``notice
of intent'' (NOI) to be covered under the general permit to gain permit
coverage. [Under 40 CFR 122.28(b)(2)(vi), the permit authority also may
notify a discharger that it is covered under a general permit even
where that discharger has not submitted a notice of intent to be
covered by the permit.] EPA anticipates that the Agency and authorized
States will use general NPDES permits to a greater extent than
individual permits to address CAFOs.
2. Effluent Limitation Guidelines and Standards
Effluent limitation guidelines and standards (which we also refer
to today as ``effluent guidelines'' or ``ELG'') are national
regulations that establish limitations on the discharge of pollutants
by industrial category and subcategory. These limitations are
subsequently incorporated into NPDES permits. The effluent guidelines
are based on the degree of control that can be achieved using various
levels of pollution control technology, as outlined below. The effluent
guidelines may also include non-numeric effluent limitations in the
form of best management practices requirements or directly impose best
management practices as appropriate.
a. Best Practicable Control Technology Currently Available (BPT)--
Section 304(b)(1) of the CWA. In the guidelines for an industry
category, EPA defines BPT effluent limits for conventional, toxic, and
non-conventional pollutants. In specifying BPT, EPA looks at a number
of factors. EPA first considers the cost of achieving effluent
reductions in relation to the effluent reduction benefits. The Agency
also considers the age of the equipment and facilities, the processes
employed and any required process changes, engineering aspects of the
control technologies, non-water quality environmental impacts
(including energy requirements), and such other factors as the Agency
deems appropriate (CWA 304(b)(1)(B)). Traditionally, EPA establishes
BPT effluent limitations based on the average of the best performances
of facilities within the industry of various ages, sizes, processes or
other common characteristics. Where existing performance is uniformly
inadequate, EPA may require higher levels of control than currently in
place in an industrial category if the Agency determines that the
technology can be practically applied.
b. Best Available Technology Economically Achievable (BAT)--Section
304(b)(2) of the CWA. In general, BAT effluent limitations represent
the best existing economically achievable performance of direct
discharging plants in the industrial subcategory or category. The
factors considered in assessing BAT include the cost of achieving BAT
effluent reductions, the age of equipment and facilities involved, the
processes employed, engineering aspects of the control technology,
potential process changes, non-water quality environmental impacts
(including energy requirements), and such factors as the Administrator
deems appropriate. The Agency retains considerable discretion in
assigning the weight to be accorded to these factors. An additional
statutory factor considered in setting BAT is economic achievability.
Generally, the achievability is determined on the basis of the total
cost to the industrial subcategory and the overall effect of the rule
on the industry's financial health. BAT limitations may be based on
effluent reductions attainable through changes in a facility's
processes and operations. As with BPT, where existing performance is
uniformly inadequate, BAT may be based on technology transferred from a
different subcategory within an industry or from another industrial
category. BAT may be based on process changes or internal controls,
even when these technologies are not common industry practice.
c. Best Conventional Pollutant Control Technology (BCT)--Section
304(b)(4) of the CWA. The 1977 amendments to the CWA required EPA to
identify effluent reduction levels for conventional pollutants
associated with BCT technology for discharges from existing industrial
point sources. BCT is not an additional limitation, but replaces Best
Available Technology (BAT) for control of conventional pollutants. In
addition to other factors specified in Section 304(b)(4)(B), the CWA
requires that EPA establish BCT limitations after consideration of a
two part ``cost-reasonableness'' test. EPA explained its methodology
for the development of BCT limitations in July 1986 (51 FR 24974).
Section 304(a)(4) designates the following as conventional pollutants:
biochemical oxygen demand (BOD5), total suspended solids
(TSS), fecal coliform, pH, and any additional pollutants defined by the
Administrator as conventional. The Administrator designated oil and
grease as an additional conventional pollutant on July 30, 1979 (44 FR
44501).
d. New Source Performance Standards (NSPS)--Section 306 of the CWA.
NSPS reflect effluent reductions that are achievable based on the best
available demonstrated control technology. New facilities have the
opportunity to install the best and most efficient production processes
and wastewater treatment technologies. As a result, NSPS should
represent the greatest degree of effluent reduction attainable through
the application of the best available demonstrated control technology
for all pollutants (i.e., conventional, non-conventional, and priority
pollutants). In establishing NSPS, EPA is directed to take into
consideration the cost of achieving the effluent reduction and any non-
water quality environmental impacts and energy requirements.
B. History of EPA Actions to Address CAFOs
EPA's regulation of wastewater and manure from CAFOs dates to the
1970s. The existing NPDES CAFO regulations were issued on March 18,
1976 (41 FR 11458). The existing national effluent limitations
guideline and standards for feedlots were issued on February 14, 1974
(39 FR 5704).
By 1992, it became apparent that the regulation and permitting of
CAFOs needed review due to changes in the livestock industry,
specifically the consolidation of the industry into fewer, but larger
operations. In 1992, the Agency established a workgroup
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composed of representatives of State agencies, EPA regional staff and
EPA headquarters staff to address issues related to CAFOs. The
workgroup issued The Report of the EPA/State Feedlot Workgroup in 1993.
One of the workgroup's recommendations was that the Agency should
provide additional guidance on how CAFOs are regulated under the NPDES
permit program. The Agency issued such guidance, entitled Guide Manual
On NPDES Regulations For Concentrated Animal Feeding Operations, in
December 1995.
Massive spills of hog manure (see Section V.B.1.c) and Pfiesteria
outbreaks (see Section V.C.1.a.), continued industry consolidation, and
increased public awareness of the potential environmental and public
health impacts of animal feeding operations resulted in EPA taking more
comprehensive actions to improve existing regulatory and voluntary
programs. In 1997, dialogues were initiated between EPA and the poultry
and pork livestock sectors. On December 12, 1997, the Pork Dialogue
participants, including representatives from the National Pork
Producers Council (NPPC) and officials from EPA, U.S. Department of
Agriculture (USDA), and several States, issued a Comprehensive
Environmental Framework for Pork Production Operations. Continued
discussions between EPA and the NPPC led to development of a Compliance
Audit Program Agreement (CAP Agreement) that is available to any pork
producer who participates in NPPC's environmental assessment program.
The CAP Agreement for pork producers was issued by the Agency on
November 24, 1998. Under the agreement, pork producers that voluntarily
have their facilities inspected are eligible for reduced penalties for
any CWA violations discovered and corrected. The Poultry Dialogue
produced a report in December 1998 that established a voluntary program
focused on promoting protection of the environment and water quality
through implementation of litter management plans and other actions:
Environmental Framework and Implementation Strategy: A Voluntary
Program Developed and adopted by the Poultry Industry, Adopted at the
December 8-9, 1998 meeting of the Poultry Industry Environmental
Dialogue (U.S. Poultry and Egg Association).
President Clinton and Vice President Gore announced the Clean Water
Action Plan (CWAP) on February 19, 1998. The CWAP describes the key
water quality problems our nation faces today and suggests both a broad
plan and specific actions for addressing these problems. The CWAP
indicated that polluted runoff is the greatest source of water quality
problems in the United States today and that stronger polluted runoff
controls are needed. The CWAP goes on to state that one important
aspect of such controls is the expansion of CWA permit controls,
including those applicable to large facilities such as CAFOs.
The CWAP included two key action items that address animal feeding
operations (AFOs). First, it stated that EPA should publish and, upon
considering public comments, implement an AFO strategy for important
and necessary EPA actions on standards and permits. EPA published a
Draft Strategy for Addressing Environmental and Public Health Impacts
from Animal Feeding Operations in March 1998 (draft AFO Strategy). In
accordance with EPA's draft AFO Strategy, EPA's Office of Enforcement
and Compliance Assurance (OECA) also issued the Compliance Assurance
Implementation Plan for Animal Feeding Operations in March 1998. This
plan describes compliance and enforcement efforts being undertaken to
ensure that CAFOs comply with existing CWA regulations. Second, the
CWAP stated that EPA and USDA should jointly develop a unified national
strategy to minimize the water quality and public health impacts of
AFOs. EPA and USDA jointly published a draft Unified National Strategy
for Animal Feeding Operations (hereinafter Unified National AFO
Strategy) on September 21, 1998 and, after sponsoring and participating
in 11 public listening sessions and considering public comments on the
draft strategy, published a final Unified National AFO Strategy on
March 9, 1999. This joint strategy was generally consistent with and
superceded EPA's draft AFO Strategy.
The Unified National AFO Strategy establishes national goals and
performance expectations for all AFOs. The general goal is for AFO
owners and operators to take actions to minimize water pollution from
confinement facilities and land where manure is applied. To accomplish
this goal, the AFO Strategy established a national performance
expectation that all AFOs should develop and implement technically
sound, economically feasible, and site-specific comprehensive nutrient
management plans (CNMPs) to minimize impacts on water quality and
public health.
The Unified National AFO Strategy identified seven strategic issues
that should be addressed to better resolve concerns associated with
AFOs. These include: (1) fostering CNMP development and implementation;
(2) accelerating voluntary, incentive-based programs; (3) implementing
and improving the existing regulatory program; (4) coordinating
research, technical innovation, compliance assistance, and technology
transfer; (5) encouraging industry leadership; (6) increasing data
coordination; and (7) establishing better performance measures and
greater accountability. Today's proposed rule primarily addresses
strategic issue three: implementing and improving the existing AFO
regulatory program.
The Unified National AFO Strategy observed that, for the majority
of AFOs (estimated in the AFO Strategy as 95 percent), voluntary
efforts founded on locally led conservation, education, and technical
and financial assistance would be the principal approach for assisting
owners and operators in developing and implementing site-specific CNMPs
and reducing water pollution and public health risks. Future regulatory
programs would focus permitting and enforcement priorities on high risk
operations, which were expected to constitute the remaining 5 percent.
EPA estimates that today's proposal would result in permit coverage for
approximately 7 percent of AFOs under the two-tier structure, and
between 4.5 percent and 8.5 percent of AFOs under the three-tier
structure.
Following publication of the Unified National AFO Strategy, EPA
issued on August 6, 1999 the Draft Guidance Manual and Example NPDES
Permit for CAFOs for a 90-day public comment period. EPA undertook
development of this new guidance manual in order to provide permit
writers with improved guidance on applying the existing regulations to
a changing industry. While the guidance manual has not been finalized,
many of the issues discussed in the draft guidance manual are also
addresses in today's preamble. EPA expects to issue final, revised
permitting guidance to reflect the revised CAFO regulations when they
are published in final form.
C. What Requirements Apply to CAFOs?
The discussion below provides an overview of the scope and
requirements imposed under the existing NPDES CAFO regulations and
feedlot effluent limitations guidelines. It also explains the
relationship of these two regulations, and summarizes other federal and
State regulations that potentially affect AFOs.
[[Page 2967]]
1. What are the Scope and Requirements of the Existing NPDES
Regulations for CAFOs?
Under existing 40 CFR 122.23, an operation must be defined as an
animal feeding operation (AFO) before it can be defined as a
concentrated animal feeding operation (CAFO). The term ``animal feeding
operation'' is defined in EPA regulations as a ``lot or facility''
where animals ``have been, are, or will be stabled or confined and fed
or maintained for a total of 45 days or more in any 12 month period and
crops, vegetation[,] forage growth, or post-harvest residues are not
sustained in the normal growing season over any portion of the lot or
facility.'' This definition is intended to enable the NPDES authorized
permitting authority to regulate facilities where animals are stabled
or confined and waste is generated.
Once a facility meets the AFO definition, its size, based upon the
total numbers of animals confined, is a key factor in determining
whether it is a CAFO. To define these various livestock sectors, EPA
established the concept of an ``animal unit'' (AU), which varies
according to animal type. Each livestock type, except poultry, is
assigned a multiplication factor to facilitate determining the total
number of AU at a facility with more than one animal type. These
multiplication factors are as follows: Slaughter and feeder cattle--
1.0, Mature dairy cattle--1.4, Swine weighing over 25 kilograms
(approximately 55 pounds)--0.4, Sheep--0.1, Horses--2.0. There are
currently no animal unit conversions for poultry operations. The
regulations, however, define the total number of animals (subject to
waste handling technology restrictions) for specific poultry types that
make these operations subject to the regulation. (40 CFR Part 122,
Appendix B).
Under the existing regulations, an animal feeding operation is a
concentrated animal feeding operation if it meets the regulatory CAFO
definition or if it is designated as a CAFO. The regulations
automatically define an AFO to be a CAFO if either more than 1,000 AU
are confined at the facility, or more than 300 AU are confined at the
facility and: (1) pollutants are discharged into navigable waters
through a manmade ditch, flushing system, or other similar man-made
device; or (2) pollutants are discharged directly into waters that
originate outside of and pass over, across, or through the facility or
come into direct contact with the confined animals. However, no animal
feeding operation is defined as a CAFO if it discharges only in the
event of a 25-year, 24-hour storm event (although it sill may be
designated as a CAFO). Although they are not automatically defined as a
CAFO, facilities still may be designated as a CAFO even if they
discharge only in a 25-year, 24-hour storm event.
An AFO can also become a CAFO through designation. The NPDES
permitting authority may, on a case-by-case basis, after conducting an
on-site inspection, designate any AFO as a CAFO based on a finding that
the facility ``is a significant contributor of pollution to the waters
of the United States.'' (40 CFR 122.23(c)). Pursuant to 40 CFR
122.23(c)(1)(i)-(v) the permitting authority shall consider several
factors making this determination, including: (1) the size of the
operation, and amount of waste reaching waters of the U.S.; (2) the
location of the operation relative to waters of the U.S.; (3) the means
of conveyance of animal waste and process waste waters into waters of
the U.S.; and (4) the slope, vegetation, rainfall and other factors
affecting frequency of discharge. A facility with 300 animal units or
less, however, may not be designated as a CAFO unless pollutants are
discharged into waters of the U.S. through a man-made ditch, flushing
system, or other similar man-made device, or are discharged directly
into waters of the U.S. which originate outside of the facility and
pass over, across or through the facility or otherwise come into direct
contact with the animals confined in the operation.
Once defined or designated as a CAFO, the operation is subject to
NPDES permitting. As described above, a permit contains the specific
technology-based effluent limitations (whether based on the effluent
guidelines or BPJ); water quality-based limits if applicable; specific
best management practices; monitoring and reporting requirements; and
other standard NPDES conditions.
2. What are the Scope and Requirements of the Existing Feedlot Effluent
Guidelines?
In 1974, EPA promulgated effluent limitations guidelines applicable
to CAFOs (40 CFR Part 412) and established in those regulations the
technology-based effluent discharge standards for the facilities
covered by the guidelines. The effluent guidelines for the feedlots
point source category have two subparts: Subpart B for ducks, and
Subpart A for all other feedlot animals. Under the existing regulation,
Subpart A covers: beef cattle; dairy cattle; swine; poultry; sheep; and
horses. Further, the effluent guidelines apply only to facilities with
1,000 AU or greater. Today's revisions to the effluent guidelines
affect only the guidelines for the beef, dairy, swine, poultry and veal
subcategories, while the NPDES revisions are applicable to all confined
animal types.
The current feedlot effluent guidelines based on BAT prohibit
discharges of process wastewater pollutants to waters of the U.S.
except when chronic or catastrophic storm events cause an overflow from
a facility designed, constructed, and operated to hold process-
generated wastewater plus runoff from a 25-year, 24-hours storm event.
Animal wastes and other wastewater that must be controlled include: (1)
spillage or overflow from animal or poultry watering systems, washing,
cleaning, or flushing pens, barns, manure pits, or other feedlot
facilities, direct contact swimming, washing, or spray cooling of
animals, and dust control; and (2) precipitation (rain or snow) which
comes into contact with any manure, litter, or bedding, or any other
raw material or intermediate or final material or product used in or
resulting from the production of animals or poultry or direct products
(e.g., milk or eggs). 40 CFR 412.11.
As described above, in those cases where the feedlot effluent
guidelines do not apply to a CAFO (i.e., the operation confines fewer
than 1,000 animal units), the permit writer must develop, for inclusion
in the NPDES permit, technology-based limitations based on best
professional judgement (BPJ).
3. What Requirements May be Imposed on AFOs Under the Coastal Zone Act
Reauthorization Amendments of 1990 (CZARA)?
In the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA),
Congress required States with federally-approved coastal zone
management programs to develop and implement coastal nonpoint pollution
control programs. Thirty-three (33) States and Territories currently
have federally approved Coastal Zone Management programs. Section
6217(g) of CZARA called for EPA, in consultation with other federal
agencies, to develop guidance on ``management measures'' for sources of
nonpoint source pollution in coastal waters. In January 1993, EPA
issued its Guidance Specifying Management Measures for Sources of
Nonpoint Pollution in Coastal Waters which addresses five major source
categories of nonpoint pollution: urban runoff, agriculture runoff,
forestry runoff, marinas and recreational boating, and
hydromodification.
[[Page 2968]]
Within the agriculture runoff nonpoint source category, the EPA
guidance specifically included management measures applicable to all
new and existing ``confined animal facilities.'' The guidance
identifies which facilities constitute large and small confined animal
facilities based solely on the number of animals or animal units
confined (the manner of discharge is not considered). Under the CZARA
guidance: a large beef feedlot contains 300 head or more, a small
feedlot between 50-299 head; a large dairy contains 70 head or more, a
small dairy between 20-69 head; a large layer or broiler contains
15,000 head or more, a small layer or broiler between 5,000-14,999
head; a large turkey facility contains 13,750 head or more, a small
turkey facility between 5,000-13,749 head; and a large swine facility
contains 200 head or more, a small swine facility between 100-199 head.
The thresholds in the CZARA guidance for identifying large and
small confined animal facilities are lower than those established for
defining CAFOs under the current NPDES regulations. Thus, in coastal
States the CZARA management measures potentially apply to a greater
number of small facilities than the existing CAFO definition. Despite
the fact that both the CZARA management measures for confined animal
facilities and the NPDES CAFO regulations address similar operations,
these programs do not overlap or conflict with each other. Any CAFO
facility, defined by 40 CFR Part 122, Appendix B, that has a NPDES CAFO
permit is exempt from the CZARA program. If a facility subject to CZARA
management measures is later designated a CAFO by a NPDES permitting
authority, the facility is no longer subject to CZARA. Thus, an AFO
cannot be subject to CZARA and NPDES permit requirements at the same
time.
EPA's CZARA guidance provides that new confined animal facilities
and existing large confined animal facilities should limit the
discharge of facility wastewater and runoff to surface waters by
storing such wastewater and runoff during storms up to and including
discharge caused by a 25-year, 24-hour frequency storm. Storage
structures should have an earthen or plastic lining, be constructed
with concrete, or constitute a tank. All existing small facilities
should design and implement systems that will collect solids, reduce
contaminant concentrations, and reduce runoff to minimize the discharge
of contaminants in both facility wastewater and in runoff caused by
storms up to and including a 25-year, 24-hour frequency storm. Existing
small facilities should substantially reduce pollutant loadings to
ground water. Both large and small facilities should also manage
accumulated solids in an appropriate waste utilization system. Approved
State CZARA programs have management measures in conformity with this
guidance and enforceable policies and mechanisms as necessary to assure
their implementation.
In addition to the confined animal facility management measures,
the CZARA guidance also includes a nutrient management measure that is
intended to be applied by States to activities associated with the
application of nutrients to agricultural lands (including the
application of manure). The goal of this management measure is to
minimize edge of field delivery of nutrients and minimize the leaching
of nutrients from the root zone.
The nutrient management measures provide for the development,
implementation, and periodic updating of a nutrient management plan.
Such plans should address: application of nutrients at rates necessary
to achieve realistic crop yields; improved timing of nutrient
application; and the use of agronomic crop production technology to
increase nutrient use efficiency. Under this management measure,
nutrient management plans include the following core components: farm
and field maps showing acreage, crops, and soils; realistic yield
expectations for the crops to be grown; a summary of the nutrient
resources available to the producer; an evaluation of field limitations
based on environmental hazards or concerns; use of the limiting
nutrient concept to establish the mix of nutrient sources and
requirements for the crop based on realistic crop expectations;
identification of timing and application methods for nutrients; and
provisions for proper calibration and operation of nutrient application
equipment.
4. How Are CAFOs Regulated By States?
NPDES permits may be issued by EPA or a State authorized by EPA to
implement the NPDES program. Currently, 43 States and the Virgin
Islands are authorized to administer the NPDES program. Oklahoma,
however, has not been authorized to administer the NPDES program for
CAFOs.
To become an authorized NPDES state, the State's requirements must,
at a minimum, be as stringent as the requirements imposed under the
federal NPDES program. States, however, may impose requirements that
are broader in scope or more stringent than the requirements imposed at
the federal level. In States not authorized to implement the NPDES
program, the appropriate EPA Regional office is responsible for
implementing the program.
State efforts to control pollution from CAFOs have been
inconsistent to date for a variety of reasons. Many States have only
recently focused attention on the environmental challenges posed by the
emergence of increasing consolidation of CAFOs into larger and larger
operations. Others have traditionally viewed AFOs as agriculture, and
the reluctance to regulate agriculture has prevented programs from
keeping pace with a changing industry. Many states have limited
resources for identifying which facilities are CAFOs, or which may be
inappropriately claiming the 25-year, 24-hour storm permit exclusion.
Some states with a large number of broiler and laying operations do not
aggressively try to permit these facilities under NPDES because the
technology requirements for these operations in the existing regulation
are outdated.
Another reason States may not have issued NPDES permits to CAFOs is
the concern over potentially causing operations to lose cost-share
money available under EPA's Section 319 Nonpoint Source Program and
other assistance under USDA's Environmental Quality Incentive Program
(EQIP). Once a facility is considered a point source under NPDES, the
operation is not eligible for cost sharing under the Section 319
nonpoint source program. The USDA EQIP program, however, is available
to most facilities, and being a permitted CAFO is not a reason for
exclusion from the EQIP program. Although EQIP funds may not be used to
pay for construction of storage facilities at operations with greater
than 1,000 USDA animal units (USDA uses a different definition of
animal units than EPA); EQIP is available to these facilities for
technical assistance and financial assistance for other practices.
To gather information on State activities concerning AFOs, EPA
assembled information into a report entitled, ``State Compendium:
Programs and Regulatory Activities Related to Animal Feeding
Operations, Final Report,'' dated December 1999, and continues to
update information concerning state operations (see ``Profile of NPDES
Permits and CNMP Permit Requirements for CAFOs,'' updated
periodically). The following discussion draws on information from these
reports.
EPA estimates that, under the existing EPA regulations,
approximately 9,000 operations with more than 1,000 AU are CAFOs and
should be permitted, and
[[Page 2969]]
approximately 4,000 operations with 300 AU to 1,000 AU should be
permitted. However, only an estimated 2,520 CAFOs are currently covered
under either a general permit or an individual permit. The 43 states
authorized to implement the NPDES program for CAFOs have issued
coverage for approximately 2,270 facilities, of which about 1,150
facilities are under general permits and about 1,120 facilities are
under individual permits. Of these states, 32 states administer their
NPDES CAFO program in combination with some other State permit,
license, or authorization program. Often, this additional State
authorization is a construction or operating permit. Eight of the
states regulate CAFOs exclusively under their State NPDES authority,
while three others have chosen to regulate CAFOs solely under State
non-NPDES programs. EPA information indicates that, as of December,
1999, seventeen of the 43 states authorized to administer the NPDES
program for CAFOs have never issued an NPDES permit to a CAFO.
Of the seven states not authorized to administer the NPDES program,
four rely solely on federal NPDES permits to address CAFOs. As of
December 1998, EPA has issued coverage for approximately 250 facilities
under general NPDES permits.
Virtually all NPDES authorized states use the federal CAFO
definition in their State NPDES CAFO program. Most states also use the
federal definition for State non-NPDES CAFO programs. Five States,
however, have developed unique definitions for their non-NPDES
livestock regulatory programs that do not follow the federal
definition. These five States typically base their definition on the
number of animals confined, weight of animals and design capacity of
waste control system, or gross income of agricultural operation. For
example, Alabama's new general State NPDES permit covers all operations
with at least 250 animal units. Similarly, Minnesota issues State (non-
NPDES) feedlot permits to facilities with more than 10 animal units.
Minnesota also issues individual NPDES permits to CAFOs as defined
under the existing federal regulations.
The regulation of CAFOs is challenging, in part, because of the
large number of facilities across the country. There are approximately
376,000 AFOs. Regulating, for example, 5 percent of AFOs would result
in some 18,800 permittees. One way of reducing the administrative
burden associated with permitting such large numbers of facilities is
through the use of general permits. NPDES regulations provide that
general permits may be issued to cover a category of dischargers that
involves similar operations with similar wastes. Operations subject to
the same effluent limitations and operating conditions, and requiring
similar monitoring are the types of facilities most appropriately
regulated under a general permit. EPA and some authorized States are
using general permits to regulate CAFOs, and this trend appears to be
increasing.
As mentioned, seventeen of the 43 States authorized to issue NPDES
CAFO permits have never issued an NPDES permit to a CAFO, although many
regulate CAFOs under non-NPDES programs. Under current regulations, an
animal feeding operation that discharges only in the event of a 25-
year, 24-hour storm event is not considered to meet the definition of a
CAFO (although it may still be designated as a CAFO). EPA believes that
many of these facilities have in fact discharged in circumstance other
than the 25-year/24-hour storm and should be required to obtain a
permit.
The number of non-NPDES permits issued to AFOs greatly exceeds the
number of NPDES permits issued. Although the information may be
incomplete on the number of state permits issued, more than 45,000 non-
NPDES permits or formal authorizations are known to have been issued
through state AFO programs. The non-NPDES State authorizations often
are only operating permits or approvals required for construction of
waste disposal systems. While some impose terms and conditions on
discharges from the CAFO, EPA believes that many would not meet the
standards for approval as NPDES permits. Because these are not NPDES
permits, none meet the requirement for federal enforceability.
Minnesota alone has issued nearly 25,000 State feedlot permits.
Kansas has issued more than 2,400 State permits, of which 1,500 have
been to facilities with more than 300 animal units. Indiana has issued
more than 4,000 letters of approval to AFOs within the State. South
Carolina has issued 2,000 construction permits.
With regard to the discharge standards included in permits, 28
NPDES authorized States have adopted the federal feedlot effluent
guidelines, while five authorized States use a more stringent limit.
These more stringent limits partially or totally prohibit discharges
related to storm events. For example, Arkansas regulations prohibit
discharges from liquid waste management systems, including those
resulting from periods of precipitation greater than the 25-year, 24-
hour storm event. In addition, California and North Carolina rules
provide for no discharge from new waste control structures even during
100 year storms. Numerous State CAFO permit programs also impose
requirements that are broader in scope than the existing federal CAFO
regulations.
Twenty-two States have adopted laws that their environmental
regulations cannot be more restrictive than the specific requirements
in the federal regulations. Should any of these states experience
environmental problems with CAFOs, they must rely on appropriate state
regulations no more stringent than the federal rules.
Thirty-four States explicitly impose at least some requirements
that address land application of manure and wastewater as part of
either their NPDES or non-NPDES program. The most common requirements
among these States is that CAFO manure and wastewater, when managed
through land application, be land applied in accordance with agronomic
rates and that the operator develop and use a waste management plan.
Although some States do not address how agronomic rates should be
determined, many base it on the nitrogen needs of crops, while some
require consideration of phosphorus as well. The complexity of waste
management plans also varies between states. Some states have very
detailed requirements for content of waste management plans, while
others do not. Generally, CAFO operators are asked to address estimates
of annual nutrient value of waste, schedules for emptying and applying
wastes, rates and locations for applying wastes, provisions for
determining agronomic rates, and provisions for conducting required
monitoring and reporting.
Although data was not available for all States, State agency staff
dedicated to AFOs has increased over the last five years. In general,
State staff dedicated to AFOs is relatively small, with average staff
numbers being below four full-time employees. Several States do not
have any staff specifically assigned to manage water quality impacts
from AFOs. However, States such as Arkansas, Minnesota, Wisconsin, and
Nebraska doubled their staff commitment to AFOs within the last five
years. The most notable increases in State staff assigned to address
AFOs were in Iowa and North Carolina. Kansas, Minnesota, and North
Carolina have the largest AFO staffs in the country, with each having
more than 20 full time employees.
One indication that States have an increasing interest in expanding
their efforts to control water quality impacts from AFOs is the
promulgation of new
[[Page 2970]]
State AFO regulations and program initiatives. At least twelve states
have developed new regulations related to AFOs since 1996. (AL, IN, KS,
KY, MD, MS, NC, OK, PA, VT, WA, WY). Kansas, Kentucky, North Carolina,
and Wyoming passed legislation regarding swine facilities, with
Kentucky and North Carolina imposing moratoriums on the expansion of
hog AFOs until State management/regulatory plans could be developed.
Similarly, Mississippi also has imposed a 2-year moratorium on any new
CAFOs. Alabama's recent efforts include developing an NPDES general
permitting rule and a Memorandum of Agreement with EPA outlining State
agency responsibilities as they relate to CAFOs. Washington's Dairy Law
subjects all dairy farms with more than 300 animal units to permitting
and requires each facility to develop nutrient management plans
approved by the National Conservation Resource Service. Indiana's
Confined Feeding Control Law also requires AFOs to develop waste
management plans and receive State approval for operating AFOs.
In conclusion, the implementation of CAFO programs varies from
state-to-state, as does the implementation of NPDES programs for CAFOs
by NPDES authorized states. As animal production continues to become
more industrialized nationwide, a coherent and systematic approach to
implementing minimum standards is needed to ensure consistent
protection of water quality. Today's proposal will continue to promote
a systematic approach to establishing industry standards that are
protective of human health and the environment.
D. How Do Today's Proposed Revisions Compare to the Unified National
AFO Strategy?
As described in section III.B, on March 9, 1999, EPA and the U.S.
Department of Agriculture jointly issued the Unified National Strategy
for Animal Feeding Operations (Unified AFO Strategy), which outlined
USDA and EPA's plans for achieving better control of pollution from
animal agriculture under existing regulations. The following is a
comparison chart that illustrates how the proposed rule compares to the
Unified AFO Strategy. Table 3-1 compares the proposed CAFO rule
requirements with the Unified AFO Strategy and identifies whether the
proposed requirements are consistent with or not addressed by the
Unified AFO Strategy. The table further shows that, overall, the
proposed rule meets the intent of the Unified AFO Strategy.
Table 3-1.--Proposed Rule/Unified National AFO Strategy Comparison
----------------------------------------------------------------------------------------------------------------
Not
Consistent addressed
Summary of proposed rule with Unified in Unified Comment
AFO AFO
Strategy Strategy
----------------------------------------------------------------------------------------------------------------
Proposed Revisions to NPDES Regulations
----------------------------------------------------------------------------------------------------------------
Definition of AFO (122.23(a)(2))--AFO The Unified AFO Strategy states CNMPs
includes land application area; Clarifies should address land application of
crop language. manure. (Sec. 3.1 and 3.2)
Crop language not explicitly
addressed in Unified AFO Strategy.
Definition of CAFO (122.23(a)(3))--Change ............ Alternative thresholds not explicitly
1,000 animal unit threshold to 500. addressed in Unified AFO Strategy,
although Strategy does state EPA
will explore alternative ways of
defining CAFOs. (Sec. 5, Issue 3,
Item 2.B.).
The Unified AFO Strategy states that
regulatory revisions will consider
risk, burden, statutory
requirements, enforceability, and
ease of implementation (i.e.,
clarity of requirements). (Sec. 5,
Issue 3, Item 2).
The Unified AFO Strategy states that
5 percent of the AFOs will be
subject to the regulatory program,
however, this estimate is provided
for the existing regulatory program
(see Figure 2). No specific
percentage is specified in the
Strategy for the revised
regulations.
Definition of CAFO (122.23(a)(3))--Include ............ The Unified AFO Strategy states that
dry poultry operations. in revising regulations EPA intends
to consider defining ``...large
poultry operations, consistent with
the size for other animal sectors,
as CAFOs, regardless of the type of
watering or manure handling
system.'' (Sec. 5, Issue 3, Item
2.B.).
Definition of CAFO (122.23(a)(3))--Include ............ Immature animals not explicitly
immature animals. addressed in Unified AFO Strategy.
Definition of CAFO (122.23)--Removes 25 year/ ............ The Unified AFO Strategy states EPA
24-hour storm provision from definition of will consider ``requiring CAFOs to
CAFO. have an NPDES permit even if they
only discharge during a 25-year, 24-
hour or larger storm event.'' (Sec.
5, Issue 3, Item 2.B.).
Definition of Operation (122.23(a)(5))-- ............ The Unified AFO Strategy states EPA
Includes a person who exercises substantial will ``explore alternative
operational control over a CAFO. approaches to ensuring that
corporate entities support the
efforts of individual CAFOs to
comply with permits and develop and
implement CNMPs.'' (Sec. 5, Issue 3,
Item 2.B.).
Designation as a CAFO (122.23(b))--In ............ The Unified AFO Strategy states EPA
authorized States EPA may designate an AFO will consider ``who may designate
as a CAFO. No inspection required a and the criteria for designating
designate facility that was previously certain AFOs as CAFOs.'' (Sec. 5,
defined or designated as a CAFO. Issue 3, Item 2.B.).
Who must apply for an NPDES permit ............ The Unified AFO Strategy states ``the
(122.23(c))--CAFOs must either apply for a NPDES authority will issue a permit
permit or seek a determination of no unless it determines that the
potential to discharge. facility does not have a potential
to discharge. (Sec. 4.2).
[[Page 2971]]
Co-Permitting (122.23(c)(3))--Operators, ............ The Unified AFO Strategy states EPA
including any person who exercises will ``explore alternative
substantial operational control over a CAFO, approaches to ensuring that
must either apply for a permit or seek a corporate entities support the
determination of no potential to discharge. efforts of individual CAFOs to
comply with permits and develop and
implement CNMPs.'' (Sec. 5, Issue 3,
Item 2.B.).
Issuance of permit (122.23(d))--Director must ............ The Unified AFO Strategy states ``the
issue permit unless s/he determines no NPDES authority will issue a permit
potential to discharge. unless it determines that the
facility does not have a potential
to discharge. (Sec. 4.2.).
No potential to discharge (122.23(e))-- ............ The Unified AFO Strategy establishes
Determination must consider discharge from a national performance expectation
production area, land application area, and that all AFOs should develop and
via ground waters that have a direct implement CNMPs, and that such CNMPs
hydrologic connection to surface waters. should address land application of
manure. (Sec. 3.1 and 3.2).
The Unified AFO Strategy states ``EPA
believes that pollution of
groundwater may be a concern around
CAFOs. EPA has noted in other
documents that a discharge via
hydrologically connected groundwater
to surface waters may be subject to
NPDES requirements.'' (Sec. 4.2.).
The Unified AFO Strategy states EPA
will consider protecting ``sensitive
or highly valuable water bodies such
as Outstanding Natural Resources,
sole source aquifers, wetlands,
ground water recharge areas, zones
of significant ground/surface water
interaction, and other areas.''
(Sec. 5, Issue 3, Item 2.B.).
AFOs not defined or designated (122.23(g))-- ............ The Unified AFO Strategy states EPA
AFOs subject to NPDES permitting will consider ``clarifying whether
requirements if they have a discrete and under what conditions AFOs may
conveyance (i.e., point source) discharge be subject to NPDES requirements.''
from production or land application that is (Sec. 5, Issue 3, Item 2.B.).
not entirely storm water.
Non-AFO land application (122.23(h))--Land ............ The Unified AFO Strategy states EPA
application inconsistent with practices in will consider ``clarifying
412.31(b) and that result in point source requirements for effective
discharge of pollutants to Waters of the US management of manure and wastewater
may be designated under 122.26(a)(1)(v). from CAFOs whether they are handled
on-site or off-site.'' (Sec. 5,
Issue 3, Item 2. B.).
Agricultural Storm Water Exemption-- ............ The Unified AFO Strategy states EPA
Discharges from land application area if has in the past and will in the
manure is not applied in quantities that future assume that discharges from
exceed the land application rates calculated the majority of agricultural
using one of the methods specified in 40 CFR operations are exempt, but that the
412.31(b)(1)(iv). agricultural storm water exemption
would not apply where the discharge
is associated with the land disposal
of manure or wastewater from a CAFO
and the discharge is not the result
of proper agricultural practices.
(Sec. 4.4).
CAFO permit requirement (122.23(i)(2))--CAFOs ............ The Unified AFO Strategy states the
subject to effluent guidelines if applicable. effluent guidelines revisions will
be closely coordinated with any
charges to the NPDES permitting
regulations. (Sec. 5, Issue 3, Item
2. A.).
CAFO permit requirement (122.23(j))-- ............ The Unified AFO Strategy provides
Prohibits land application of manure that that all AFOs should develop and
would not serve agricultural purpose and implement CNMPs, and that such CNMPs
would likely result in pollutant discharge should address land application of
to waters of the U.S. manure to minimize impacts on water
quality and public health. (Sec. 3.1
and 3.2).
CAFO permit requirement (122.23(j)(4))-- ............ The Unified AFO Strategy states EPA
Permittee must either provide information to will consider ``clarifying
recipient or, under one co-proposal option, requirements for effective
obtain certification that recipient will management of manure and wastewater
land apply per Permit Nutrient Plan (PNP), from CAFOs whether they are handled
obtain permit, use for other purpose, or on-site or off-site.'' (Sec. 5,
transfer to 3rd party. Issue 3, Item 2. B.).
CAFO permit requirement (122.23(j)(5))-- ............ The Unified AFO Strategy states EPA
Permit must require specified recordkeeping. will consider ``establishing
specific monitoring and reporting
requirements for permitted
facilities.'' (Sec. 5, Issue 3, Item
2. B.).
The Unified AFO Strategy provides
records should be kept when manure
leaves the CAFO. (Sec.3.3).
Closure (122.23(i)(3))--AFO must maintain ............ Not explicitly addressed in Unified
permit until it no longer has wastes AFO Strategy.
generated while it was a CAFO.
[[Page 2972]]
Public access (122.23(l)--Requires public ............ Not explicitly addressed in Unified
access to list of NOIs, list of CAFOs that AFO Strategy.
have prepared PNPs, and access to executive
summary of PNP upon request.
General Permits (122.28)--Notice of Intent NOI requirements not explicitly
must include topographic map and statement addressed in Unified AFO Strategy.
re PNP; additional criteria specified for The Unified AFO Strategy states EPA
when individual permits may be required. will consider ``requiring individual
permits for CAFOs in some
situations.'' (Sec. 5, Issue 3, Item
2. B.).
----------------------------------------------------------------------------------------------------------------
Proposed Revisions to Feedlot Effluent Guidelines Regulations
----------------------------------------------------------------------------------------------------------------
Production Area--Beef/Dairy (412.33(a): No The Unified AFO Strategy indicates
discharge except when designed for 25 year, the existing effluent guidelines is
24-hour storm, also inspect/ correct/ pump- no discharge when designed for 25
out, manage mortalities. Swine/Poultry year, 24-hour storm. (Sec. 5, Issue
(412.43(a)): No discharge. 3, Item 2. A).
Strategy states that in developing
the revised effluent guidelines EPA
is to assess different management
practices that minimize the
discharge of pollutants. (Sec. 5,
Issue 3, Item 2. A).
Land Application (412.33(b) and 412.43(b))-- ............ PNP has been identified as a specific
Develop and Implement PNP covering the land subset of a CNMP applicable to AFOs
application areas under the control of the subject to the regulation. In this
CAFO. Also include Best Management Practices. manner it is consistent with the
Strategy. It also reinforces that
the CNMP is applicable to all AFOs
(regulatory/voluntary) while the PNP
is only applicable to those that
fall under the regulatory program.
It makes a clear distinction between
the regulatory and voluntary
programs addressed in the Strategy.
Land Application (412.31(b)(1)(ii))--PNP ............ The PNP is a subset of the CNMP. The
Approved by Certified Specialist. Strategy identified that CNMPs
``developed to meet the requirements
of the NPDES program in general must
be developed by a certified
specialist, ....''. (Sec. 4.6).
New Source Performance Standards (412.35/45): ............ Strategy states that in developing
Various additional requirements. the revised effluent guidelines EPA
is to evaluate the need for
different requirements for new or
expanding operations. (Sec. 5, Issue
3, Item 2. A).
Additional Measures (412.37)--Inspect/ ............ Strategy states that in developing
correct/ pump-out, manage mortalities; Land the revised effluent guidelines EPA
application BMPs, sampling, training, is to assess different management
recordkeeping. practices that minimize the
discharge of pollutants. (Sec. 5,
Issue 3, Item 2. A).
Strategy states that the regulatory
revision process will include the
establishment of specific monitoring
and reporting requirements for
permitted facilities.
----------------------------------------------------------------------------------------------------------------
IV. Why is EPA Changing the Effluent Guidelines for Feedlots and
the NPDES CAFO Regulations?
A. Main Reasons For Revising the Existing Regulations
Despite more than twenty years of regulation, there are persistent
reports of discharge and runoff of manure and manure nutrients from
livestock and poultry operations. While this is partly due to
inadequate compliance with existing regulations, EPA believes that the
regulations themselves also need revision. Today's proposed revisions
to the existing effluent guidelines and NPDES regulations for CAFOs are
expected to mitigate future water quality impairment and the associated
human health and ecological risks by reducing pollutant discharges from
the animal production industry.
EPA's proposed revisions also address the changes that have
occurred in the animal production industries in the United States since
the development of the existing regulations. The continued trend toward
fewer but larger operations, coupled with greater emphasis on more
intensive production methods and specialization, is concentrating more
manure nutrients and other animal waste constituents within some
geographic areas. This trend has coincided with increased reports of
large-scale discharges from these facilities, and continued runoff that
is contributing to the significant increase in nutrients and resulting
impairment of many U.S. waterways.
EPA's proposed revisions of the existing regulations will make the
regulations more effective for the purpose of protecting or restoring
water quality. The revisions will also make the regulations easier to
understand and better clarify the conditions under which an AFO is a
CAFO and, therefore, subject to the regulatory requirements of today's
proposed regulations.
B. Water Quality Impairment Associated with Manure Discharge and Runoff
EPA has made significant progress in implementing CWA programs and
in reducing water pollution. Despite such progress, however, serious
water quality problems persist throughout the country. Agricultural
operations, including CAFOs, are considered a significant source of
water pollution in the United States. The recently released National
Water Quality Inventory: 1998 Report to Congress was prepared under
Section 305(b) of the Clean Water Act. Under this section of the Act,
States report their impaired water bodies to EPA, including the
suspected sources of those impairments. The most recent report
indicates that the agricultural sector (including crop production,
pasture and range grazing, concentrated and confined animal feeding
operations, and aquaculture) is the leading contributor to identified
water quality impairments in the nation's rivers and
[[Page 2973]]
streams, and also the leading contributor in the nation's lakes, ponds,
and reservoirs. Agriculture is also identified as the fifth leading
contributor to identified water quality impairments in the nation's
estuaries. 1998 National Water Quality Inventory results are
illustrated in table 4-1 below.
Table 4-1.--Five Leading Sources of Water Quality Impairment in the
United States
------------------------------------------------------------------------
Rank Rivers Lakes Estuaries
------------------------------------------------------------------------
1.............. Agriculture (59%) Agriculture (31%) Municipal Point
Sources (28%)
2.............. Hydro Hydro Urban Runoff /
modification modification Storm Sewers
(20%). (15%). (28%)
3.............. Urban Runoff / Urban Runoff/ Atmospheric
Storm Sewers Storm Sewers Deposition (23%)
(11%). (12%).
4.............. Municipal Point Municipal Point Industrial
Sources (10%). Sources (11%). Discharges (15%)
5.............. Resource Atmospheric Agriculture (15%)
Extraction (9%). Deposition (8%).
------------------------------------------------------------------------
Source: National Water Quality Inventory: 1998 Report to Congress,
USEPA, 2000. Percentage of impairment attributed to each source is
shown in parentheses. For example, agriculture is listed as a source
of impairment in 59 percent of impaired river miles. The portion of
'agricultural'' impairment attributable to animal waste (as compared
to crop production, pasture grazing, range grazing, and aquaculture)
is not specified in this value. Figure totals exceed 100 percent
because water bodies may be impaired by more than one source.
Table 4-2 presents additional summary statistics of the 1998
National Water Quality Inventory. These figures indicate that the
agricultural sector contributes to the impairment of at least 170,000
river miles, 2.4 million lake acres, and almost 2,000 estuarine square
miles. Twenty-eight states and tribes identified specific agricultural
sector activities contributing to water quality impacts on rivers and
streams, and 16 states and tribes identified specific agricultural
sector activities contributing to water quality impacts on lakes,
ponds, and reservoirs. CAFOs are a subset of the agriculture category.
For rivers and streams, estimates from these states indicate that 16
percent of the total reported agricultural sector impairment is from
the animal feeding operation industry (including feedlots, animal
holding areas, and other animal operations), and 17 percent of the
agricultural sector impairment is from both range and pasture grazing.
For lakes, ponds, and reservoirs, estimates from these states indicate
that 4 percent of the total reported agricultural sector impairment is
from the animal feeding operation industry, and 39 percent of the
agricultural sector impairment is from both range and pasture grazing.
Impairment due specifically to land application of manure was not
reported.
Table 4-2.--Summary of U.S. Water Quality Impairment Survey
----------------------------------------------------------------------------------------------------------------
Quantity impaired by Quantity impaired by
Total quantity in U.S. Waters assessed all sources agriculture a
----------------------------------------------------------------------------------------------------------------
Rivers............................... 23% of total 35% of assessed 59% of impaired.
3,662,255 miles 840,402 miles 291,263 miles 170,750 miles.
----------------------------------------------------------------------------------------------------------------
Lakes, Ponds, and Reservoirs 42% of total 45% of assessed 31% of impaired.
41.6 million acres 17.4 million acres 7.9 million acres 2,417,801 acres.
----------------------------------------------------------------------------------------------------------------
Estuaries 32% of total 44% of assessed 15% of impaired.
90,465 square miles 28,687 square miles 12,482 square miles 1,827 square miles.
----------------------------------------------------------------------------------------------------------------
Source: National Water Quality Inventory: 1998 Report to Congress, USEPA, 2000.
aCAFOs are a subset of the agriculture category.
Table 4-3 below lists the leading pollutants impairing surface
water quality in the United States as identified in the 1998 National
Water Quality Inventory. The animal production industry is a potential
source of all of these, but is most commonly associated with nutrients,
pathogens, oxygen-depleting substances, and solids (siltation). Animal
production facilities are also a potential source of the other leading
causes of water quality impairment, such as metals and pesticides, and
can contribute to the growth of noxious aquatic plants due to the
discharge of excess nutrients. Animal production facilities may also
contribute loadings of priority toxic organic chemicals and oil and
grease, but to a lesser extent than other pollutants.
Table 4-3.--Five Leading Causes of Water Quality Impairment in the
United States
------------------------------------------------------------------------
Rank Rivers Lakes Estuaries
------------------------------------------------------------------------
1.............. Siltation (38%).. Nutrients (44%).. Pathogens (47%)
2.............. Pathogens (36%).. Metals (27%)..... Oxygen-Depleting
Substances (42%)
3.............. Nutrients (29%).. Siltation (15%).. Metals (27%)
4.............. Oxygen-Depleting Oxygen-Depleting Nutrients (23%)
Substances (23%). Substances (14%).
5.............. Metals (21%)..... Suspended Solids Thermal
(10%). Modifications
(18%)
------------------------------------------------------------------------
Source: National Water Quality Inventory: 1998 Report to Congress,
USEPA, 2000. Percent impairment attributed to each pollutant is shown
in parentheses. For example, siltation is listed as a cause of
impairment in 51 percent of impaired river miles. All of these
pollutants except thermal modifications are commonly associated with
animal feeding operations to varying degrees, though they are also
attributable to other sources. Figure totals exceed 100 percent
because water bodies may be impaired by more than one source.
[[Page 2974]]
Pollutants associated with animal production can also originate
from a variety of other sources, such as cropland, municipal and
industrial wastewater discharges, urban runoff, and septic systems. The
national analyses described in Section V of this preamble are useful in
assessing the significance of animal waste as a potential or actual
contributor to water quality degradation across the United States.
Section V also discusses the environmental impacts and human health
effects associated with the pollutants found in animal manure.
C. Recent Changes in the Livestock and Poultry Industry
EPA's proposed revisions of the existing effluent guidelines and
NPDES regulations take into account the major structural changes that
have occurred in the livestock and poultry industries since the 1970s
when the regulatory controls for CAFOs were first instituted. These
changes include:
Increased number of animals produced annually;
Fewer animal feeding operations and an increase in the
share of larger operations that concentrate more animals, manure and
wastewater in a single location;
Geographical shifts in where animals are produced; and
Increased coordination between animal feeding operations
and processing firms.
1. Increased Livestock and Poultry Production
Since the 1970s, total consumer demand for meat, eggs, milk and
dairy products has continued to increase. To meet this demand, U.S.
livestock and poultry production have risen sharply, resulting in an
increase in the number of animals produced and the amount of manure and
wastewater generated annually.
Increased sales from U.S. farms is particularly dramatic in the
poultry sectors, as reported in the Census of Agriculture (various
years). In 1997, turkey sales totaled 299 million birds. In comparison,
141 million turkeys were sold for slaughter in 1978. Broiler sales
totaled 6.4 billion chickens in 1997, up from 2.5 billion chickens sold
in 1974. The existing CAFO regulations effectively do not cover broiler
operations because they exclude operations that use dry manure
management systems. Red meat production also rose during the 1974-1997
period. The number of hogs and pigs sold increased from 79.9 million
hogs in 1974 to 142.6 million hogs in 1997. Sales data for fed cattle
(i.e., USDA's data category on ``cattle fattened on grain and
concentrates'') for 1975 show that 20.5 million head were marketed. By
1997, fed cattle marketings totaled 22.8 million head. The total number
of egg laying hens rose from 0.3 million birds in 1974 to 0.4 million
birds in 1997. The number of dairy cows on U.S. farms, however, dropped
from more than 10.7 million cows to 9.1 million cows over the same
period.
Not only are more animals produced and sold each year, but the
animals are also larger in size. Efficiency gains have raised animal
yields in terms of higher average slaughter weight. Likewise,
production efficiency gains at egg laying and dairy operations have
resulted in higher per-animal yields of eggs and milk. USDA reports
that the average number of eggs produced per egg laying hen was 218
eggs per bird in 1970 compared to 255 eggs per bird in 1997. The
National Milk Producers Federation reports that average annual milk
production rose from under 10,000 pounds per cow in 1970 to more than
16,000 pounds per cow in 1997. In the case of milk production, these
efficiency gains have allowed farmers to maintain or increase
production levels with fewer animals. Although animal inventories at
dairy farms may be lower, however, this may not necessarily translate
to reduced manure volumes generated because higher yields are largely
attributable to improved and often more intensive feeding strategies
that may exceed the animal's ability for uptake. This excess is not
always incorporated by the animal and may be excreted.
2. Increasing Share of Larger, More Industrialized Operations
The number of U.S. livestock and poultry operations is declining
due to ongoing consolidation in the animal production industry.
Increasingly, larger, more industrialized, highly specialized
operations account for a greater share of all animal production. This
has the effect of concentrating more animals, and thus more manure and
wastewater, in a single location, and raising the potential for
significant environmental damages unless manure is properly stored and
handled.
USDA reports that there were 1.1 million livestock and poultry
farms in the United States in 1997, about 40 percent fewer than the 1.7
million farms reported in 1974. Farms are closing, especially smaller
operations that cannot compete with large-scale, highly specialized,
often lower cost, producers. Consequently, the livestock and poultry
industries are increasingly dominated by larger operations. At the same
time, cost and efficiency considerations are pushing farms to become
more specialized and intensive. Steep gains in production efficiency
have allowed farmers to produce more with fewer animals because of
higher per-animal yields and quicker turnover of animals between farm
production and consumer market. As a result, annual production and
sales have increased, even though the number of animals on farms at any
one time has declined (i.e., an increase in the number of marketing
cycles over the course of the year allows operators to maintain
production levels with fewer animals at any given time, although the
total number of animals produced by the facility over the year may be
greater).
The increase in animal densities at operations is evident by
comparing the average number of animals per operation between 1974 and
1997, as derived from Census of Agriculture data. In the poultry
sectors, the average number of birds across all operations is four to
five times greater in 1997 than in 1974. In 1997, the number of
broilers per operation averaged 281,700 birds, up from 73,300 birds in
1974. Over the same period, the average number of egg laying hens per
operation rose from 1,100 layers to 5,100 layers per farm, and the
average number of turkeys per operation rose from 2,100 turkeys to
8,600 turkeys. The average number of hogs raised per operation rose
from under 100 hogs to more than 500 hogs between 1974 and 1997. The
average number of fed cattle and dairy cows per operation more than
doubled during the period, rising to nearly 250 fed cattle and 80
milking cows by 1997.
This trend toward fewer, larger, and more industrialized operations
has contributed to large amounts of manure being produced at a single
geographic location. The greatest potential risk is from the largest
operations with the most animals given the sheer volume of manure
generated at these facilities. Larger, specialized facilities often do
not have an adequate land base for manure disposal through land
application. A USDA analysis of 1997 Census data shows that animal
operations with more than 1,000 AU account for more than 42 percent of
all confined animals but only 3 percent of cropland held by livestock
and poultry operations. As a result, large facilities need to store
significant volumes of manure and wastewater which have the potential,
if not properly handled, to cause significant water quality impacts. By
comparison, smaller operations manage fewer animals and tend to
concentrate less manure at a single farming location. Smaller
operations also tend to be more diversified, engaging in both animal
and
[[Page 2975]]
crop production. These operations often have sufficient cropland and
fertilizer needs to land apply manure generated by the farm's livestock
or poultry business, without exceeding that land's nutrient
requirements.
Another recent analysis from USDA confirms that as animal
production operations have become larger and more specialized
operations, the opportunity to jointly manage animal waste and crop
nutrients has decreased. Larger operations typically have inadequate
land available for utilizing manure nutrients. USDA estimates that the
amount of nitrogen from manure produced by confinement operations
increased about 20 percent between 1982 and 1997, while average acreage
on livestock and poultry farms declined. Overall, USDA estimates that
cropland controlled by operations with confined animals has the
assimilative capacity to absorb about 40 percent of the calculated
manure nitrogen generated by these operations. EPA expects this excess
will need to be transported offsite.
3. Geographic Shifts in Where Animals are Raised
During the 1970s, the majority of farming operations were
concentrated in rural, agricultural areas and manure nutrients
generated by animal feeding operations were readily incorporated as a
fertilizer for crop production. In an effort to reduce transportation
costs and streamline distribution between the animal production and
food processing sectors, livestock and poultry operations have tended
to cluster near slaughtering and manufacturing plants as well as near
end-consumer markets. Ongoing structural and technological change in
these industries also influences where facilities operate and
contributes to locational shifts from the more traditional farm
production regions to the more emergent regions.
Operations in more traditional producing states tend to grow both
livestock and crops and tend to have adequate cropland for land
application of manure. Operations in these regions also tend to be
smaller in size. In contrast, confinement operations in more emergent
areas, such as hog operations in North Carolina or dairy operations in
the Southwest, tend to be larger in size and more intensive types of
operations. These operations tend to be more specialized and often do
not have adequate land for application of manure nutrients. Production
is growing rapidly in these regions due to competitive pressures from
more specialized producers who face lower per-unit costs of production.
This may be shifting the flow of manure nutrients away from more
traditional agricultural areas, often to areas where these nutrients
cannot be easily absorbed.
As reported by Census data, shifts in where animals are grown is
especially pronounced in the pork sector. Traditionally, Iowa has been
the top ranked pork producing state. Between 1982 and 1997, however,
the number of hogs raised in that state remained relatively constant
with a year-end inventory average of about 14.2 million pigs. In
comparison, year-end hog inventories in North Carolina increased from
2.0 million pigs in 1982 to 9.6 million pigs in 1997. This locational
shift has coincided with reported nutrient enrichment of the waters of
the Pamlico Sound in North Carolina. Growth in hog production also
occurred in other emergent areas, including South Dakota, Oklahoma,
Wyoming, Colorado, Arizona, and Utah. Meanwhile, production dropped in
Illinois, Indiana, Wisconsin, and Ohio.
The dairy industry has seen similar shifts in where milk is
produced, moving from the more traditional Midwest and Northeast states
to the Pacific and Southwestern states. Between 1982 and 1997, the
number of milk cows in Wisconsin dropped from 1.9 million to 1.3
million. Milk cow inventories have also declined in other traditional
states, including Illinois, Indiana, Iowa, Minnesota, Missouri, New
York, Pennsylvania, Ohio, Connecticut, Maryland, and Vermont. During
the same period, milk cow inventories in California rose from 0.9
million in 1982 to 1.4 million in 1997. In 1994, California replaced
Wisconsin as the top milk producing state. Milk cow inventories have
also increased in Texas, Idaho, Washington, Oregon, Colorado, Arizona,
Nevada, and Utah. These locational shifts have coincided with reported
nutrient enrichment of waters, including the Puget Sound and Tillamook
Bay in the northwest, the Everglades in Florida, and Erath County in
Texas, and also elevated salinity levels due to excess manure near milk
production areas in southern California's Chino Basin.
4. Increased Linkages between Animal Production Facility and Food
Processors
Over the past few decades, closer ties have been forged between
growers and various industry middlemen, including packers, processors,
and cooperatives. Increased integration and coordination is being
driven by the competitive nature of agricultural production and the
dynamics of the food marketing system, in general, as well as seasonal
fluctuations of production, perishability of farm products, and the
inability to store and handle raw farm output. Closer ties between the
animal production facility and processing firms--either through
contractual agreement or through corporate ownership of CAFOs--raises
questions of who is responsible for ensuring proper manure disposal and
management at the animal feeding site. This is especially true given
the current trend toward larger animal confinement operations and the
resultant need for increased animal waste management. As operations
become larger and more specialized, they may contract out some phases
of the production process.
Farmers and ranchers have long used contracts to market
agricultural commodities. However, increased use of production
contracts is changing the organizational structure of the individual
industries. Under a production contract, a business other than the
feedlot where the animals are raised and housed, such as a processing
firm, feed mill, or animal feeding operation, may own the animals and
may exercise further substantial operational control over the
operations of the feedlot. In some cases, the processor may specify in
detail the production inputs used, including the genetic material of
the animals, the types of feed used, and the production facilities
where the animals are raised. The processor may also influence the
number of animals produced at a site. In general, these contracts do
not deal with management of manure and waste disposal. Recently,
however, some processors have become increasingly involved in how
manure and waste is managed at the animal production site.
The use of production contracts in the livestock and poultry
industries varies by commodity group. Information from USDA indicates
that production contracts are widely used in the poultry industry and
dominate broiler production. Production contracting is becoming
increasingly common in the hog sector, particularly for the finishing
stage of production in regions outside the Corn Belt.
Production contracting has played a critical role in the growth of
integrators in the poultry sectors. Vertical integration has progressed
to the point where large, multifunction producer-packer-processor-
distributor firms are the dominant force in poultry and egg production
and marketing. Data from USDA on animal ownership at U.S. farms
illustrates the use of production contracts in these sectors. In 1997,
USDA reported that 97 percent of all broilers raised on U.S. farms were
not owned by the farmer. In the turkey and
[[Page 2976]]
egg laying sectors, use of production contracts is less extensive since
70 percent and 43 percent of all birds in these sectors, respectively,
were not owned by the farmer. In the hog sector, data from USDA
indicate that production contracting may account for 66 percent of hog
production among larger producers in the Southern and Mid-Atlantic
states. This differs from the Midwest, where production contracting
accounted for 18 percent of hog production in 1997.
By comparison, production contracts are not widely used in the beef
and dairy sectors. Data from USDA indicate that less than 4 percent of
all beef cattle and 1 percent of all milking cows were not owned by the
farmer in 1997. However, production contracts are used in these
industries that specialize in a single stage of livestock production,
such as to ``finish'' cattle prior to slaughter or to produce
replacement breeding stock. However, this use constitutes a small share
of overall production across all producers.
To further examine the linkages between the animal production
facility and the food processing firms, and to evaluate the
geographical implications of this affiliation, EPA conducted an
analysis that shows a relationship between areas of the country with an
excess of manure nutrients from animal production operations and areas
with a large number of meat packing and poultry slaughtering
facilities. This manure--if land applied--would be in excess of crop
uptake needs and result in over application and enrichment of
nutrients. Across the pork and poultry sectors, this relationship is
strongest in northwest Arkansas, where EPA estimates a high
concentration of excess manure nutrients and a large number of poultry
and hog processing facilities. By sector, EPA's analysis shows that
there is excess poultry manure nutrients and a large number of poultry
processing plants in the Delmarva Peninsula in the mid-Atlantic, North
Carolina, northern Alabama, and also northern Georgia. In the hog
sector, the analysis shows excess manure nutrients and a large number
of meat packing plants in Iowa, Nebraska and Alabama. The analysis also
shows excess manure nutrients from hogs in North Carolina, but
relatively fewer meat packing facilities, which is likely explained by
continuing processing plant closure and consolidation in that state.
More information on this analysis is provided in the rulemaking record.
D. Improve Effectiveness of Regulations
As noted in Section IV.B, reports of continued discharges and
runoff from animal production facilities have persisted in spite of
regulatory controls that were first instituted in the 1970s. EPA is
proposing to revise the effluent guidelines and NPDES regulations to
improve their effectiveness by making the regulations simpler and
easier to understand and implement. Another change intended to improve
the effectiveness of the regulations is clarification of the conditions
under which an AFO is a CAFO and is, therefore, subject to the NPDES
regulatory requirements. In addition, EPA is revising the existing
regulation to remove certain provisions that are no longer appropriate.
The existing regulations were designed to prohibit the release of
wastewater from the feedlot site, but did not specifically address
discharges that may occur when wastewater or solid manure mixtures are
applied to crop, pasture, or hayland. The proposed regulations address
the environmental risks associated with manure management. The proposed
revisions also are more reflective of current farm production practices
and waste management controls.
Today's proposed revised regulations also seek to improve the
effectiveness of the existing regulations by focusing on those
operations that produce the majority of the animal manure and
wastewater generated annually. EPA estimates that the proposed
regulations will regulate, as CAFOs, about 7 to 10 percent of all
animal confinement operations nationwide, and will capture between 64
percent and 70 percent of the total amount of manure generated at CAFOs
annually, depending on the proposed regulatory alternative (discussed
in more detail in Section VI.A). Under the existing regulations, few
operations have obtained NPDES permits. Presently, EPA and authorized
States have issued approximately 2,500 NPDES permits. This is less than
1 percent of the estimated 376,000 animal confinement operations in the
United States. EPA's proposed revisions are intended to ensure that all
CAFOs, as defined under the proposed regulations, will apply for and
obtain a permit.
V. What Environmental and Human Health Impacts Are Potentially
Caused by CAFOs?
The 1998 National Water Quality Inventory, prepared under Section
305(b) of the Clean Water Act, presents information on impaired water
bodies based on reports from the States. This recent report indicates
that the agricultural sector (which includes concentrated and confined
animal feeding operations, along with aquaculture, crop production,
pasture grazing, and range grazing) is the leading contributor to
identified water quality impairments in the nation's rivers and lakes,
and the fifth leading contributor in the nation's estuaries. The
leading pollutants or stressors of rivers and streams include (in order
of rank) siltation, pathogens (bacteria), nutrients, and oxygen
depleting substances. For lakes, ponds, and reservoirs, the leading
pollutants or stressors include nutrients (ranked first), siltation
(ranked third), oxygen depleting substances (ranked fourth), and
suspended solids (ranked fifth). For estuaries, the leading pollutants
or stressors include pathogens (bacteria) as the leading cause, oxygen
depleting substances (ranked second), and nutrients (ranked fourth).
The sections which follow present the pollutants associated with
livestock and poultry operators, of which CAFOs are a subset, the
pathways by which the pollutants reach surface water, and their impacts
on the environment and human health. Detailed information can be found
in the Environmental Assessment of the Proposed Revisions to the
National Pollutant Discharge Elimination System Regulation and Effluent
Guidelines for Concentrated Animal Feeding Operations. The
Environmental Assessment and the supporting references mentioned here
are included in Section 8.1 of the Record for this proposal.
A. Which Pollutants Do CAFOs Have the Potential to Discharge and Why
Are They of Concern?
The primary pollutants associated with animal waste are nutrients
(particularly nitrogen and phosphorus), organic matter, solids,
pathogens, and odorous/volatile compounds. Animal waste is also a
source of salts and trace elements, and to a lesser extent,
antibiotics, pesticides, and hormones. Each of these types of
pollutants is discussed in the sections which follow. The actual
composition of manure depends on the animal species, size, maturity,
and health, as well as on the composition (e.g., protein content) of
animal feed.
1. Nutrients (Nitrogen, Phosphorus, and Potassium)
The 1998 National Water Quality Inventory indicates that nutrients
are the leading stressor in impaired lakes, ponds, and reservoirs. They
are the third most frequent stressor in impaired rivers and streams,
and the fourth greatest stressor in impaired estuaries. The three
primary nutrients in manure are nitrogen, phosphorus, and
[[Page 2977]]
potassium. (Potassium also contributes to salinity.)
Nitrogen in fresh manure exists in both organic forms (including
urea) and inorganic forms (including ammonium, ammonia, nitrate, and
nitrite). In fresh manure, 60 to 90 percent of total nitrogen is
present in organic forms. Organic nitrogen is transformed via microbial
processes to inorganic forms, which are bioavailable and therefore have
fertilizer value. As an example of the quantities of nutrients
discharged from AFOs, EPA estimates that hog operations in eastern
North Carolina generated 135 million pounds of nitrogen per year as of
1995.
Phosphorus exists in solid and dissolved phases, in both organic
and inorganic forms. Over 70 percent of the phosphorus in animal manure
is in the organic form. As the waste ages, phosphorus mineralizes to
inorganic phosphate compounds which are available to plants. Organic
phosphorus compounds are generally water soluble and may leach through
soil to groundwater and run off into surface waters. Inorganic
phosphorus tends to adhere to soils and is less likely to leach into
groundwater. Animal wastes typically have lower nitrogen:phosphorus
ratios than crop requirements. The application of manure at a nitrogen-
based agronomic rate can, therefore, result in application of
phosphorus at several times the agronomic rate. Soil test data in the
United States confirm that many soils in areas dominated by animal-
based agriculture have elevated levels of phosphorus.
Potassium contributes to the salinity of animal manure which may in
turn contribute salinity to surface water polluted by manure. Actual or
anticipated levels of potassium in surface water and groundwater are
unlikely to pose hazards to human health or aquatic life. However,
applications of high salinity manure are likely to decrease the
fertility of the soil.
In 1998, USDA studied the amount of manure nitrogen and phosphorus
production for confined animals relative to crop uptake potential. USDA
evaluated the quantity of nutrients available from recoverable
livestock manure relative to crop growth requirements, by county, based
on data from the 1997 Census of Agriculture. The analyses were intended
to determine the amount of manure that can be recovered and used. The
analyses did not consider manure from grazing animals in pasture,
excluded manure lost to the environment, and also excluded manure lost
in dry storage and treatment. It is not currently possible to
completely recover all manure.
Losses to the environment can occur through runoff, erosion,
leaching to groundwater, and volatilization (especially for nitrogen in
the form of ammonia). These losses can be significant. Considering
typical management systems, the 1998 USDA study reported that average
manure nitrogen losses range from 31 to 50 percent for poultry, 60 to
70 percent for cattle (including the beef and dairy categories), and 75
percent for swine. The typical phosphorus loss is 15 percent.
The USDA study also looked at the potential for available manure
nitrogen and phosphorus generated in a county to meet or exceed plant
uptake and removal in each of the 3,141 mainland counties. Based on
this analysis of 1992 conditions, available manure nitrogen exceeds
crop system needs in 266 counties, and available manure phosphorus
exceeds crop system needs in 485 counties. The relative excess of
phosphorus compared to nitrogen is not surprising, since manure is
typically nitrogen-deficient relative to crop needs. Therefore, when
manure is applied to meet a crop's nitrogen requirement, phosphorus is
typically over-applied.
USDA's analyses do not evaluate environmental transport of applied
manure nutrients. Therefore, an excess of nutrients in a particular
county does not necessarily indicate that a water quality problem
exists. Likewise, a lack of excess nutrients does not imply the absence
of water quality problems. Nevertheless, the analyses provide a general
indicator of excess nutrients on a broad basis.
2. Organic Matter
Livestock manures contain many carbon-based, biodegradable
compounds. Once these compounds reach surface water, they are
decomposed by aquatic bacteria and other microorganisms. During this
process dissolved oxygen is consumed, which in turn reduces the amount
of oxygen available for aquatic animals. The 1998 National Water
Quality Inventory indicates that oxygen-depleting substances are the
second leading stressor in estuaries. They are the fourth greatest
stressor both in impaired rivers and streams, and in impaired lakes,
ponds, and reservoirs. Biochemical oxygen demand (BOD) is an indirect
measure of the concentration of biodegradable substances present in an
aqueous solution.
3. Solids
The 1998 National Water Quality Inventory indicates that suspended
solids are the fifth leading stressor in lakes, ponds, and reservoirs.
Solids are measured as total suspended solids, or TSS. (Solids can also
be measured as total dissolved solids, or TDS.) Solids from animal
manure include the manure itself and any other elements that have been
mixed with it. These elements can include spilled feed, bedding and
litter materials, hair, feathers, and corpses. In general, the impacts
of solids include increasing the turbidity of surface waters,
physically hindering the functioning of aquatic plants and animals, and
providing a protected environment for pathogens.
4. Pathogens
Pathogens are disease-causing organisms including bacteria,
viruses, protozoa, fungi, and algae. The 1998 National Water Quality
Inventory indicates that pathogens (specifically bacteria) are the
leading stressor in impaired estuaries and the second most prevalent
stressor in impaired rivers and streams. Livestock manure contains
countless microorganisms, including bacteria, viruses, protozoa, and
parasites. Multiple species of pathogens may be transmitted directly
from a host animal's manure to surface water, and pathogens already in
surface water may increase in number due to loadings of animal manure
nutrients and organic matter. In 1998, the Centers for Disease Control
and Prevention reported on an Iowa investigation of chemical and
microbial contamination near large scale swine operations. The
investigation demonstrated the presence of pathogens not only in manure
lagoons used to store swine waste before it is land applied, but also
in drainage ditches, agricultural drainage wells, tile line inlets and
outlets, and an adjacent river.
Over 150 pathogens found in livestock manure are associated with
risks to humans. The protozoa Cryptosporidium parvum and Giardia
species are frequently found in animal manure and relatively low doses
can cause infection in humans. Bacteria such as Escherichia coli
O157:H7 and Salmonella species are also often found in livestock manure
and have also been associated with waterborne disease. A recent study
by USDA revealed that about half the cattle at the nation's feedlots
carry E. coli. The bacteria Listeria monocytogenes is ubiquitous in
nature, and is commonly found in the intestines of wild and domestic
animals without causing illness. L. monocytogenes is commonly
associated
[[Page 2978]]
with foodborne disease. The pathogens C. parvum, Giardia, E. coli
O157:H7, and L. monocytogenes are able to survive and remain infectious
in the environment for long periods of time.
Although the pathogen Pfiesteria piscicida is not found in manure,
researchers have documented stimulation of Pfiesteria growth by swine
effluent discharges, and have strong field evidence that the same is
true for poultry waste. Research has also shown that this organism's
growth can be highly stimulated by both inorganic and organic nitrogen
and phosphorus enrichments. Discussions of Pfiesteria impacts on the
environment and on human health are presented later in this section.
5. Salts
The salinity of animal manure is directly related to the presence
of dissolved mineral salts. In particular, significant concentrations
of soluble salts containing sodium and potassium remain from undigested
feed that passes unabsorbed through animals. Other major cations
contributing to manure salinity are calcium and magnesium; the major
anions are chloride, sulfate, bicarbonate, carbonate, and nitrate.
Salinity tends to increase as the volume of manure decreases during
decomposition and evaporation. Salt buildup deteriorates soil
structure, reduces permeability, contaminates groundwater, and reduces
crop yields.
In fresh waters, increasing salinity can disrupt the balance of the
ecosystem, making it difficult for resident species to remain. In
laboratory settings, drinking water high in salt content has inhibited
growth and slowed molting of mallard ducklings. Salts also contribute
to degradation of drinking water supplies.
6. Trace Elements
The 1998 National Water Quality Inventory indicates that metals are
the fifth leading stressor in impaired rivers, the second leading
stressor in impaired lakes, and the third leading stressor in impaired
estuaries. Trace elements in manure that are of environmental concern
include arsenic, copper, selenium, zinc, cadmium, molybdenum, nickel,
lead, iron, manganese, aluminum, and boron. Of these, arsenic, copper,
selenium, and zinc are often added to animal feed as growth stimulants
or biocides. Trace elements may also end up in manure through use of
pesticides, which are applied to livestock to suppress houseflies and
other pests. Trace elements have been found in manure lagoons used to
store swine waste before it is land applied, and in drainage ditches,
agricultural drainage wells, and tile line inlets and outlets. They
have also been found in rivers adjacent to hog and cattle operations.
Several of the trace elements in manure are regulated in treated
municipal sewage sludge (but not manure) by the Standards for the Use
or Disposal of Sewage Sludge, promulgated under the Clean Water Act and
published in 40 C.F.R. Part 503. These include arsenic, cadmium,
chromium, copper, lead, mercury, molybdenum, nickel, selenium, and
zinc. Total concentrations of trace elements in animal manures have
been reported as comparable to those in some municipal sludges, with
typical values well below the maximum concentrations allowed by Part
503 for land-applied sewage sludge. Based on this information, trace
elements in agronomically applied manures should pose little risk to
human health and the environment. However, repeated application of
manures above agronomic rates could result in exceedances of the
cumulative metal loading rates established in Part 503, thereby
potentially impacting human health and the environment. There is some
evidence that this is happening. For example, in 1995, zinc and copper
were found building to potentially harmful levels on the fields of a
hog farm in North Carolina.
7. Odorous/Volatile Compounds
Sources of odor and volatile compounds include animal confinement
buildings, manure piles, waste lagoons, and land application sites. As
animal wastes are degraded by microorganisms, a variety of gases are
produced. The four main gases generated are carbon dioxide, methane,
hydrogen sulfide, and ammonia. Over 150 other odorous compounds have
also been identified with animal manure. Aerobic conditions yield
mainly carbon dioxide, while anaerobic conditions generate both methane
(60 percent to 70 percent) and carbon dioxide (30 percent). Anaerobic
conditions, which dominate in typical, unaerated animal waste lagoons,
are also associated with the generation of hydrogen sulfide and about
40 other odorous compounds, including volatile fatty acids, phenols,
mercaptans, aromatics, sulfides, and various esters, carbonyls, and
amines. Once airborne, these volatile pollutants have the potential to
be deposited onto nearby streams, rivers, and lakes.
Up to 50 percent or more of the nitrogen in fresh manure may be in
ammonia form or converted to ammonia relatively quickly once manure is
excreted. Ammonia is volatile and ammonia losses from animal feeding
operations can be considerable. A study of atmospheric nitrogen
published in 1998 reported that, in North Carolina, animal agriculture
is responsible for over 90 percent of all ammonia emissions. Ammonia
from manure comprises more than 40 percent of the total estimated
nitrogen emissions from all sources.
8. Antibiotics
Antibiotics are used in animal feeding operations and can be
expected to appear in animal wastes. The practice of feeding
antibiotics to poultry, swine, and cattle evolved from the 1949
discovery that very low levels usually improved growth. Antibiotics are
used both to treat illness and as feed additives to promote growth or
to improve feed conversion efficiency. In 1991, an estimated 19 million
pounds of antibiotics were used for disease prevention and growth
promotion in animals. Between 60 and 80 percent of all livestock and
poultry receive antibiotics during their productive lifespan. The
primary mechanisms of elimination are in urine and bile. Essentially
all of an antibiotic administered is eventually excreted, whether
unchanged or in metabolite form. Little information is available
regarding the concentrations of antibiotics in animal wastes, or on
their fate and transport in the environment.
Of greater concern than the presence of antibiotics in animal
manure is the development of antibiotic resistant pathogens. Use of
antibiotics in raising animals, especially broad spectrum antibiotics,
is increasing. As a result, more strains of antibiotic resistant
pathogens are emerging, along with strains that are growing more
resistant. Normally, about 2 percent of a bacterial population are
resistant to a given antibiotic; however, up to 10 percent of bacterial
populations from animals regularly exposed to antibiotics have been
found to be resistant. In a study of poultry litter suitable for land
application, about 80 to 100 percent of bacterial populations isolated
from the litter were found to be resistant to multiple antibiotics.
Antibiotic-resistant forms of Salmonella, Campylobacter, E. coli, and
Listeria are known or suspected to exist. An antibiotic-resistant
strain of the bacteria Clostridium perfringens was detected in the
groundwater below plots of land treated with pig manure, while it was
nearly absent beneath unmanured plots.
9. Pesticides and Hormones
Pesticides and hormones are compounds which are used in animal
feeding operations and can be expected
[[Page 2979]]
to appear in animal wastes. Both of these types of pollutants have been
linked with endocrine disruption.
Pesticides are applied to livestock to suppress houseflies and
other pests. There has been very little research on losses of
pesticides in runoff from manured lands. A 1994 study showed that
losses of cyromazine (used to control flies in poultry litter) in
runoff increased with the rate of poultry manure applied and the
intensity of rainfall.
Specific hormones are used to increase productivity in the beef and
dairy industries. Several studies have shown hormones are present in
animal manures. Poultry manure has been shown to contain both estrogen
and testosterone. Runoff from fields with land-applied manure has been
reported to contain estrogens, estradiol, progesterone, and
testosterone, as well as their synthetic counterparts. In 1995, an
irrigation pond and three streams in the Conestoga River watershed near
the Chesapeake Bay had both estrogen and testosterone present. All of
these sites were affected by fields receiving poultry litter.
B. How Do These Pollutants Reach Surface Waters?
Pollutants found in animal manures can reach surface water by
several mechanisms. These can be categorized as either surface
discharges or other discharges. Surface discharges can occur as the
result of runoff, erosion, spills, and dry-weather discharges. In
surface discharges, the pollutant travels overland or through drain
tiles with surface inlets to a nearby stream, river, or lake. Direct
contact between confined animals and surface waters is another means of
surface discharge. For other types of discharges, the pollutant travels
via another environmental medium (groundwater or air) to surface water.
1. Surface Discharges
a. Runoff. Water that falls on man-made surfaces or soil and fails
to be absorbed will flow across the surface and is called runoff.
Surface discharges of manure pollutants can originate from feedlots and
from overland runoff at land application sites. Runoff is especially
likely at open-air feedlots if rainfall occurs soon after application,
or if manure is over-applied, or misapplied. For example, experiments
by Edwards and Daniels in the early 1990s show that, for all animal
wastes, the application rate had a significant effect on the runoff
concentration. In addition, manure applied to water-saturated or frozen
soils is more likely to run off the soil surface. Other factors that
promote runoff to surface waters are steep land slope, high rainfall,
low soil porosity or permeability, and close proximity to surface
waters. Runoff of pollutants dissolved into rainwater is a significant
transport mechanism for water soluble pollutants, which includes
nitrate, nitrite, and organic forms of phosphorus.
Runoff of manure pollutants has been identified by states,
citizen's groups, and the media as a factor in a number of documented
impacts from AFOs, including hog, cattle, and chicken operations. For
example, in 1994, multiple runoff problems were cited for a hog
operation in Minnesota, and in 1996 runoff from manure spread on land
was identified at hog and chicken operations in Ohio. In 1997, runoff
problems were identified for several cattle operations in numerous
counties in Minnesota. More discussion of runoff and its impacts on the
environment and human health is provided later in this section.
b. Erosion. In addition to runoff, surface discharges can occur by
erosion, in which the soil surface is worn away by the action of water
or wind. Erosion is a significant transport mechanism for land-applied
pollutants that are strongly sorbed to soils, of which phosphorus is
one example. A 1999 report by the Agricultural Research Service (ARS)
noted that phosphorus bound to eroded sediment particles makes up 60 to
90 percent of phosphorus transported in surface runoff from cultivated
land. For this reason, most agricultural phosphorus control measures
have focused on soil erosion control to limit transport of particulate
phosphorus. However, soils do not have infinite adsorption capacity for
phosphate or any other adsorbing pollutant, and dissolved pollutants
including phosphates can still enter waterways via runoff and leachate
even if soil erosion is controlled.
In 1998, the USDA Natural Resources Conservation Service (NRCS)
reviewed the manure production of a watershed in South Carolina.
Agricultural activities in the project area are a major influence on
the streams and ponds in the watershed, and contribute to nutrient-
related water quality problems in the headwaters of Lake Murray. NRCS
found that bacteria, nutrients, and sediment from soil erosion are the
primary contaminants affecting these resources. The NRCS has calculated
that soil erosion, occurring on over 13,000 acres of cropland in the
watershed, ranges from 9.6 to 41.5 tons per acre per year.
c. Spills and Dry-Weather Discharges. Surface discharges can occur
through spills or other discharges from lagoons. Some causes of spills
include malfunctions such as pump failures, manure irrigation gun
malfunctions, and pipes or retaining walls breaking. Manure entering
tile drains has a direct route to surface water. (Tile drains are a
network of pipes buried in fields below the root zone of plants to
remove subsurface drainage water from the root zone to a stream,
drainage ditch, or evaporation pond. EPA does not regulate most tile
fields.) In 1997, the Ohio Department of Natural Resources documented
chicken manure traveling through tile drains into a nearby stream. In
addition, spills can occur as a result of lagoon overflows and washouts
from floodwaters when lagoons are sited on floodplains. There are also
indications that discharges from siphoning lagoons occur deliberately
as a means to reduce the volume in overfull lagoons. Acute discharges
of this kind frequently result in dramatic fish kills. In 1997, an
independent review of Indiana Department of Environmental Management
records indicated that the most common causes of waste releases in that
state were intentional discharge and lack of operator knowledge, rather
than spills due to severe rainfall conditions.
Numerous such dry-weather discharges have been identified. For
example, in 1995, two separate discharges of 25 million gallons of
manure from hog farms in North Carolina were documented, and both
resulted in fish kills. Subsequent discharges of hundreds of thousands
of gallons of manure were documented from hog operations in Iowa
(1996), Illinois (1997), and Minnesota (1997). Fish kills were also
reported as a result of two of these discharges. Discharges of over 8
million gallons of manure from a poultry operation in North Carolina in
1995 likewise resulted in a fish kill. Between 1994 and 1996, half a
dozen discharges from poultry operations in Ohio resulted when manure
entered field tiles. In 1998, 125,000 gallons of manure were discharged
from a dairy feedlot in Minnesota.
d. Direct Contact between Confined Animals and Surface Water.
Finally, surface discharges can occur as a result of direct contact
between confined animals and the rivers or ponds that are located
within their reach. Historically, farms were located near waterways for
both water access for animals and discharge of wastes. This practice is
now restricted for CAFOs; however, despite this restriction,
enforcement actions are the primary means for reducing direct access.
[[Page 2980]]
In the more traditional farm production regions of the Midwest and
Northeast, dairy barns and feedlots are often in close proximity to
streams or other water sources. This close proximity to streams was
necessary in order to provide drinking water for the dairy cows, direct
access to cool the animals in hot weather, and to cool the milk prior
to the wide-spread use of refrigeration. For CAFO-size facilities this
practice is now replaced with more efficient means of providing
drinking water for the dairy herd. In addition, the use of freestall
barns and modern milking centers minimizes the exposure of dairy cows
to the environment. For example, in New York direct access is more of a
problem for the smaller traditional dairy farms that use older methods
of housing animals.
In the arid west, feedlots are typically located near waterbodies
to allow for cheap and easy stock watering. Many existing lots were
configured to allow the animals direct access to the water. Certain
animals, particularly cattle, will wade into the water, linger to
drink, and will often urinate and defecate there as well. This direct
deposition of manure and urine contributes greatly to water quality
problems. Environmental problems associated with allowing farm animals
access to waters that are adjacent to the production area are well
documented in the literature. EPA Region X staff have documented
dramatically elevated levels of Escherichia coli in rivers downstream
of AFOs (including CAFOs) with direct access to surface water. Recent
enforcement actions against direct access facilities have resulted in
the assessment of tens of thousands of dollars in civil penalties.
2. Other Discharges to Surface Waters
a. Leaching to Groundwater. Leaching of land-applied pollutants
such as nitrate dissolved into rainwater is a significant transport
mechanism for water soluble pollutants. In addition, leaking lagoons
are a source of manure pollutants to ground water. Although manure
solids purportedly ``self-seal'' lagoons to prevent groundwater
contamination, some studies have shown otherwise. A study for the Iowa
legislature published in 1999 indicates that leaking is part of design
standards for earthen lagoons and that all lagoons should be expected
to leak. A 1995 survey of hog and poultry lagoons in the Carolinas
found that nearly two-thirds of the 36 lagoons sampled had leaked into
the groundwater. Even clay-lined lagoons have the potential to leak,
since they can crack or break as they age, and can be susceptible to
burrowing worms. In a three-year study (1988-1990) of clay-lined swine
lagoons on the Delmarva Peninsula, researchers found that leachate from
lagoons located in well-drained loamy sand had a severe impact on
groundwater quality.
Pollutant transport to groundwater is also greater in areas with
high soil permeability and shallow water tables. Percolating water can
transport pollutants to groundwater, as well as to surface waters via
interflow. Contaminated groundwater can deliver pollutants to surface
waters through hydrologic connections. Nationally, about 40 percent of
the average annual stream flow is from groundwater. In the Chesapeake
Bay watershed, the U.S. Geological Survey (USGS) estimates that about
half of the nitrogen loads from all sources to nontidal streams and
rivers originate from groundwater.
b. Discharge to the Air and Subsequent Deposition. Discharges to
air can occur as a result of volatilization of both pollutants already
present in the manure and pollutants generated as the manure
decomposes. Ammonia is very volatile, and can have significant impacts
on water quality through atmospheric deposition. Other ways that manure
pollutants can enter the air is from spray application methods for land
applying manure and as particulates wind-borne in dust. Once airborne,
these pollutants can find their way into nearby streams, rivers, and
lakes. The 1998 National Water Quality Inventory indicates that
atmospheric deposition is the third greatest cause of water quality
impairment for estuaries, and the fifth greatest cause of water quality
impairment for lakes, ponds, and reservoirs.
The degree of volatilization of manure pollutants is dependent on
the manure management system. For example, losses are greater when
manure remains on the land surface rather than being incorporated into
the soil, and are particularly high when spray application is
performed. Environmental conditions such as soil acidity and moisture
content also affect the extent of volatilization. Losses are reduced by
the presence of growing plants. Ammonia also readily volatilizes from
lagoons.
Particulate emissions from AFOs may include dried manure, feed,
epithelial cells, hair, and feathers. The airborne particles make up an
organic dust, which includes endotoxin (the toxic protoplasm liberated
when a microorganism dies and disintegrates), adsorbed gases, and
possibly steroids. At least 50 percent of dust emissions from swine
operations are believed to be respirable (small enough to be inhaled
deeply into the lungs).
3. A National Study of Nitrogen Sources to Watersheds
In 1994, the USGS analyzed nitrogen sources to 107 watersheds.
Potential sources included manure (both point and nonpoint sources),
fertilizers, point sources, and atmospheric deposition. The ``manure''
source estimates include waste from both confined and unconfined
animals. As may be expected, the USGS found that proportions of
nitrogen originating from various sources differ according to climate,
hydrologic conditions, land use, population, and physical geography.
Results of the analysis for selected watersheds for the 1987 base year
show that in some instances, manure nitrogen is a large portion of the
total nitrogen added to the watershed. The study showed that, for
following nine watersheds, more than 25 percent of nitrogen originates
from manure: Trinity River, Texas; White River, Arkansas; Apalachicola
River, Florida; Altamaha River, Georgia; Potomac River, Washington,
D.C.; Susquehanna River, Pennsylvania; Platte River, Nebraska; Snake
River, Idaho; and San Joaquin River, California. Of these, California,
Texas, Florida, Arkansas, and Idaho have large populations of confined
animals.
4. State Level Studies of Feedlot Pollutants Reaching Surface Waters
There are many studies demonstrating surface water impacts from
animal feeding operations. These impacts have been documented for at
least the past decade. For example, in 1991, the U.S. Fish and Wildlife
Service (FWS) reported on suspected impacts from a large number of
cattle feedlots on Tierra Blanca Creek, upstream of the Buffalo Lake
National Wildlife Refuge in the Texas Panhandle. FWS found elevated
aqueous concentrations of ammonia, chemical oxygen demand, coliform
bacteria, chloride, nitrogen, and volatile suspended solids; they also
found elevated concentrations of the feed additives copper and zinc in
the creek sediment.
According to Arkansas' 1996 Water Quality Inventory Report, a
publication of the Arkansas Department of Environmental Protection,
water in the Grand Neosho basin only partially supports aquatic life.
Land uses there, primarily confined animal feeding operations including
poultry production and pasture management, are major sources of
nutrients and chronic high turbidity. Pathogens sampled in the Muddy
Fork Hydrologic Unit Area, in
[[Page 2981]]
the Arkansas River basin, also exceed acceptable limits for primary
contact recreation (swimming). This problem was reported in the 1994
water quality inventory, and it, too, was traced to extensive poultry,
swine, and dairy operations in the Moore's Creek basin. Essentially,
all parts of the subwatershed are impacted by these activities.
Currently, the Muddy Fork Hydrologic Unit Area Project is a USDA
agricultural assistance, technology transfer, and demonstration
project. A section 319 water quality monitoring operation is also
ongoing in the hydrologic unit area.
In 1997, the Hoosier Environmental Council documented the reduction
in biodiversity due to AFOs in a study of three Indiana stream systems.
That study found that waters downstream of animal feedlots (mainly hog
and dairy operations) contained fewer fish and a limited number of
species of fish in comparison with reference sites. It also found
excessive algal growth, altered oxygen content, and increased levels of
ammonia, turbidity, pH, and total dissolved solids.
C. What Are the Potential and Observed Impacts?
Pollutants in animal manures can impair surface waters. Such
impairments have resulted in fish kills; eutrophication and algal
blooms; contamination of shellfish, and subsequent toxin and pathogen
transmission up the food chain; increased turbidity and negative
impacts to benthic organisms; and reduced biodiversity when rivers and
streams become uninhabitable by resident species. These manure
pollutants can also deteriorate soil quality and make it toxic to
plants. In addition to these ecological impacts, pollutants in animal
manures can present a range of risks to human health when they
contaminate drinking water or shellfish, and when they are present in
recreational waters.
1. Ecological Impacts
a. Fish Kills and Other Fishery Impacts. Fish kills are one of the
most dramatic impacts associated with manure reaching surface water.
Spills, dry-weather discharges, and runoff can carry pollutants in
manure to rivers and streams and can result in serious fish kills.
During the years 1987 through 1997, at least 47 incidents of fish kills
have been associated with hog manure. Another 8 fish kills were
attributed to poultry waste, and 2 with beef/dairy manure. An
additional 20 fish kills were associated with animal manure for which
one specific animal type was not identified. These incidents were
reported by the Iowa Department of Natural Resources, the Maryland
Department of the Environment, the Natural Resources Defense Council,
several citizen's groups, and numerous newspapers. These incidents are
not reflective of all states. In Illinois alone, records indicate that
171 fish kills attributable to manure discharges were investigated by
Illinois Environmental Protection Agency personnel between 1979 and
1998. Thousands of fish are typically killed by one of these events.
Ammonia is highly toxic to aquatic life and is a leading cause of
fish kills. In a May 1997 incident in Wabasha County, Minnesota,
ammonia in a dairy cattle manure discharge killed 16,500 minnows and
white suckers. Ammonia and other pollutants in manure exert a direct
biochemical oxygen demand (BOD) on the receiving water. As ammonia is
oxidized, dissolved oxygen is consumed. Moderate depressions of
dissolved oxygen are associated with reduced species diversity, while
more severe depressions can produce fish kills.
Nitrites pose additional risks to aquatic life: if sediments are
enriched with nutrients, the concentrations of nitrites on the
overlying water may be raised enough to cause nitrite poisoning or
``brown blood disease'' in fish.
Excess nutrients result in eutrophication (see section V.C.1.b,
which follows). Eutrophication is associated with blooms of a variety
of organisms that are toxic to both fish and humans. This includes the
estuarine dinoflagellate Pfiesteria piscicida, which is implicated in
several fish kills and fish disease events. Pfiesteria has been
implicated as the primary causative agent of many major fish kills and
fish disease events in North Carolina estuaries and coastal areas, as
well as in Maryland and Virginia tributaries to the Chesapeake Bay. In
1997, hog operations were identified as a potential cause of a
Pfiesteria outbreak in North Carolina rivers that resulted in 450,000
fish killed. Also that same year, poultry operations were linked to
Pfiesteria outbreaks in the Pokomoke River and Kings Creek (both in
Maryland) and in the Chesapeake Bay, in which tens of thousands of fish
were killed.
The presence of estrogen and estrogen-like compounds in surface
water has caused much concern. These hormones have been found in animal
manures and runoff from fields where manure has been applied. The
ultimate fate of hormones in the environment is unknown, although early
studies indicate that common soil or fecal bacteria cannot metabolize
estrogen. When present in high enough concentrations in the
environment, hormones and other endocrine disruptors including
pesticides are linked to reduced fertility, mutations, and the death of
fish. Estrogen hormones have been implicated in widespread reproductive
disorders in a variety of wildlife. There is evidence that fish in some
streams are experiencing endocrine disruption and that contaminants
including pesticides may be the cause, though there is no evidence
linking these effects to CAFOs.
b. Eutrophication and Algal Growth. Eutrophication is the process
in which phosphorus and nitrogen over-enrich water bodies and disrupt
the balance of life in that water body. As a result, the excess
nutrients cause fast-growing algae blooms. The 1998 National Water
Quality Inventory indicates that excess algal growth is the seventh
leading stressor in lakes, ponds, and reservoirs. Rapid growth of algae
can lower the dissolved oxygen content of a water body to levels
insufficient to support fish and invertebrates. Eutrophication can also
affect phytoplankton and zooplankton population diversity, abundance,
and biomass, and increase the mortality rates of aquatic species.
Floating algal mats can reduce the penetration of sunlight in the water
column and thereby limit growth of seagrass beds and other submerged
vegetation. This in turn reduces fish and shellfish habitat. This
reduction in submerged aquatic vegetation adversely affects both fish
and shellfish populations.
Increased algal growth can also raise the pH of waterbodies, as
algae consume dissolved carbon dioxide to support photosynthesis. This
elevated pH can harm the gill epithelium of aquatic organisms. The pH
may then drop rapidly at night, when algal photosynthesis stops. In
extreme cases, such pH fluctuations can severely stress aquatic
organisms.
Eutrophication is also a factor in the growth of toxic
microorganisms, such as cyanobacteria (a toxic algae) and Pfiesteria
piscicida, which can affect human health as well. Decay of algal blooms
and night-time respiration can further depress dissolved oxygen levels,
potentially leading to fish kills and reduced biodiversity. In
addition, toxic algae such as cyanobacteria release toxins as they die,
which can severely impact wildlife as well as humans. Researchers have
documented stimulation of Pfiesteria growth by swine effluent
discharges, and have shown that the organism's growth can be highly
stimulated by both inorganic
[[Page 2982]]
and organic nitrogen and phosphorus enrichments.
c. Wildlife Impacts. As noted earlier, reduction in submerged
aquatic vegetation due to algal blooms is the leading cause of
biological decline in Chesapeake Bay, adversely affecting both fish and
shellfish populations. In marine ecosystems, blooms known as red or
brown tides have caused significant mortality in marine mammals. In
freshwater, cyanobacterial toxins have caused many incidents of
poisoning of wild and domestic animals that have consumed impacted
waters.
Even with no visible signs of the algae blooms, shellfish such as
oysters, clams and mussels can carry the toxins produced by some types
of algae in their tissue. Shellfish are filter feeders which pass large
volumes of water over their gills. As a result, they can concentrate a
broad range of microorganisms in their tissues. Concentration of toxins
in shellfish provides a pathway for pathogen transmission to higher
trophic organisms. Information is becoming available to assess the
health effects of contaminated shellfish on wildlife receptors. Earlier
this year, the death of over 400 California sea lions was linked to
ingestion of mussels contaminated by a bloom of toxic algae. Previous
incidents associated the deaths of manatees and whales with toxic and
harmful algae blooms.
In August 1997, the National Oceanic and Atmospheric Administration
(NOAA) released The 1995 National Shellfish Register of Classified
Growing Waters. The register characterizes the status of 4,230
shellfish-growing water areas in 21 coastal states, reflecting an
assessment of nearly 25 million acres of estuarine and non-estuarine
waters. NOAA found that 3,404 shellfish areas had some level of
impairment. Of these, 110 (3 percent) were impaired to varying degrees
by feedlots, and 280 (8 percent) were impaired by ``other agriculture''
which could include land where manure is applied.
Avian botulism and avian cholera have killed hundreds of thousands
of migratory waterfowl in the past. Although outbreaks of avian
botulism have occurred since the beginning of the century, most
occurrences have been reported in the past twenty years, which
coincides with the trend toward fewer and larger AFOs. The connection
between nutrient runoff, fish kills, and subsequent outbreaks of avian
botulism was made in 1999 at California's Salton Sea, when almost 8
million fish died in one day. The fish kill was associated with runoff
from surrounding farms, which carried nutrients and salts into the
Salton Sea. Those nutrients caused algae blooms which in turn lead to
large and sudden fish kills. Since the 1999 die off, the number of
endangered brown pelicans infected with avian botulism increased to
about 35 birds a day. In addition, bottom feeding birds can be quite
susceptible to metal toxicity, because they are attracted to shallow
feedlot wastewater ponds and waters adjacent to feedlots. Metals can
remain in aquatic ecosystems for long periods of time because of
adsorption to suspended or bed sediments or uptake by aquatic biota.
Reduction in biodiversity due to AFOs has been documented in a 1997
study of three Indiana stream systems. That study shows that waters
downstream of animal feedlots (mainly hog and dairy operations)
contained fewer fish and a limited number of species of fish in
comparison with reference sites. The study also found excessive algal
growth, altered oxygen content, and increased levels of ammonia,
turbidity, pH, and total dissolved solids. Multi-generation animal
studies have found decreases in birth weight, post-natal growth, and
organ weights among mammals prenatally exposed to nitrite. Finally,
hormones and pesticides have been implicated in widespread reproductive
disorders in a variety of wildlife.
d. Other Aquatic Ecosystem Imbalances. Changes to the pH balance of
surface water also threaten the survival of the fish and other aquatic
organisms. Data from Sampson County, North Carolina show that ``ammonia
rain'' has increased as the hog industry has grown, with ammonia levels
in rain more than doubling between 1985 and 1995. In addition, excess
nitrogen can contribute to water quality decline by increasing the
acidity of surface waters.
In fresh waters, increasing salinity can also disrupt the balance
of the ecosystem, making it difficult for resident species to remain.
Salts also contribute to the degradation of drinking water supplies.
Trace elements (e.g., arsenic, copper, selenium, and zinc) may also
present ecological risks. Antibiotics, pesticides, and hormones may
have low-level, long-term ecosystem effects.
2. Drinking Water Impacts
Nitrogen in manure is easily transformed into nitrate form, which
can be transported to drinking water sources and present a range of
health risks. In 1990, PA found that nitrate is the most widespread
agricultural contaminant in drinking water wells, and estimated that
4.5 million people are exposed to elevated nitrate levels from wells.
In 1995, several private wells in North Carolina were found to be
contaminated with nitrates at levels 10 times higher than the State's
health standard; this contamination was linked with a nearby hog
operation. The national primary drinking water standard (Maximum
Contaminant Level, or MCL) for nitrogen (nitrate, nitrite) is 10
milligrams per liter (mg/L). In 1982, nitrate levels greater than 10
mg/L were found in 32 percent of the wells in Sussex County, Delaware;
these levels were associated with local poultry operations. In
southeastern Delaware and the Eastern Shore of Maryland, where poultry
production is prominent, over 20 percent of wells were found to have
nitrate levels exceeding 10 mg/L. Nitrate is not removed by
conventional drinking water treatment processes. Its removal requires
additional, relatively expensive treatment units.
Algae blooms triggered by nutrient pollution can affect drinking
water by clogging treatment plant intakes, producing objectionable
tastes and odors, and increasing production of harmful chlorinated
byproducts (e.g., trihalomethanes) by reacting with chlorine used to
disinfect drinking water. As aquatic bacteria and other microorganisms
degrade the organic matter in manure, they consume dissolved oxygen.
This can lead to foul odors and reduce the water's value as a source of
drinking water. Increased organic matter in drinking water sources can
also lead to excessive production of harmful chlorinated byproducts,
resulting in higher drinking water treatment costs.
Pathogens can also threaten drinking water sources. Surface waters
are typically expected to be more prone than groundwater to
contamination by pathogens such as Escherichia coli and Cryptosporidium
parvum. However, groundwater in areas of sandy soils, limestone
formations, or sinkholes are particularly vulnerable. In a 1997 survey
of drinking water standard violations in six states over a four-year
period, the U.S. General Accounting Office noted in its 1997 report
Drinking Water: Information on the Quality of Water Found at Community
Water Systems and Private Wells that bacterial standard violations
occurred in up to 6 percent of community water systems each year and in
up to 42 percent of private wells. (Private wells are more prone than
public wells to contamination, since they tend to be shallower and
therefore more susceptible to contaminants leaching from the surface.)
In cow pasture areas of Door County, Wisconsin, where a thin topsoil
layer is underlain by fractured limestone bedrock, groundwater wells
have
[[Page 2983]]
commonly been shut down due to high bacteria levels.
Each of these impacts can result in increased drinking water
treatment costs. For example, California's Chino Basin estimates a cost
of over $1 million per year to remove the nitrates from drinking water
due to loadings from local dairies. Salt load into the Chino Basin from
local dairies is over 1,500 tons per year, and the cost to remove that
salt by the drinking water treatment system ranges from $320 to $690
for every ton. In Iowa, Des Moines Water Works planned to spend
approximately $5 million in the early 1990's to install a treatment
system to remove nitrates from their main sources of drinking water,
the Raccoon and Des Moines Rivers. Agriculture was cited as a major
source of the nitrate contamination, although the portion attributable
to animal waste is unknown. In Wisconsin, the City of Oshkosh has spent
an extra $30,000 per year on copper sulfate to kill the algae in the
water it draws from Lake Winnebago. The thick mats of algae in the lake
have been attributed to excess nutrients from manure, commercial
fertilizers, and soil. In Tulsa, Oklahoma, excessive algal growth in
Lake Eucha is associated with poultry farming. The city spends $100,000
per year to address taste and odor problems in the drinking water.
3. Human Health Impacts
Human and animal health impacts are primarily associated with
drinking contaminated water, contact with contaminated water, and
consuming contaminated shellfish.
a. Nutrients. The main hazard to human health from nutrients is
elevated nitrate levels in drinking water. In particular, infants are
at risk from nitrate poisoning (also referred to as methemoglobinemia
or ``blue baby syndrome''), which results in oxygen starvation and is
potentially fatal. Nitrate toxicity is due to its metabolite nitrite,
which is formed in the environment, in foods, and in the human
digestive system. In addition to blue baby syndrome, low blood oxygen
due to methemoglobinemia has also been linked to birth defects,
miscarriages, and poor health in humans and animals. These effects are
exacerbated by concurrent exposure to many species of bacteria in
water.
Studies in Australia compiled in a 1993 review by Bruning-Fann and
Kaneene showed an increased risk of congenital malformations with
consumption of high-nitrate groundwater. Multi-generation animal
studies have found decreases in birth weight and post-natal growth and
organ weights associated with nitrite exposure among prenatally exposed
mammals. Nitrate-and nitrite-containing compounds also have the ability
to cause hypotension or circulatory collapse. Nitrate metabolites such
as N-nitroso compounds (especially nitrosamines) have been linked to
severe human health effects such as gastric cancer.
Eutrophication can also affect human health by enhancing growth of
harmful algal blooms that release toxins as they die. In marine
ecosystems, harmful algal blooms such as red tides can result in human
health impacts via shellfish poisoning and recreational contact. In
freshwater, blooms of cyanobacteria (blue-green algae) may pose a
serious health hazard to humans via water consumption. When
cyanobacterial blooms die or are ingested, they release water-soluble
compounds that are toxic to the nervous system and liver. Algal blooms
can also increase production of harmful chlorinated byproducts (e.g.,
trihalomethanes) by reacting with chlorine used to disinfect drinking
water. These substances can result in increased health risks.
b. Pathogens. Livestock manure has been identified as a potential
source of pathogens by public health officials. Humans may be exposed
to pathogens via consumption of contaminated drinking water and
shellfish, or by contact and incidental ingestion during recreation in
contaminated waters. Relatively few microbial agents are responsible
for the majority of human disease outbreaks from water-based exposure
routes. Intestinal infections are the most common type of waterborne
infection, and affect the most people. A May, 2000 outbreak of
Escherichia coli O157:H7 in Walkerton, Ontario resulted in at least
seven deaths and 1,000 cases of intestinal problems; public health
officials theorize that flood waters washed manure contaminated with E.
coli into the town's drinking water well.
A study for the period 1989 to 1996 revealed that infections caused
by the protozoa Giardia sp. and Cryptosporidium parvum were the leading
cause of infectious water-borne disease outbreaks in which an agent was
identified. C. parvum is particularly associated with cows, and can
produce gastrointestinal illness, with symptoms such as severe
diarrhea. Healthy people typically recover relatively quickly from
gastrointestinal illnesses such as cryptosporidiosis, but such diseases
can be fatal in people with weakened immune systems. This subpopulation
includes children, the elderly, people with HIV infection, chemotherapy
patients, and those taking medications that suppress the immune system.
In Milwaukee, Wisconsin in 1993, C. parvum contamination of a public
water supply caused more than 100 deaths and an estimated 403,000
illnesses. The source was not identified, but possible sources include
runoff from cow manure application sites.
In 1999, an E. coli outbreak occurred at the Washington County Fair
in New York State. This outbreak, possibly the largest waterborne
outbreak of E. coli O157:H7 in U.S. history, took the lives of two fair
attendees and sent 71 others to the hospital. An investigation
identified 781 persons with confirmed or suspected illness related to
this outbreak. The outbreak is thought to have been caused by
contamination of the Fair's Well 6 by either a dormitory septic system
or manure runoff from the nearby Youth Cattle Barn.
Contact with pathogens during recreational activities in surface
water can also result in infections of the skin, eye, ear, nose, and
throat. In 1989, ear and skin infections and intestinal illnesses were
reported in swimmers as a result of discharges from a dairy operation
in Wisconsin.
As discussed in the previous section, excess nutrients result in
eutrophication, which is associated with the growth of a variety of
organisms that are toxic to humans either through ingestion or contact.
This includes the estuarine dinoflagellate Pfiesteria piscicida. While
Pfiesteria is primarily associated with fish kills and fish disease
events, the organism has also been linked with human health impacts
through dermal exposure. Researchers working with dilute toxic cultures
of Pfiesteria exhibited symptoms such as skin sores, severe headaches,
blurred vision, nausea/vomiting, sustained difficulty breathing, kidney
and liver dysfunction, acute short-term memory loss, and severe
cognitive impairment. People with heavy environmental exposure have
exhibited symptoms as well. In a 1998 study, such environmental
exposure was definitively linked with cognitive impairment, and less
consistently linked with physical symptoms.
Even with no visible signs of the algae blooms, shellfish such as
oysters, clams and mussels can carry the toxins produced by some types
of algae in their tissue. These can then affect people who eat the
contaminated shellfish. The 1995 National Shellfish Register of
Classified Growing Waters published by the National Oceanic and
Atmospheric Administration (NOAA) identifies over 100 shellfish bed
impairments (shellfish not approved for harvest) due to feedlots.
[[Page 2984]]
c. Trace Elements. Some of the trace elements in manure are
essential nutrients for human physiology; however, they can induce
toxicity at elevated concentrations. These elements include the feed
additives zinc, arsenic, copper, and selenium. Although these elements
are typically present in relatively low concentrations in manure, they
are of concern because of their ability to persist in the environment
and to bioconcentrate in plant and animal tissues. These elements could
pose a hazard if manure is overapplied to land.
Trace elements are associated with a variety of illnesses. For
example, arsenic is carcinogenic to humans, based on evidence from
human studies; some of these studies have found increased skin cancer
and mortality from multiple internal organ cancers in populations who
consumed drinking water with high levels of inorganic arsenic. Arsenic
is also linked with noncancer effects, including hyperpigmentation and
possible vascular complications. Selenium is associated with liver
dysfunction and loss of hair and nails, and zinc can result in changes
in copper and iron balances, particularly copper deficiency anemia.
d. Odors. Odor is a significant concern because of its documented
effect on moods, such as increased tension, depression, and fatigue.
Odor also has the potential for vector attraction, and has been
associated with a negative impact on property values. Additionally,
many of the odor-causing compounds in manure can cause physical health
impacts. For example, hydrogen sulfide is toxic, and ammonia gas is a
nasal and respiratory irritant.
4. Recreational Impacts
As discussed above, CAFO pollutants contribute to the increase in
turbidity, increase in eutrophication and algal blooms, and reduction
of aquatic populations in rivers, lakes, and estuaries. Impaired
conditions interfere with recreational activities and aesthetic
enjoyment of these water bodies. Recreational activities include
fishing, swimming, and boating. Fishing is reduced when fish
populations decrease. Swimming is limited by increased risk of
infection when pathogens are present. Boating and aesthetic enjoyment
decline with the decreased aesthetic appeal caused by loss of water
clarity and water surfaces clogged by algae. These impacts are more
fully discussed in Section XI of this preamble.
VI. What Are Key Characteristics of the Livestock and Poultry
Industries?
A. Introduction and Overview
1. Total Number and Size of Animal Confinement Operations
USDA reports that there were 1.1 million livestock and poultry
farms in the United States in 1997. This number includes all operations
that raise beef, dairy, pork, broilers, egg layers, and turkeys, and
includes both confinement and non-confinement (grazing and rangefed)
production. Only operations that raise animals in confinement will be
subject to today's proposed regulations.
For many of the animal sectors, it is not possible to precisely
determine what proportion of the total livestock operations are
confinement operations and what proportion are grazing operations only.
Data on the number of beef and hog operations that raise animals in
confinement are available from USDA. Since most large dairies have
milking parlors, EPA assumes that all dairy operations are potentially
confinement operations. In the poultry sectors, there are few small
non-confinement operations and EPA assumes that all poultry operations
confine animals. EPA's analysis focuses on the largest facilities in
these sectors only.
Using available 1997 data from USDA, EPA estimates that there are
about 376,000 AFOs that raise or house animals in confinement, as
defined by the existing regulations (Table 6-1). Table 6-1 presents the
estimated number of AFOs and the corresponding animal inventories for
1997 across select size groupings. These estimates are based on the
number of ``animal units'' (AU) as defined in the existing regulations
at 40 CFR 122, with the addition of the revisions that are being
proposed for immature animals and chickens. Data shown in Table 6-1 are
grouped by operations with more than 1,000 AU and operations with fewer
than 300 AU.
As shown in Table 6-1, there were an estimated 12,660 AFOs with
more that 1,000 AU in 1997 that accounted for about 3 percent of all
confinement operation. In most sectors, these larger-sized operations
account for the majority of animal production. For example, in the
beef, turkey and egg laying sectors, operations with more than 1,000 AU
accounted for more than 70 percent of all animal inventories in 1997;
operations with more than 1,000 AU accounted for more than 50 percent
of all hog, broiler, and heifer operations (Table 6-1). In contrast,
operations with fewer than 300 AU accounted for 90 percent of all
operations, but a relatively smaller share of animal production.
USDA personnel have reviewed the data and assumptions used to
derive EPA's estimates of the number of confinement operations.
Detailed information on how EPA estimated the number of AFOs that may
be subject to today's proposed regulations can be found in the
Development Document for the Proposed Revisions to the National
Pollutant Discharge Elimination System Regulation and the Effluent
Guidelines for Concentrated Animal Feeding Operations (referred to as
the ``Development Document'').
Table 6-1.--Number of AFOs and Animal On-Site, by Size Group, 1997
----------------------------------------------------------------------------------------------------------------
>1000 AU
Sector/Size category Total AFOs \1\ 300 AU Total >1000 AU 300 AU
----------------------------------------------------------------------------------------------------------------
(Number of operations)
(Number of animals, 1000's)
----------------------------------------------------------------------------------------------------------------
Cattle.................................. 106,080 2,080 102,000 26,840 22,790 2,420
Veal.................................... 850 10 640 270 10 210
Heifers................................. 1,250 300 200 850 450 80
Dairy................................... 116,870 1,450 109,740 9,100 2.050 5,000
Hogs: GF \2\............................ 53,620 1,670 48,700 18,000 9,500 2,700
Hogs: FF \2\............................ 64,260 2,420 54,810 38,740 21,460 5,810
Broilers................................ 34,860 3,940 20,720 1,905,070 1,143,040 476,270
Layers: wet \3\......................... 3,110 50 2,750 392,940 275,060 58,940
Layers: dry \3\......................... 72,060 590 70,370 392,940 275,060 58,940
Turkeys................................. 13,720 370 12,020 112,800 95,880 2,260
-----------------------------------------------------------------------
[[Page 2985]]
Total \4\........................... 375,700 12,660 336,590 NA NA NA
----------------------------------------------------------------------------------------------------------------
Source: Derived by USDA from published USDA/NASS data, including 1997 Census of Agriculture. In some cases,
available data are used to interpolate data for some AU size categories (see EPA's Development Document). Data
for veal and heifer operations are estimated by USDA. Totals may not add due to rounding.
\1\ As defined for the proposed CAFO regulations, one AU is equivalent to: one slaughter or feeder cattle, calf
or heifer; 0.7 mature dairy cattle; 2.5 hogs (over 55 pounds) or 5 nursery pigs; 55 turkeys; and 100 chickens
regardless of the animal waste system used.
\2\ ``Hogs: FF'' are farrow-finish (includes breeder and nursery pigs); ``Hogs: GF'' are grower-finish only.
\3\ ``Layers: wet'' are operations with liquid manure systems; ``Layers: dry'' are operations with dry systems.
\4\ ``Total AFOs'' eliminates double counting of operations with mixed animal types. Based on survey level
Census data for 1992, operations with mixed animal types account for roughly 25 percent of total AFOs.
2. Total Number of CAFOs Subject to the Proposed Regulations
Table 6-2 presents the estimated number of operations that would be
defined as a CAFO under each of the two regulatory alternatives being
proposed. The ``two-tier structure'' would define as CAFOs all animal
feeding operations with more than 500 AU. The ``three-tier structure''
would define as CAFOs all animal feeding operations with more than
1,000 AU and any operation with more than 300 AU, if they meet certain
``risk-based'' conditions, as defined in Section VII. Table 6-2
presents the estimated number of CAFOs in terms of number of operations
with more than 1,000 AU and operations for each co-proposed middle
category (operations with between 500 and 1,000 AU and between 300 and
1,000 AU, respectively).
Based on available USDA data for 1997, EPA estimates that both
proposed alternative structures would regulate about 12,660 operations
with more than 1,000 AU. This estimate adjusts for operations with more
than a single animal type. The two alternatives differ in the manner in
which operations with less than 1,000 AU would be defined as CAFOs and,
therefore, subject to regulation, as described in Section VII. As shown
in Table 6-2, in addition to the 12,660 facilities with more than 1,000
AU, the two-tier structure at 500 AU threshold would regulate an
additional 12,880 operations with between 500 and 1,000 AU. Including
operations with more than 1,000 AU, the two-tier structure regulates a
total of 25,540 AFOs that would be subject to the proposed regulations
(7 percent of all AFOs).
Under the three-tier structure, an estimated 39,330 operations
would be subject to the proposed regulations (10 percent of all AFOs),
estimated as the total number of animal confinement operations with
more than 300 AU. See Table 6-1. Of these, EPA estimates that a total
of 31,930 AFOs would be defined as CAFOs (9 percent of all AFOs) and
would need to obtain a permit (Table 6-2), while an estimated 7,400
operations would certify that they do not need to obtain a permit.
Among those operations needing a permit, an estimated 19,270 operations
have between 300 to 1,000 AU. For more information, see the Economic
Analysis.
Table 6-2. Number of Potential CAFOs by Select Regulatory Alternative, 1997
--------------------------------------------------------------------------------------------------------------------------------------------------------
``Two-tier'' ``Three-
Sector/Size category ------------------------------------------------------------------ Tier''
>300 AU >500 AU >750 AU >300 AU >500 AU >750AU >300 AU
----------------------------------------------------------------------------------------------------------------------------------------------
(#Operations)
(%Total) (#) (%Total)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cattle.......................................................... 4,080 3,080 2,480 4 3 2 3,210 3
Veal............................................................ 210 90 40 25 10 4 140 16
Heifers......................................................... 1,050 800 420 84 64 34 980 78
Dairy........................................................... 7,140 3,760 2,260 6 3 2 6,480 6
Hogs: GF \1\.................................................... 4,920 2,690 2,300 9 5 4 2,650 5
Hogs: FF \1\.................................................... 9,450 5,860 3,460 15 9 5 5,700 9
Broilers........................................................ 14,140 9,780 7,780 41 28 22 13,740 39
Layers: wet \2\................................................. 360 360 210 12 12 7 360 12
Layers: dry \2\................................................. 1,690 1,280 1,250 2 2 2 1,650 2
Turkeys......................................................... 2,100 1,280 740 15 9 5 2,060 15
Total \3\................................................... 39,320 25,540 19,100 10.5 6.8 5.1 31,930 8.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: See Table 6-1.
\1\FF =farrow-finish (includes breeder and nursery pigs); GF=grower finish.
\2\ ``Layers: wet'' are operations with liquid manure systems. ``Layers: dry'' are operations with dry systems.
\3\ ``Total'' eliminates double counting of operations with mixed animal types (see Table 6-1).
EPA estimated the number of operations that may be defined as CAFOs
under the three-tier structure using available information and compiled
data from USDA, State Extension experts, and agricultural
professionals. These estimates rely on information about the percentage
of operations in each sector that would be impacted by the ``risk-
based'' criteria described in Section VII. In some cases, this
information is available on a state or regional basis only and is
extrapolated to all operations nationwide. EPA's estimates reflect
information from a majority of professional experts in the field.
Greater weight is given to information obtained by State Extension
agents, since they have broader knowledge of the industry in their
state. More detailed information on how EPA estimated the number of
operations that may be affected by the proposed regulations under the
three-
[[Page 2986]]
tier structure is available in the rulemaking record and in the
Development Document.
EPA is also requesting comment on two additional options for the
scope of the rule. One of these is an alternative two-tier structure
with a threshold of 750 AU. Under this option, an estimated 19,100
operations, adjusting for operations with more than a single animal
type, would be defined as CAFOs. This represents about 5 percent of all
CAFOs, and would affect an estimated 2,930 beef, veal, and heifer
operations, 2,260 dairies, and 5,750 swine and 9,980 poultry operations
(including mixed operations). Under the other alternative, a variation
of the three-tier structure being co-proposed today, the same 39,320
operations with 300 AU or greater would potentially be defined as
CAFOs. However, the certification conditions for being defined as a
CAFO would be different for operations with 300 to 1,000 AU (as
described later in Section VII). EPA has not estimated how many
operations would be defined as CAFOs under this alternative three-tier
approach, although EPA expects that it would be fewer than the 31,930
estimated for the three-tier approach being proposed today. If after
considering comments, EPA decides to further explore this approach, it
will conduct a full analysis of the number of potentially affected
operations.
EPA does not anticipate that many AFOs with less than 500 AU (two-
tier structure) or 300 AU (three-tier structure) will be subject to the
proposed requirements. In the past 20 years, EPA is aware of very few
AFOs that have been designated as CAFOs. Based on available USDA
analyses that measure excessive nutrient application on cropland in
some production areas and other farm level data by sector, facility
size and region, EPA estimates that designation may bring an additional
50 operations under the proposed two-tier structure each year
nationwide. EPA assumed this estimate to be cumulative such that over a
10-year period approximately 500 AFOs may become designated as CAFOs
and therefore subject to the proposed regulations. EPA expects these
operations to consist of beef, dairy, farrow-finish hog, broiler and
egg laying operations that are determined to be significant
contributors to water quality impairment. Under the three-tier
structure, EPA estimates that fewer operations would be designated as
CAFOs, with 10 dairy and hog operations may be designated each year, or
100 operations over a 10-year period. Additional information is
provided in the Economic Analysis.
EPA expects that today's proposed regulations would mainly affect
livestock and poultry operations that confine animals. In addition to
CAFOs, however, the proposed regulations would also affect businesses
that contract out the raising or finishing production phase to a CAFO
but exercise ``substantial operational control'' over the CAFO (as
described in Section VII.C.6).
EPA expects that affected businesses may include packing plants and
slaughtering facilities that enter into a production contract with a
CAFO. Under a production contract, a contractor (such as a processing
firm, feed mill, or other animal feeding operation) may either own the
animals and/or may maintain control over the type of production
practices used by the CAFO. Processor firms that enter into a marketing
contract with a CAFO are not expected to be subject to co-permitting
requirements since the mechanism for ``substantial operational
control'' generally do not exist. Given the types of contract
arrangements that are common in the hog and poultry industries, EPA
expects that packers/slaughterers in these sectors may be subject to
the proposed co-permitting requirements.
As discussed later in Sections VI.D.1 and VI.E.1, EPA estimates
that 94 meat packing plants that slaughter hogs and 270 poultry
processing facilities may be subject to the proposed co-permitting
requirements. Other types of processing firms, such as further
processors, food manufacturers, dairy cooperatives, and renderers, are
not expected to be affected by the co-permitting requirements since
these operations are further up the marketing chain and do not likely
contract with CAFOs to raise animals. Fully vertically integrated
companies (e.g., where the packer owns the CAFO) are not expected to
require a co-permit since the firm as the owner of the CAFO would
require only a single permit. EPA solicits comment on these assumptions
as part of today's rulemaking proposal. EPA also expects that non-CAFO,
crop farmers who receive manure from CAFOs would be affected under one
of the two co-proposed options relating to offsite management of manure
(see Section VII).
Additional information is provided in the Economic Impact Analysis
of Proposed Effluent Limitations Guidelines and National Pollutant
Discharge Elimination System for Concentrated Animal Feeding Operations
(referred to as ``Economic Impact Analysis'').
3. Manure and Manure Nutrients Generated Annually at AFOs
USDA's National Resources Conservation Service (NRCS) estimates
that 128.2 billion pounds of manure are ``available for land
application from confined AU'' from the major livestock and poultry
sectors. EPA believes these estimates equate to the amount of manure
that is generated at animal feeding operations since USDA's methodology
accounts for all manure generated at confinement facilities. USDA
reports that manure nutrients available for land application totaled
2.6 billion pounds of nitrogen and 1.4 billion pounds of phosphorus in
1997 (Table 6-3). USDA's estimates do not include manure generated from
other animal agricultural operations, such as sheep and lamb, goats,
horses, and other farm animal species.
Table 6-3. Manure and Manure Nutrients ``Available for Land Application'', 1997
----------------------------------------------------------------------------------------------------------------
USDA estimates: ``available for EPA estimates: Percentage share by
application'' from confined AU'' facility size group b
a -------------------------------------------
Sector ----------------------------------
Total Total Total >1000 AU >750 AU >500 AU >300AU
manure nitrogen phosphorus
----------------------------------------------------------------------------------------------------------------
(bill.
lbs) (Million pounds)
(Percent of total manure nutrients applied)
----------------------------------------------------------------------------------------------------------------
Cattle c.......................... 32.9 521 362 83 85 86 90
Dairy............................. 45.5 636 244 23 31 37 43
Hogs.............................. 16.3 274 277 55 63 69 78
All Poultry....................... 33.5 1,153 554 49 66 77 90
[[Page 2987]]
Total......................... 128.2 2,583 1,437 49 58 64 72
----------------------------------------------------------------------------------------------------------------
Source:
a Manure and nutrients are from USDA/NRCS using 1997 Census of Agriculture and procedures documented developed
by USDA. Numbers are ``dry state'' and reflect the amount of manure nutrient ``available for application from
confined AU'' and are assumed by EPA to coincide with manure generated at confined operations.
b Percentage shares are based on the share of animals within each facility size group for each sector (shown in
Table 6-1) across three facility size groups.
c ``Cattle'' is the sum of USDA's estimate for livestock operations ``with fattened cattle'' and ``with cattle
other than fattened cattle and milk cows.''
The contribution of manure and manure nutrients varies by animal
type. Table 6-3 shows that the poultry industry was the largest
producer of manure nutrients in 1997, accounting for 45 percent (1.2
billion pounds) of all nitrogen and 39 percent (0.6 billion pounds) of
all phosphorus available for land application that year. Among the
poultry sectors, EPA estimates that approximately 55 percent of all
poultry manure was generated by broilers, while layers generated 20
percent and turkeys generated 25 percent. The dairy industry was the
second largest producer of manure nutrients, generating 25 percent (0.6
billion pounds) of all nitrogen and 17 percent (0.2 billion pounds) of
all phosphorus (Table 6-3). Together, the hog and beef sectors
accounted for about one-fourth of all nitrogen and nearly 40 percent of
all phosphorus from manure.
Table 6-3 shows EPA's estimate of the relative contribution of
manure generated by select major facility size groupings, including
coverage for all operations with more than 1,000 AU, all operations
with more than 750 AU or 500 AU (two-tier structure), and all
operations with more than 300 AU (three-tier structure). EPA estimated
these shares based on the share of animals within each facility size
group for each sector, as shown in Table 6-1. Given the number of AFOs
that may be defined as CAFOs and subject to the proposed regulations
(Table 6-1), EPA estimates that the proposed effluent guidelines and
NPDES regulations will regulate 5 to 7 percent (two-tier structure) to
10 percent (three-tier structure) percent of AFOs nationwide. Coverage
in terms of manure nutrients generated will vary by the proposed
regulatory approach. As shown in Table 6-3, under the 500 AU two-tier
structure, EPA estimates that the proposed requirements will capture 64
percent of all CAFO manure; under the 750 AU two-tier structure, EPA
estimates that the proposed requirements will capture 58 percent of all
CAFO manure. Under the three-tier structure, EPA estimates that the
proposed requirements will capture 72 percent of all CAFO manure
generated annually (Table 6-3). The majority of this coverage (49
percent) is attributable to regulation of operations with more than
1,000 AU.
Additional information on the constituents found in livestock and
poultry manure and wastewater is described in Section V. Information on
USDA's estimates of nutrients available for land application and on the
relative consistency of manure for the main animal types is provided in
the Development Document.
B. Beef Subcategory
1. General Industry Characteristics
Cattle feedlots are identified under NAICS 112112 (SIC 0211, beef
cattle feedlots) and NAICS 112111, beef cattle ranching and farming
(SIC 0212, beef cattle, except feedlots). This sector comprises
establishments primarily engaged in feeding cattle and calves for
fattening, including beef cattle feedlots and feed yards (except
stockyards for transportation).
The beef cattle industry can be divided into four separate producer
segments:
Feedlot operations fatten or ``finish'' feeder cattle
prior to slaughter and constitute the final phase of fed cattle
production. Calves usually begin the finishing stage after 6 months of
age or after reaching at least 400 pounds. Cattle are typically held
for 150 to 180 days and weigh between 1,150 to 1,250 pounds (for
steers) or 1,050 to 1,150 pounds (for heifers) at slaughter.
Veal operations raise male dairy calves for slaughter. The
majority of calves are ``special fed'' or raised on a low-fiber diet
until about 16 to 20 weeks of age, when they weigh about 450 pounds.
Stocker or backgrounding operations coordinate the flow of
animals from breeding operations to feedlots by feeding calves after
weaning and before they enter a feedlot. Calves are kept between 60
days to 6 months or until they reach a weight of about 400 pounds.
Cow-calf producers typically maintain a herd of mature
cows, some replacement heifers, and a few bulls, and breed and raise
calves to prepare them for fattening at a feedlot. Calves typically
reach maturity on pasture and hay and are usually sold at weaning. Cow-
calf operators may also retain the calves and continue to raise them on
pasture until they reach 600 to 800 pounds and are ready for the
feedlot.
Animal feeding operations in this sector that may be affected by
today's proposed regulations include facilities that confine animals.
Information on the types of facilities in this sector that may be
covered by the proposed regulations is provided in Section VII.
USDA reports that there were more than 106,000 beef feedlots in
1997, with a total inventory of 26.8 million cattle (Table 6.1). Due to
ongoing consolidation in the beef sector, the total number of
operations has dropped by more than one-half since 1982, when there
were 240,000 operations raising fed cattle. EPA also estimates that
there were 850 veal operations raising 0.3 million head and 1,250
stand-alone heifer operations raising 0.9 million head in 1997. Only a
portion of these operations would be subject to the proposed
regulations.
As shown in Table 6-2, under the two-tier structure, EPA estimates
that there are 3,080 beef feedlots with more than 500 head (500 AU of
beef cattle). EPA also estimates that there are about 90 veal
operations and 800 heifer operations that may be subject to the
proposed regulations. Under the three-tier structure, EPA estimates
that 3,210 beef feedlots, 140 veal and 980 heifer
[[Page 2988]]
operations with more than 300 head (300 AU) would meet the ``risk-
based'' conditions described in Section VII and thus require a permit.
EPA expects that few operations that confine fewer than 500 AU of
beef, veal, or heifers, would be designated by the permit authority.
For the purpose of estimating costs, EPA assumes that no beef, veal, or
heifer operations would be designated as CAFOs and subject to the
proposed regulations under the three-tier structure. Under the two-tier
structure, EPA assumes that about four beef feedlots located in the
Midwest would be designated annually, or 40 beef feedlots projected
over a 10-year period.
The cattle feeding industry is concentrated in the Great Plains and
Midwestern states. The majority of feedlots are located in the Midwest.
However, the majority of large feedlots (i.e., operations with more
than 1,000 head) are located in four Great Plains states--Texas,
Kansas, Nebraska, and Colorado--accounting for nearly 80 percent of
annual fed cattle marketings. Table 6-1 shows that, although the
majority of beef feedlots (over 98 percent) have capacity below 1,000
head, larger feedlots with more than 1,000 head accounted for the
majority of animal production. In 1997, feedlots with more than 1,000
head accounted for 85 percent of the nation's fed cattle inventory and
sales. Cattle feeding has become increasingly concentrated over the
last few decades. Feedlots have decreased in number, but increased in
capacity. The decline in the number of operations is mostly among
feedlots with less than 1,000 head.
The majority of cattle and calves are sold through private
arrangements and spot market agreements. Production contracting is not
common in the beef sector. Most beef sector contracts are marketing
based where operations agree to sell packers a certain amount of cattle
on a predetermined schedule. Production contracts are uncommon, but may
be used to specialize in a single stage of livestock production. For
example, custom feeding operations provide finish feeding under
contract. Backgrounding or stocker operations raise cattle under
contract from the time the calves are weaned until they are on a
finishing ration in a feedlot. As shown by 1997 USDA data of animal
ownership, production contracts account for a relatively small share (4
percent) of beef production. These same data show that production
contracts are used to grow replacement breeding stock.
Despite the limited use of contracts for the finishing and raising
phase of production, EPA expects that no businesses, other than the
CAFO where the animals are raised, will be subject to the proposed co-
permitting requirements. Reasons for this assumption are based on data
from USDA on the use of production contracts and on animal ownership at
operations in this sector. Additional information is provided in
Section 2 of the Economic Analysis. EPA is seeking comment on this
assumption as part of today's notice.
2. Farm Production and Waste Management Practices
Beef cattle may be kept on unpaved, partly paved, or totally paved
lots. The majority of beef feedlots use unpaved open feedlots. In open
feedlots, protection from the weather is often limited to a windbreak
near the fence in the winter and/or sunshade in the summer; however,
treatment facilities for the cattle and the hospital area are usually
covered. Confinement feeding barns with concrete floors are also
sometimes used at feedlots in cold or high rainfall areas, but account
for only 1 to 2 percent of all operations. Smaller beef feedlots with
less than 1,000 head, especially in areas with severe winter weather
and high rainfall, may use open-front barns, slotted floor housing, or
housing with sloped gutters.
Wastes produced from beef operations include manure, bedding, and
contaminated runoff. Paved lots generally produce more runoff than
unpaved lots. Unroofed confinement areas typically have a system for
collecting and confining contaminated runoff. Excessively wet lots
result in decreased animal mobility and performance. For this reason,
manure is often stacked into mounds for improved drainage and drying,
as well as providing dry areas for the animals. If the barn has slotted
floors, the manure is collected beneath slotted floors, and is scraped
or flushed to the end of the barn where it flows or is pumped to a
storage area for later application via irrigation or transported in a
tank wagon. Waste may also be collected using flushing systems.
Waste from a beef feedlot may be handled as a solid or liquid.
Solid manure storage can range from simply constructed mounds within
the pens to large stockpiles. In some areas, beef feedlot operations
may use a settling basin to remove bulk solids from the pen runoff,
reducing the volume of solids prior to entering a storage pond,
therefore increasing storage capacity. A storage pond is typically
designed to hold the volume of manure and wastewater accumulated during
the storage period, including additional storage volume for normal
precipitation, minus evaporation, and storage volume to contain a 25-
year, 24-hour storm event. An additional safety volume termed
``freeboard'' is also typically built into the storage pond design.
Veal are raised almost exclusively in confinement housing,
generally using individual stalls or pens. Veal calves are raised on a
liquid diet and their manure is highly liquid. Manure is typically
removed from housing facilities by scraping or flushing from collection
channels and then flushing or pumping into liquid waste storage
structures, ponds, or lagoons.
Waste collected from the feedlot may be transported within the site
to storage, treatment, and use or disposal areas. Solids and semisolids
are typically transported using mechanical conveyance equipment,
pushing the waste down alleys, and transporting the waste in solid
manure spreaders. Flail-type spreaders, dump trucks, or earth movers
may also be used to transport these wastes. Liquids and slurries are
transferred through open channels, pipes, or in a portable liquid tank.
The most common form of utilization is land application. However, the
amount of cropland and pastureland that is available for manure
application varies at each operation. Cattle waste may also be used as
a bedding for livestock, marketed as compost, or used as an energy
source.
Additional information on the types of farm production and waste
management practices is provided in the Development Document.
C. Dairy Subcategory
1. General Industry Characteristics
Operations that produce milk are identified under NAICS 11212,
dairy cattle and milk production (SIC 0241, dairy farms).
A dairy operation may have several types of animal groups present,
including:
Calves (0-5 months);
Heifers (6-24 months);
Lactating dairy cows (i.e., currently producing milk);
and;
Cows close to calving and dry cows (i.e., not currently
producing milk); and
Bulls.
Animal feeding operations in this sector that may be affected by
today's proposed regulations include facilities that confine animals.
Information on the types of facilities in this sector that may be
covered by the proposed regulations is provided in Section VII.
In 1997, there were 116,900 dairy operations with a year-end
inventory of
[[Page 2989]]
9.1 million milk cows that produced 156.1 billion pounds of milk (Table
6.1). Only a portion of these operations would be subject to the
proposed regulations. As shown in Table 6.2, under the two-tier
structure, EPA estimates that there are 3,760 dairy operations that
confine more than 350 milk cows (i.e., 500 AU equivalent). Under the
three-tier structure, EPA estimates that 6,480 dairy operations with
more than 200 head (i.e., 300 AU equivalent) would meet the ``risk-
based'' conditions described in Section VII and thus require a permit.
Table 6-1 shows that dairies with fewer than 200 head account for
the majority (95 percent) of milking operations and account for 55
percent of the nation's milk cow herd. EPA expects that under the two-
tier structure designation of dairies with fewer than 350 milk cows
would be limited to about 22 operations annually, or 220 dairies
projected over a 10-year time period. Under the three-tier structure,
EPA expects annual designation of dairies with fewer than 200 milk cows
would be limited to about 5 operations, or 50 operations over a 10-year
period. EPA expects that designated facilities will be located in more
traditional farming regions.
More than one-half of all milk produced nationally is concentrated
among the top five producing states: California, Wisconsin, New York,
Pennsylvania, and Minnesota. Other major producing states include
Texas, Michigan, Washington, Idaho, and Ohio. Combined, these ten
states accounted for nearly 70 percent of milk production in 1997. Milk
production has been shifting from traditional to nontraditional milk
producing states. Operations in the more traditional milk producing
regions of the Midwest and Mid-Atlantic tend to be smaller and less
industrialized. Milk production at larger operations using newer
technologies and production methods is emerging in California, Texas,
Arizona, New Mexico, and Idaho. Milk production in these states is
among the fastest-growing in the nation, relying on economies of scale
and a specialization in milk production to lower per-unit production
costs. (Additional data on these trends are provided in Section IV.C).
Over the past few decades, the number of dairy operations and milk
cow inventories has dropped, while overall milk production has been
increasing. USDA reports that while the number of dairy operations
dropped by more than one-half from 277,800 in 1982 to 116,900 in 1997,
the amount of milk produced annually at these operations rose from
135.5 billion pounds to 156.1 billion pounds. These figures signal
trends toward increased consolidation, large gains in per-cow output,
and increases in average herd size per facility. From 1982 to 1997, the
average number of dairy cows per facility doubled from 40 cows to 80
cows per facility.
Although milk and dairy food production has become increasingly
specialized, it has not experienced vertical integration in the same
way as other livestock industries. The use of production contracts is
uncommon in milk production. In part, this is attributable to the large
role of farmer-owned, farmer-controlled dairy cooperatives, which
handle about 80 percent of the milk delivered to plants and dealers.
Milk is generally produced under marketing-type contracts through
verbal agreement with their buyer or cooperative. Data from USDA
indicate that little more than 1 percent of milk was produced under a
production contract in 1997. Use of production contracts in the dairy
sector is mostly limited to contracts between two animal feeding
operations to raise replacement heifers.
Despite the limited use of contracts between operations to raise
replacement herd, EPA expects that no businesses other than the CAFO
where the animals are raised will be subject to the proposed co-
permitting requirements. Reasons for this assumption are based on data
from USDA on the use of production contracts and on animal ownership at
operations in this sector. Additional information is provided in
Section 2 of the Economic Analysis. EPA is seeking comment on this
assumption as part of today's notice of the proposed rulemaking.
2. Farm Production and Waste Management Practices
Animals at dairy operations may be confined in free-stalls,
drylots, tie-stalls, or loose housing. Some may be allowed access to
exercise yards or open pasture. The holding area confines cows that are
ready for milking. Usually, this area is enclosed and is part of the
milking center, which in turn may be connected to the barn or located
in the immediate vicinity of the cow housing. Milking parlors are
separate facilities where the cows are milked and are typically cleaned
several times each day to remove manure and dirt. Large dairies tend to
have automatic flush systems, while smaller dairies simply hose down
the area. Larger dairies in the northern states, however, may be more
likely to use continuous mechanical scraping of alleys in barns. Cows
that are kept in tie-stalls may be milked directly from their stalls.
Waste associated with dairy production includes manure,
contaminated runoff, milking house waste, bedding, spilled feed and
cooling water. Dairies may either scrape or flush manure, depending on
the solids content in manure and wastewater. Scraping systems utilize
manual, mechanical, or tractor-mounted equipment to collect and
transport manure from the production area. Flushing systems use fresh
or recycled lagoon water to move manure. Dairy manure as excreted has a
solids content of about 12 percent and tends to act as a slurry;
however, it can be handled as a semisolid or a solid if bedding is
added. Semisolid manure has a solids content ranging from 10 to 16
percent. Dilution water may be added to the manure to create a slurry
with a solids content of 4 to 10 percent. If enough dilution water is
added to the manure to reduce the solids content below 4 percent, the
waste is considered to be a liquid.
Manure in a solid or semisolid state minimizes the volume of manure
that is handled. In a dry system, the manure is collected on a regular
basis and covered to prevent exposure to rain and runoff; sources of
liquid waste, such as milking center waste, are typically handled
separately. In a liquid or slurry system, the manure is typically mixed
with flushing system water from lagoons; the milking center effluent is
usually mixed in with the animal manure in the lagoon or in the manure
transfer system to ease pumping. Liquid systems are usually favored by
large dairies because they have lower labor cost and because the
dairies tend to use automatic flushing systems.
Methods used at dairy operations to collect waste include
mechanical/tractor scraper, flushing systems, gutter cleaner/gravity
gutters, and slotted floors. Manure is typically stored as a slurry or
liquid in a waste storage pond or in structural tanks. Milking house
waste and contaminated runoff must be stored as liquid in a waste
storage pond or structure. One common practice for the treatment of
waste at dairies includes solids separation. Another common practice
for the treatment of liquid waste at dairies includes anaerobic
lagoons. The transfer of dairy waste depends on its consistency: liquid
and slurry wastes can be transferred through open channels, pumps,
pipes, or in a portable tank; solid and semi-solid waste can be
transferred by mechanical conveyance, solid manure spreaders, or by
being pushed down curbed concrete alleys. The majority of
[[Page 2990]]
dairy operations dispose of their waste through land application. The
amount of crop and pastureland available for land application of manure
varies by operation.
Additional information on the types of farm production and waste
management practices is provided in the Development Document.
D. Hog Subcategory
1. General Industry Characteristics
Hog operations that raise or feed hogs and pigs either
independently or on a contract basis are identified under NAICS 11221,
hog and pig farming (SIC 0213, hogs).
Hog operations may be categorized by six facility types based on
the life stage of the animal in which they specialize:
Farrow-to-wean operations that breed pigs and ship 10- to
15-pound pigs to nursery operations.
Farrowing-nursery operations that breed pigs and ship 40-
to 60-pound ``feeder'' pigs to growing-finishing operations.
Nursery operations that manage weaned pigs (more than 10
to 15 pounds) and ship 40- to 60-pound ``feeder'' pigs to growing-
finishing operations.
Growing-finishing or feeder-to-finish operations that
handle 40- to 60-pound pigs and ``finish'' these to market weights of
about 255 pounds.
Farrow-to-finish operations that handle all stages of
production from breeding through finishing.
Wean-to-finish operations that handle all stages of
production, except breeding, from weaning (10- to 15-pound pigs)
through finishing.
Animal feeding operations in this sector that may be affected by
today's proposed regulations include facilities that confine animals.
Information on the types of facilities in this sector that may be
covered by the proposed regulations is provided in Section VII.
In 1997, USDA reports that there were 117,880 hog operations with
56.7 million market and breeding hogs (Table 6-1). Not all of these
operations would be subject to the proposed regulations. As shown in
Table 6-2, under the two-tier structure, EPA estimates that there are
5,860 farrow-finish feedlots (including breeder and nursery operations)
and 2,690 grower-finish feedlots with more than 1,250 head (i.e., 500
AU equivalent). Under the three-tier structure, EPA estimates that
5,700 farrow-finish feedlots (including breeder and nursery operations)
and 2,650 grower-finish feedlots with more than 750 head (i.e., 300 AU
equivalent) would meet the ``risk-based'' conditions described in
Section VII and thus require a permit.
Table 6-1 shows that the majority of hog operations (93 percent)
have fewer than 1,250 head, accounting for about one-third of overall
inventories. Nearly half the inventories are concentrated among the 3
percent of operations with more than 2,500 head. Under the two-tier
structure EPA expects that designation of hog operations with fewer
than 1,250 head will be limited to about 20 confinement operations
annually, or 200 operations over a 10-year time period. Under the
three-tier structure, EPA expects that about 5 hog operations with
fewer than 750 head would be designated annually, or 50 operations over
a 10-year time period. EPA expects that designated facilities will be
located in more traditional farming regions.
Hog production is concentrated among the top five producing states,
including Iowa, North Carolina, Minnesota, Illinois, and Missouri.
Together these states supply 60 percent of annual pork supplies. The
majority of operations are located in the Midwest; however, the
Southeast has seen rapid growth in hog production in the past decade.
Recent growth in this region is due to increased vertical integration,
proximity to growing consumer markets, and the mild climate, which
offers lower energy costs and improved feed efficiency. (Additional
data on these trends are provided in Section IV.C).
The hog sector is undergoing rapid consolidation and becoming
increasingly specialized. USDA reports that while the number of hog
operations dropped by nearly two-thirds between 1982 and 1997 (from
329,800 to 109,800 operations), the number of feeder pigs sold has
risen from 20.0 million to 35.0 million marketed head over the same
period. As in other livestock sectors, increasing production from fewer
operations is attributable to expansion at remaining operations. Data
from USDA indicate that the average number of hogs per facility
increased from 170 pigs in 1982 to 560 pigs in 1997. Increasing
production is also attributable to substantial gains in production
efficiency and more rapid turnover, which has allowed hog farmers to
produce as much output with fewer animals.
The hog sector is rapidly evolving from an industry of small,
independent firms linked by spot markets to an industry of larger firms
that are specialized and vertically coordinated through production
contracting. This is particularly true of large-scale hog production in
rapidly growing hog production states such as North Carolina.
Production contracting is less common in the Midwest where coordination
efforts are more diversified.
Information from USDA on animal ownership at U.S. farms provides an
indication of the potential degree of processor control in this sector.
Data from USDA indicate the use of production contracts accounted for
66 percent of hog production in the Southern and Mid-Atlantic states in
1997, especially among the larger producers. This indicates that a
large share of hog production may be under the ownership or control of
processing firms that are affiliated with hog operations in this
region. This compares to the Midwest, where production contracting
accounted for 18 percent of hog production. Production contracting in
the hog sector differs from that in the beef and dairy sectors since it
is becoming increasingly focused on the finishing stage of production,
with the farmer (``grower'') entering into an agreement with a meat
packing or processing firm (``integrator''). Production contracts are
also used between two independent animal feeding operations to raise
immature hogs.
Businesses that contract out the growing or finishing phase of
production to an AFO may also be affected by the proposed co-permitting
requirements. Affected businesses may include other animal feeding
operations as well as processing sector firms. By NAICS code, meat
packing plants are classified as NAICS 311611, animal slaughtering (SIC
2011, meat packing plants). The Department of Commerce reports that
there were a total of 1,393 red meat slaughtering facilities that
slaughter hogs as well as other animals, including cattle and calves,
sheep, and lamb. Of these, Department of Commerce's 1997 product class
specialization identifies 83 establishments that process fresh and
frozen pork and 11 establishments that process or cure pork. These data
generally account for larger processing facilities that have more than
20 employees. EPA believes that processing firms that may be affected
by the proposed co-permitting requirements will mostly be larger
facilities that have the administrative and production capacity to take
advantage of various contract mechanisms. This assumption is supported
by information from USDA that indicates that production contracts in
the hog sector are generally associated with the largest producers and
processors. Section 2 of the Economic Analysis provides additional
information on the basis for EPA's
[[Page 2991]]
estimate of potential co-permittees. EPA is seeking comment on this
assumption as part of today's notice of the proposed rulemaking.
Using these Department of Commerce data, EPA estimates that 94
companies engaged in pork processing may be subject to the proposed co-
permitting requirements. This estimate does not include other
processors under NAICS 311611, including sausage makers and facilities
that ``further process'' hog hides and other by-products because these
operations are considered to be further up the marketing chain and
likely do not contract out to CAFOs.
2. Farm Production and Waste Management Practices
Many operations continue to have the traditional full range of pork
production phases at one facility, known as farrow-to-finish
operations. More frequently at new facilities, operations are
specialized and linked into a chain of production and marketing. The
evolution in farm structures has resulted in three distinct production
systems to create pork products: (1) farrow-to-finish; (2) farrowing,
nursery, and grow-finish operations; and (3) farrow-to-wean and wean-
finish operations. Most nursery and farrowing operations, as well as
practically all large operations of any type, raise pigs in pens or
stalls in environmentally controlled confinement housing. These houses
commonly use slatted floors to separate manure and wastes from the
animal. Open buildings with or without outside access are relatively
uncommon at large operations, but can be used in all phases of pork
production. Smaller operations, particularly in the Midwest, may
utilize open lots or pasture to raise pigs.
Hog waste includes manure and contaminated runoff. Most confinement
hog operations use one of three waste handling systems: flush under
slats, pit recharge, or deep underhouse pits. Flush housing uses fresh
water or recycled lagoon water to remove manure from sloped floor
gutters or shallow pits. The flushed manure is stored in lagoons or
tanks along with any precipitation or runoff that may come into contact
with the manure. Flushing occurs several times a day. Pit recharge
systems are shallow pits under slatted floors with 6 to 8 inches of
pre-charge water. The liquid manure is pumped or gravity fed to a
lagoon approximately once a week. Deep pit systems start with several
inches of water, and the manure is stored under the house until it is
pumped out for field application on the order of twice a year. Most
large operations have 90 to 365 days storage. The deep pit system uses
less water, creating a slurry that has higher nutrient concentrations
than the liquid manure systems. Slurry systems are more common in the
Midwest and the cooler climates.
Dry manure handling systems include those used at open buildings
and lots, scraped lots, hoop houses, deep bedded systems, and high rise
hog houses. These systems produce a more solid manure material that is
readily handled with a tractor or front end loader. The solids are
stored in stacks or covered until used as fertilizer. In some cases,
solids are composted.
Storage lagoons are used to provide anaerobic bacterial
decomposition of organic materials. When only the top liquid is removed
for irrigation or some other use, a limited amount of phosphorus-rich
sludge accumulates in the lagoon, which requires periodic removal.
Vigorous lagoon mixing with an agitator or a chopper prior to
irrigation is sometimes done to minimize the sludge accumulation. In
certain climates, a settling and evaporation pond is used to remove
solids, which are dried in a separate storage area. Some lagoons and
tanks are covered with a synthetic material that reduces ammonia
volatilization. Covers also prevent rainfall from entering the system
and, therefore, reduce disposal costs.
Land application is the most common form of utilization. To
mitigate odor problems and volatization of ammonia, liquid waste can be
injected below the soil surface. Waste may also be distributed through
an irrigation process. Waste management systems for hogs often
incorporate odor control measures, where possible.
Additional information on the types of farm production and waste
management practices is provided in the Development Document.
E. Poultry Subcategory
1. General Industry Characteristics
Poultry operations can be classified into three individual sectors
based on the type of commodity in which they specialize. These sectors
include operations that breed and/or raise:
Broilers or young meat chickens that are raised to a live
weight of 4 to 4.5 pounds and other meat-type chickens, including
roasters that are raised to 8 to 9 pounds. Classification: NAICS 11232,
broilers and other meat-type chickens (SIC 0251, broiler, fryer and
roaster chickens).
Turkeys and turkey hens, including whole turkey hens that
range from 8 to 15 pounds at slaughter, depending on market, and also
turkey ``canners and cut-ups'' that range from 22 to 40 pounds.
Classification: NAICS 11233, turkey production (SIC 0253, turkey and
turkey eggs).
Hens that lay shell eggs, including eggs that are sold for
human consumption and eggs that are produced for hatching purposes.
Classification: NAICS 11231, Chicken egg production (SIC 0252, chicken
eggs) and NAICS 11234, poultry hatcheries (SIC 0254, poultry
hatcheries).
Animal feeding operations in this sector that may be affected by
today's proposed regulations include facilities that confine animals.
Information on the types of facilities in this sector that may be
covered by the proposed regulations is provided in Section VII.
In 1997, the USDA reports that there were 34,860 broiler operations
that raised a total of 1.9 billion broilers during the year. There were
also 13,720 turkey operations raising a total 112.8 million turkeys.
Operations with egg layers and pullets totaled 75,170 with an average
annual inventory of 393 million egg layers on-site. (See Table 6-1).
Not all of these operations would be subject to the proposed
regulations.
Under the two-tier structure, EPA estimates that there are 9,780
broiler operations, 1,280 turkey operations and 1,640 egg laying and
pullet operations that have more than 500 AU (i.e., operations with
more than 50,000 chickens and more than 27,500 turkeys). Under the
three-tier structure, EPA estimates that 13,740 broiler operations,
2,060 turkey operations and 2,010 egg laying operations with more than
300 AU (i.e., operations with more than 30,000 chickens and more than
16,500 turkeys) would meet the ``risk-based'' conditions described in
Section VII and thus require a permit.
EPA expects few, if any, poultry AFOs with fewer than 500 AU will
be subject to the revised requirements. As shown in Table 6-1, most
poultry operations have fewer than 500 AU. Under the two-tier
structure, EPA expects that designation of broiler operations with
fewer than 50,000 chickens will be limited to two broiler and two egg
operations being designated annually, or a total of 40 poultry
operations over a 10-year period. EPA expects that no turkey operations
would be designated as CAFOs and subject to the proposed regulations.
EPA expects that no confinement poultry operations will be designated
as CAFOs under the proposed requirements under the three-tier
structure.
Overall, most poultry production is concentrated in the Southeast
and in key Midwestern states. As in the pork sector, the Southeast
offers advantages
[[Page 2992]]
such as lower labor, land, and energy costs; proximity to end markets;
and milder weather, which contributes to greater feed efficiency.
Nearly 60 percent of all broiler production is concentrated among the
top five producing states, including Georgia, Arkansas, Alabama,
Mississippi, and North Carolina. The top five turkey producing states
also account for about 60 percent of all turkeys sold commercially.
These include North Carolina, Minnesota, Virginia, Arkansas, and
California. Missouri and Texas are also major broiler and turkey
producing states. The top five states for egg production account for
more than 40 percent of all egg production, including Ohio, California,
Pennsylvania, Indiana, and Iowa. Other major egg producing states
include Georgia, Texas, Arkansas, and North Carolina.
The number of operations in each of the poultry sectors has been
declining while production has continued to rise. USDA reports that
while the number of both turkey and broiler operations decreased by
about 10,000 operations between 1982 and 1997, the number of animals
sold for slaughter rose nearly twofold: the number of broilers sold
rose from 3.5 billion to 6.7 billion and the number of turkeys sold
rose from 167.5 million to 299.5 million. During the same period, the
number of egg operations dropped nearly two-thirds (from 215,800
operations in 1982), while the number of eggs produced annually has
increased from 5.8 billion dozen to 6.2 billion dozen. Increased
production from fewer operations is due to expanded production from the
remaining operations. This is attributable to increases in the average
number of animals raised at these operations as well as substantial
gains in production efficiency and more rapid turnover, which has
allowed operators to produce more with fewer animals. Data from USDA
indicate that average inventory size on poultry operations increased
twofold on broiler operations and rose threefold at layer and turkey
operations between 1982 and 1997. (Additional data on these trends are
provided in Section IV.C). As in other sectors, larger operations
control most animal inventories and sales.
The poultry industry is characterized by increasing integration and
coordination between the animal production facility and the processing
sector. Vertical integration has progressed to the point where large
multifunction producer-packer-processor-distributor firms are the
dominant force in poultry meat and egg production and marketing.
Coordination through production contracting now dominates the poultry
industry. Today's integrators are subsidiaries of feed companies,
independent processors, cooperatives, meat packers, or retailers, or
affiliates of conglomerate corporations. These firms may own and/or
direct the entire process from the production of hatching eggs to the
merchandising of ready-to-eat-sized poultry portions to restaurants.
Production contracting in the poultry sector differs from that in
the other livestock sectors since it is dominated by near vertical
integration between a farmer (``grower'') and a processing firm
(``integrator''). Information from USDA on animal ownership at U.S.
farms provides an indication of the potential degree of processor
control in this sector. Data from USDA indicate production contracting
accounted for virtually all (98 percent) of U.S. broiler production in
1997. This indicates that nearly all broiler production may be under
the ownership or control of processing firms that are affiliated with
broiler operations. Production contracting accounts for a relatively
smaller share of turkey and egg production, accounting for 70 percent
and 37 percent, respectively.
Businesses that contract out the growing or finishing phase of
production to an AFO may also be affected by the proposed co-permitting
requirements. Affected businesses may include other animal feeding
operations as well as processing sector firms. Poultry processing
facilities are classified under NAICS 311615, poultry processing, and
NAICS 311999, all other miscellaneous (SIC 2015, poultry slaughtering
facilities). The Department of Commerce reports that there were a total
of 558 poultry and egg slaughtering and processing facilities in 1997.
Of these, Department of Commerce's 1997 product class specialization
for poultry identifies 212 establishments that process young chickens,
15 that process hens or fowl, and 39 that process turkeys (rounded to
the nearest ten). These data generally account for larger processing
facilities that have more than 20 employees. EPA believes that
processing firms that may be affected by the proposed co-permitting
requirements will mostly be larger facilities that have the
administrative and production capacity to take advantage of various
contract mechanisms. Section 2 of the Economic Analysis provides
additional information on the basis for EPA's estimate of potential co-
permittees. EPA is seeking comment on this assumption as part of
today's notice of the proposed rulemaking.
Using these Department of Commerce data, EPA estimates that about
270 companies engaged in poultry slaughtering may be subject to the
proposed co-permitting requirements. This estimate does not include egg
processors under NAICS 311999 because these operations are considered
to be further up the marketing chain and likely do not contract out to
CAFOs.
2. Farm Production and Waste Management Practices
There are two types of basic poultry confinement facilities--those
that are used to raise turkeys and broilers for meat and those that are
used to house layers. Broilers and young turkeys are grown on floors on
beds of litter shavings, sawdust, or peanut hulls; layers are confined
to cages. Broilers are reared in houses where an absorbent bedding
material such as wood shavings or peanut hulls are placed on the floor
at a depth of several inches. Breeder houses contain additional rows of
slats for birds to roost. Broilers may also be provided supplementary
heat during the early phases of growth. Turkeys as well as some pullets
and layers are produced in a similar fashion. Pullets or chickens that
are not yet of egg laying age are raised in houses on litter, or in
cages. Most commercial layer facilities employ cages to house the
birds, although smaller laying facilities and facilities dedicated to
specialty eggs such as brown eggs or free range eggs may use pastures
or houses with bedded floors. Layer cages are suspended over a bottom
story in a high-rise house, or over a belt or scrape gutter. The gutter
may be a shallow sloped pit, in which case water is used to flush the
wastes to a lagoon. Flush systems are more likely to be found at
smaller facilities in the South.
Poultry waste includes manure, poultry mortalities, litter, spilt
water, waste feed, egg wash water, and also flush water at operations
with liquid manure systems. Manure from broiler, breeder, some pullet
operations, and turkey operations is allowed to accumulate on the floor
where it is mixed with the litter. In the chicken houses, litter close
to drinking water access forms a cake that is removed between flocks.
The rest of the litter pack generally has low moisture content and is
removed every 6 months to 2 years, or between flocks to prevent
disease. This whole house clean-out may also require storage, depending
on the time of year it occurs. The litter is stored in temporary field
stacks, in covered piles, or in stacks within a roofed facility to help
keep it dry. Commonly, treatment of broiler and
[[Page 2993]]
turkey litter includes composting which stabilizes the litter into a
relatively odorless material and which increases the market value of
the litter. Proper composting raises the temperature within the litter
such that pathogens are reduced, allowing reuse of the litter in the
poultry house.
The majority of egg laying operations also use dry manure handling.
Laying hens are kept in cages and the manure drops below the cages in
both dry and liquid manure handling systems. Most of the dry manure
laying operations are constructed as high rise houses where the birds
are kept on the second floor and the manure drops to the first floor
sometimes referred to as the pit. Ventilation flows through the house
from the roof down over the birds and into the pit over the manure
before it is forced out through the sides of the house. The ventilation
drys the manure as it piles up into cones. Manure can be stored in high
rise houses for up to a year before requiring removal. In dry layer
houses with belts, the manure that drops below the cage collects on
belts and is transported to a separate covered storage area. Layer
houses with liquid systems use either a shallow pit or alleyway located
beneath the cages for flushing. Flushed wastes are pumped to a lagoon.
Because of the large number of routine mortalities associated with
large poultry operations, the disposal of dead birds is occasionally a
resource concern. Poultry facilities must have adequate means for
disposal of dead birds in a sanitary manner. To prevent the spread of
disease, dead birds are usually collected daily. Disposal alternatives
include incineration, rendering, composting, and in-ground burial or
burial in disposal tanks. Much of the waste from poultry facilities is
land applied.
Additional information on the types of farm production and waste
management practices is provided in the Development Document.
VII. What Changes to the NPDES CAFO Regulations Are Being Proposed?
A. Summary of Proposed NPDES Regulations
EPA is co-proposing, for public comment, two alternative ways to
structure the NPDES regulation for defining which AFOs are CAFOs. Both
structures represent significant improvements to the existing
regulation and offer increased environmental protection. The first
alternative proposal is a ``two-tier structure,'' and the second is a
``three-tier structure.'' Owners or operators of all facilities that
are defined as CAFOs in today's proposal, under either alternative,
would be required to apply for an NPDES permit.
In the first co-proposed alternative, EPA is proposing to replace
the current three-tier structure in 40 CFR 122.23 with a two-tier
structure. See proposed Sec. 122.23(a)(3) for the two-tier structure,
included at the end of this preamble. All AFOs with 500 or more animal
units would be defined as CAFOs, and those with fewer than 500 animal
units would be CAFOs only if they are designated as such by EPA or the
State NPDES permit authority.
In the second co-proposed alternative, EPA is proposing to retain
the current three-tier structure. All AFOs with 1,000 or more animal
units would be defined as CAFOs, and those with less than 300 animals
units would be CAFOs only if they are designated by EPA or the State
NPDES permit authority. Those with 300 to 1,000 animal units would be
CAFOs if they meet one or more of several specific conditions, and
today's proposal would revise the existing conditions. These facilities
could also be designated as CAFOs if they are found to be significant
contributors of pollutants to waters of the United States. Further, all
AFOs between 300 and 1,000 animal units would be required to certify to
the permit authority that they do not meet any of the conditions. Those
facilities unable to certify would be required to apply for a permit.
These regulatory alternatives are two of six different approaches
that the Agency considered. Two of the approaches are also being
seriously considered, but are not being proposed in today's action
because they have not been fully analyzed. However, EPA is soliciting
public comment on these two alternatives. One of the alternatives is a
two-tier structure, similar to what is being proposed today, but would
establish a threshold at the equivalent of 750 AU. The other
alternative under consideration is a three-tier structure, with
different certification and permitting requirements for facilities in
the 300 AU to 1,000 AU tier. These alternatives are described in more
detail in Section VII.B.5. After reviewing public comment, EPA may
decide to pursue either of these alternatives.
In addition, EPA considered two other alternative approaches that
are not being proposed. One would retain the existing three-tier
structure for determining which AFOs are CAFOs, and would retain the
existing conditions for determining which of the middle tier facilities
are CAFOs while incorporating all other proposed changes to the CAFO
regulations (e.g., the definition of CAFO, the duty to apply, etc.).
The sixth approach that was not proposed which is similar to today's
second alternative proposal, would retain the three-tiered structure
and would revise the conditions for determining which of the middle
tier facilities are CAFOs in the same manner as today's proposal. In
contrast with today's proposal, it would not require all AFOs in the
middle tier to certify they are not CAFOs.
EPA is soliciting comment on all six scenarios for structuring how
to determine which facilities are CAFOs.
Table 7-1.--Proposed Revision to the Structure of the CAFO Regulation
------------------------------------------------------------------------
Proposed revision Section
------------------------------------------------------------------------
Historical Record................................. B.1
Two-Tier Structure................................ B.2
Three-Tier Structure.............................. B.3
Comparative Analysis.............................. B.4
Alternative Scenarios Considered but not Proposed. B.5
------------------------------------------------------------------------
Besides changing the structure of the regulation, under both of
today's proposals, EPA is also proposing changes to clarify, simplify,
and strengthen the NPDES regulation, including to: clarify the
definition of an AFO; discontinue the use of the term ``animal unit''
and eliminate the mixed animal type multiplier when calculating numbers
of animals; eliminate the 25-year, 24-hour storm permit exemption; and
impose a clearer and more broad duty to apply for a permit on all
operations defined or designated as a CAFO.
EPA is also proposing several changes that determine whether a
facility is an AFO or whether it is a CAFO and
[[Page 2994]]
therefore must apply for an NPDES permit on that basis. Specifically,
EPA is proposing to formally define a CAFO to: include both the animal
production area and the land application area; broaden coverage in the
poultry sector to include all chicken operations, both wet and dry; add
coverage for stand-alone immature swine and heifer operations; lower
the NPDES threshold that defines which facilities are CAFOs for other
animal sectors, including horses, sheep, lambs and ducks; and require
facilities that are no longer active CAFOs to remain permitted until
their manure and storage facilities are properly closed and they have
no potential to discharge CAFO manure or wastewater. This section also
discusses the concept of ``direct hydrologic connection'' between
ground water and surface water and its application to CAFOs.
Considerations for providing regulatory relief to small businesses are
also discussed.
EPA is also proposing changes that clarify the scope of NPDES
regulation of CAFO manure and process wastewater. Today's proposal
modifies the criteria for designation of AFOs as CAFOs on a case-by-
case basis and explicitly describes EPA's authority to designate
facilities as CAFOs in States with approved NPDES programs. EPA is also
proposing that the permit authority must require entities that have
``substantial operational control'' over a CAFO to be co-permitted, and
is requesting comment on an option for States to waive this requirement
if they provide another means of ensuring that excess manure
transported from CAFOs to off-site recipients is properly land applied.
EPA also is clarifying Clean Water Act requirements concerning point
source discharges at non-CAFOs.
These changes are summarized in Table 7-2 and described in the
noted sections.
Table 7-2.--Proposed Revisions for Defining CAFOs Other Point Sources
------------------------------------------------------------------------
Proposed revision Section
------------------------------------------------------------------------
Clarify the vegetation language in the definition C.1
of an AFO.
Discontinue use of the term animal unit........... C.2.a
Eliminate the mixed animal type multiplier........ C.2.b
Remove the 25-year, 24-hour storm event exemption C.2.c
from the definition of a CAFO.
Clarify the duty to apply, that all CAFOs must C.2.d
apply for an NPDES permit.
Definition of a CAFO includes both production area C.2.e
and land application area.
Include dry poultry operations.................... C.2.f
Include stand-alone immature swine and heifer C.2.g
operations.
Coverage of other sectors besides beef, dairy, C.2.h
swine and poultry.
Require facilities that are no longer CAFOs to C.2.i
remain permitted until proper closure.
Applicability of direct hydrological connection to C.2.j
surface water.
Regulatory relief for small businesses............ C.2.k
Designation criteria.............................. C.3
Designation of CAFOs by EPA in States with NPDES C.4
authorized programs.
Co-permitting of entities that exert substantial C.5
operational control over a CAFO.
Point source discharges at AFOs that are not CAFOs C.6
------------------------------------------------------------------------
We also extensively discuss matters associated with the land
application of CAFO-generated manure and wastewater, including how the
agricultural storm water exemption applies to the application of CAFO-
generated manure both on land under the control of the CAFO operator
and off-site. EPA is proposing to require CAFO owners or operators to
land apply manure in accordance with proper agricultural practices, as
defined in today's regulation. EPA is also co-proposing two different
means of addressing the off-site transfer of CAFO-generated manure. In
one proposal, CAFO owners or operators would be allowed to transfer
manure off-site only to recipients who certify to land apply according
to proper agricultural practices; to maintain records of all off-site
transfers; and to provide adequate information to off-site manure
recipients to facilitate proper application. Alternately, the
certification would not be required, and CAFOs owners or operators
would simply be required to maintain records and provide the required
information to recipients. See Table 7-3 for references.
Table 7-3.--Land Application of CAFO-Generated Manure and Wastewater
------------------------------------------------------------------------
Proposed revision Section
------------------------------------------------------------------------
Why is EPA Regulating Land Application of CAFO D.1
Waste?.
How is EPA Interpreting the Agricultural Storm D.2
Water Exemption with Respect to Land Application
of CAFO-generated Manure?.
How is EPA Proposing to Regulate Discharges from D.3
Land Application of CAFO-generated Manure by
CAFOs?.
How is EPA Proposing to Regulate Land Application D.3
of Manure and Wastewater by non-CAFOs?.
------------------------------------------------------------------------
EPA is proposing several revisions to requirements contained in
CAFO permits. The requirement that CAFO owners or operators develop and
implement a ``Permit Nutrient Plan,'' or ``PNP,'' is discussed
extensively, including clarifying that a PNP is the EPA-enforceable
subset of a Comprehensive Nutrient Management Plan, or ``CNMP.''
EPA is also proposing to apply revised Effluent Limitation
Guidelines and standards (and hereafter referred to as effluent
guidelines or ELG) to beef, dairy, swine, poultry and veal operations
that are CAFOs by definition in either of the two proposed structures,
or that have 300 AU to 1,000 AU in the three-tier structure and are
designated. NPDES permits issued to small operations that are CAFOs by
designation (those with fewer than 500 AU in the two tier structure,
and those with fewer than 300 AU in the three tier structure) would
continue to be based on Best Professional Judgment (BPJ) of
[[Page 2995]]
the permit authority. Similarly, CAFOs in other sectors (i.e., horse,
sheep, lambs, and ducks) that have greater than 1,000 AU will continue
to be subject to the existing effluent guidelines and standards (as
they are in the existing regulation), while those with 1,000 AU or
fewer would be issued permits based on BPJ, as today's proposed
effluent guidelines does not include revisions to sectors other than
beef, dairy, swine, poultry and veal.
Today's NPDES proposal includes monitoring, reporting and record
keeping requirements that are consistent with those required by today's
proposed effluent guidelines (discussed in section VIII). In addition,
EPA is proposing to require all individual permit applicants, as well
as new facilities applying for coverage under general NPDES permits, to
submit a copy of the cover sheed and Executive Summary of their draft
Permit Nutrient Plan (PNP) to the permit authority along with the
permit application or Notice of Intent (NOI). EPA is proposing to
require all CAFOs to submit a notification to the permit authority,
within three months of obtaining permit coverage, that their Permit
Nutrient Plans (PNPs) have been developed, along with a fact sheet
summarizing the PNP. Further, EPA is proposing to require permittees to
submit a notification to the permit authority whenever the PNP has been
modified.
EPA is also proposing to require that the permit authority include
certain conditions in its general and individual permits that specify:
(1) Requirements for land application of manure and wastewater,
including methods for developing the allowable manure application rate;
(2) restrictions on timing of land application if determined to be
necessary, including restrictions with regard to frozen, saturated or
snow covered ground; (3) requirements for the facility to be permitted
until manure storage facilities are properly closed and therefore the
facility has no potential to discharge; (4) conditions for facilities
in certain types of topographical regions to prevent discharges to
ground water with a direct hydrological connection to surface water;
and (5) under one co-proposed option, requirements that the CAFO owner
or operator obtain a signed certification from off-site recipients of
more than twelve tons annually, that manure will be land applied
according to proper agricultural practices (co-proposed with omitting
such a requirement). Comments are also requested on whether EPA should
include erosion controls in the NPDES permit, and whether EPA should
establish an additional design standard that would address chronic
rainfall. Table 7-4 summarizes the proposed revisions that address
minimum permit conditions, as well as issues for which comment are
being sought.
Table 7-4.--Proposed Revisions for Permit Requirements
------------------------------------------------------------------------
Proposed revision Section
------------------------------------------------------------------------
Permit Nutrient Plan.............................. E.1
Effluent Limitations.............................. E.2
Monitoring and reporting.......................... E.3
Record keeping.................................... E.4
Special Conditions and Standard Conditions........ E.5
Determining allowable manure application rate. E.5.a
Timing of land application of manure.......... E.5.b
Maintaining permit until proper closure....... E.5.c
Discharge to ground water with a direct E.5.d
hydrological connection to surface water.
Obtain certification from off-site recipients E.5.e
of manure of appropriate land application.
Erosion control............................... E.5.f
Solicitation of comment on defining chronic E.5.g
rainfall.
------------------------------------------------------------------------
Finally, EPA is proposing to amend certain aspects of the general
and individual permit process to improve public access and public
involvement in permitting CAFOs. While the NPDES regulations already
provide a process for public involvement in issuing individual NPDES
permits, today EPA is proposing to require the permit authority to
issue quarterly public notices of all Notices of Intent (NOIs) received
for coverage under general NPDES permits for CAFOs, as well as of
notices from CAFOs that their Permit Nutrient Plans have been developed
or amended. Today's proposal discusses public availability of NOIs,
Permit Nutrient Plans and PNP notifications. EPA is proposing several
new criteria for which CAFOs may be ineligible for general permits, and
would require the permit authority to conduct a public process for
determining, in light of those criteria, when individual permits would
be required.
Owners or operators of all facilities that are defined as CAFOs in
today's proposed regulation would be required to apply for an NPDES
permit. However, EPA also is proposing that they may, instead, seek to
obtain from the permit authority a determination of ``no potential to
discharge'' in lieu of submitting a permit application. (EPA notes
that, because of the stringency of demonstrating that a facility has no
potential to discharge, EPA expects that few facilities will receive
such determinations.) Finally, EPA is proposing to amend the CAFO
individual permit application requirements and corresponding Form 2B.
See Table 7-5.
Table 7-5.--Proposed Revisions to Permit Process
------------------------------------------------------------------------
Proposed revision Section
------------------------------------------------------------------------
General Permit and NOI provisions................. F.1
Individual permits................................ F.2
Requests not to have a permit issued by F.3
demonstrating ``no potential to discharge''.
Amendments to NPDES Permit Application For CAFOs F.4
Form 2B.
------------------------------------------------------------------------
[[Page 2996]]
B. What Size AFOs Would be Considered CAFOs?
EPA is proposing two alternative structures for establishing which
AFOs would be regulated as CAFOs. Each proposal reflects the Agency's
efforts to balance the goals of ease of implementation and effectively
addressing the sources of water quality impairments. The two-tier
structure is designed to give both regulators and animal feeding
facility operators a clear, straightforward means of determining
whether or not an NPDES permit is required for a facility. On the other
hand, the three-tier structure, while less straightforward in
determining which facilities are required to have NPDES permits, may
allow the permit authority to focus its permitting resources on
facilities which are more likely to be significant sources of water
quality impairments. The Agency believes both the two-tier and three-
tier approaches are reasonable and is requesting comment on how best to
strike a balance between simplicity and flexibility while achieving the
goals of the Clean Water Act. EPA may decide to choose either or both
alternatives in the final rule, and requests comments on both. EPA is
also requesting comment on a variation of the two-tier structure and a
variation of the three-tier structure and, after considering public
comment, may decide to pursue either or both of these variations for
the final rule.
EPA is not proposing to define animal types on the basis of age,
size or species in order to avoid complicating the implementation of
this proposal. Throughout today's preamble, each of the subcategories,
under today's proposed effluent guidelines, is described as follows:
``Cattle, excluding mature dairy or veal'' (referred in
today's preamble as the beef sector) includes any age animal confined
at a beef operation, including heifers when confined apart from the
dairy. This subcategory also includes stand-alone heifer operations,
also referred to as heifer operations.
``Mature dairy cattle'' (referred in today's preamble as
the dairy sector) indicates that only the mature cows, whether milking
or dry, are counted to identify whether the dairy is a CAFO.
``Veal'' is distinguished by the type of operation. Veal
cattle are confined and manure is managed differently than beef cattle.
EPA is not proposing to define veal by size or age. Note that the
current regulation includes veal under the beef subcategory, but in
today's proposal a new veal subcategory would be established.
``Swine weighing over 25 kilograms or 55 pounds'' also
indicates that only mature swine are counted to determine whether the
facility is a CAFO. Once defined as a CAFO, all animals in confinement
at the facility would be subject to the proposed requirements.
``Immature Swine weighing less than 25 kilograms or 25
pounds'' indicates that immature swine are counted only when confined
at a stand-alone nursery. Today's preamble uses the terms ``swine
sector'' to indicate both mature and immature swine, but permit
provisions are separately applied to them.
``Chicken'' and ``Turkeys'' are listed as separate
subcategories and are counted separately in order to determine whether
the facility is a CAFO. However, they are subject to the same effluent
limitations, and are collectively referred to as the ``poultry
sector.''
``Ducks,'' ``Horses,'' and ``Sheep or Lambs'' are separate
subcategories under the existing NPDES and effluent limitation
regulations. Part 412 effluent limitations are not being revised in
today's proposal; however, some of the proposed revisions to the NPDES
program will affect these subcategories.
1. Historical Record
In 1973, when EPA proposed regulations for CAFOs, the Agency
determined the thresholds above which AFOs would be subject to NPDES
permitting requirements ``on the basis of information and statistics
received, pollution potential, and administrative manageability.'' 38
FR 10961, 10961 (May 3, 1973). In 1975, the Agency, after litigation,
again proposed regulations for CAFOs which established a threshold
number of animals above which an AFO would be determined to be a CAFO.
40 FR 54182 (Nov. 20, 1975). The Agency noted that it might be possible
to establish a precise regulatory formula to determine which AFOs are
CAFO point sources based on factors such as the proximity of the
operation to surface waters, the numbers and types of animals confined,
the slope of the land, and other factors relative to the likelihood or
frequency of discharge of pollutants into navigable waters. 40 FR at
54183.
The Agency decided, however, that even if such a formula could be
constructed, it would be so complex that both permitting authorities
and feedlot operators would find it difficult to apply. Then, as now,
EPA concluded that the clearest and most efficient means of regulating
concentrated animal feeding operations was to establish a definitive
threshold number of confined animals above which a facility is defined
as a CAFO, below which a permitting authority could designate a
facility as a CAFO, after consideration of the various relevant
factors. The threshold numbers initially established by the Agency were
based generally on a statement by Senator Muskie when the Clean Water
Act was enacted. Senator Muskie, floor manager of the legislation,
stated that: ``Guidance with respect to the identification of `point
sources' and `nonpoint sources,' especially with respect to
agriculture, will be provided in regulations and guidelines of the
Administrator.'' 2 Legislative History of the Water Pollution Control
Act Amendments of 1972 at 1299, 93d Cong, 1st Sess. (January 1973).
Senator Muskie then identified the existing policy with respect to
identification of agricultural point sources was generally that
``runoff from confined livestock and poultry operations are not
considered a `point source' unless the following concentrations of
animals are exceeded: 1000 beef cattle; 700 dairy cows; 290,000 broiler
chickens; 180,000 laying hens; 55,000 turkeys; 4,500 slaughter hogs;
35,000 feeder pigs; 12,000 sheep or lambs; 145,000 ducks.'' Id. In the
final rule, the Agency and commenters agreed that while Senator
Muskie's statement provided useful general guidance, particularly in
support of the idea of defining CAFOs based on specified numbers of
animals present, it was not a definitive statement of the criteria for
defining a CAFO. 41 FR 11458 (Mar. 18, 1976). The Agency, thus, looked
to data with respect to both the amount of manure generated by
facilities above the threshold and the number of facilities captured by
the regulation.
EPA has again looked to those factors and, with 25 years of
regulatory experience, focused particularly on the amount of manure
captured by the threshold, ease of implementation for both regulators
and the regulated community, as well as on matters of administrative
convenience and manageability of the permitting program. Based on these
considerations, EPA is proposing two alternative structures. EPA notes
that the NPDES threshold is generally synchronized with the effluent
guidelines applicability threshold, and information on the cost per
pound of pollutants removed, and affordability of the various options
is available in Section X.
2. Two-Tier Structure
The first alternative that EPA is proposing is a two-tier structure
that establishes which operations are
[[Page 2997]]
defined as CAFOs based on size alone. See proposed Sec. 122.23(a)(3).
In this alternative, EPA is proposing that the threshold for defining
operations as CAFOs be equivalent to 500 animal units (AU). All
operations with 500 or more animal units would be defined as CAFOs
(Sec. 122.23(a)(3)(i)). Operations with fewer than 500 animal units
would be CAFOs only if designated by EPA or the State permit authority
(Sec. 122.23(a)(3)(ii)). Table 7-6 describes the number of animals that
are equivalent to the proposed 500 AU threshold, as well as three other
two-tier thresholds that are discussed in this section.
The proposed two-tier structure would eliminate the 300 AU to 1,000
AU tier of the existing regulation, under which facilities were either
defined as a CAFO if they met certain conditions or were subject to
designation on a case-by-case basis by the permit authority according
to the criteria in the regulations. EPA is proposing to eliminate this
middle category primarily because it has resulted in general confusion
about which facilities should be covered by an NPDES permit, which, in
turn, has led to few facilities being permitted under the existing
regulation. The two-tier structure offers simplicity and clarity for
the regulated community and enforcement authorities for knowing when a
facility is a CAFO and when it is not, thereby improving both
compliance and enforcement.
Table 7-6.--Number of Animals Covered by Alternative Two-Tier Approaches
------------------------------------------------------------------------
Number of animals equivalent to:
Animal type -------------------------------------------
300 AU 500 AU 750 AU 1,000 AU
------------------------------------------------------------------------
Cattle and Heifers.......... 300 500 750 1,000
Veal........................ 300 500 750 1,000
Mature Dairy Cattle......... 200 350 525 700
Swine weighing over 25 750 1,250 1,875 2,500
kilograms--or 55 pounds....
Immature Swine weighing less 3,000 5,000 7,500 10,000
than 25 kilograms, or 55
pounds.....................
Chickens.................... 30,000 50,000 75,000 100,000
Turkeys..................... 16,500 27,500 41,250 55,000
Ducks....................... 1,500 2,500 3,750 5,000
Horses...................... 150 250 375 500
Sheep or Lambs.............. 3,000 5,000 7,500 10,000
------------------------------------------------------------------------
Operations with fewer animals than the number listed for the
selected threshold in Table 7-6 would only become CAFOs through case-
by-case designation.
In order to determine the appropriate threshold for this two-tier
approach, EPA analyzed information on numbers of operations, including
percent of manure generated, potential to reduce nutrient loadings, and
administrative burden. EPA considered current industry trends and
production practices, including the trend toward fewer numbers of AFOs,
and toward larger facilities that tend to be more specialized and
industrialized in practice, as compared to more traditional
agricultural operations. EPA also considered other thresholds,
including 300 AU, 750 AU, or retaining the existing 1,000 AU threshold.
After considering each of these alternatives, EPA is proposing 500 AU
as the appropriate threshold for a two-tier structure, but is also
requesting comment on a threshold of 750 AU.
EPA is proposing 500 AU as the appropriate threshold for a two-tier
structure because it regulates larger operations and exempts more
traditional--and oftentimes more sustainable--farm production systems
where farm operators grow both livestock and crops and land apply
manure nutrients. Consistent with the objectives under the USDA-EPA
Unified National Strategy for Animal Feeding Operations (March 9,
1999), the proposed regulations cover more of the largest operations
since these pose the greatest potential risk to water quality and
public health, given the sheer volume of manure generated at these
operations. Larger operations that handle larger herds or flocks often
do not have an adequate land base for manure disposal through land
application. As a result, large facilities need to store large volumes
of manure and wastewater, which have the potential, if not properly
handled, to cause significant water quality impacts. By comparison,
smaller farms manage fewer animals and tend to concentrate less manure
nutrients at a single farming location. Smaller farms tend to be less
specialized and are more diversified, engaging in both animal and crop
production. These farms often have sufficient cropland and fertilizer
needs to appropriately land apply manure nutrients generated at a
farm's livestock or poultry business. More information on the
characteristics of larger-scale animal production practices is provided
in sections IV and VI of this document, as well as noted in the
analysis of impacts to small businesses (section X.I).
EPA is proposing the 500 AU threshold because operations of this
size account for the majority of all manure and manure nutrients
produced annually. The proposed two-tier structure would cover an
estimated 25,540 animal production operations, or approximately seven
percent of all operations, which account for 64 percent of all AFO
manure generated annually. The USDA-EPA Unified National Strategy had a
goal of regulating roughly five percent of all operations.
EPA is specifically seeking comment on an alternative threshold of
750 AU, which would encompass five percent of AFOs. There are an
estimated 19,100 operations with 750 AU or more (13,000 of which have
more than 1,000 AU), and account for 58 percent of all manure and
manure nutrients produced annually by AFOs. Regulating five percent of
AFOs may be viewed by some as being consistent with the USDA-EPA
Unified National Strategy.
A 750 AU threshold has the benefits cited for the 500 AU threshold.
The two-tier structure is simple and clear, and it would focus
regulation on even larger operations, thereby relieving smaller
operations from the burden of being automatically regulated, and
moderating the administrative burden to permit authorities. Permit
authorities could use state programs to focus on operations below 750
AU, and could use the designation process as needed.
In some sectors, a 750 AU threshold may not be sufficiently
protective of the environment. For example, in the Pacific Northwest,
dairies tend to be smaller, but also tend to be a significant concern.
In the mid-Atlantic, where
[[Page 2998]]
poultry operations have been shown to be a source of environmental
degradation, a 750 AU threshold would exempt many broiler operations
from regulatory requirements. EPA is concerned that a 750 AU threshold
would disable permit authorities from effectively addressing regional
concerns.
EPA also considered adopting the 1,000 AU threshold, which would
have regulated three percent of all operations and 49 percent of all
manure generated annually. A threshold of 300 AU was also considered,
which would have addressed an additional 8 percent of all manure
generated annually, but would have brought into regulation 50 percent
more operations than the 500 AU threshold (thus regulating a total of
10 percent of all AFOs which account for 72 percent of AFO manure).
Raising the NPDES threshold to 500 AU, 750 AU or 1,000 AU raises a
policy question for facilities below the selected threshold but with
more than 300 AU. Facilities with 300 to 1,000 AU are currently subject
to NPDES regulation under some conditions, though in practice few
operations in this size range have actually been permitted to date. To
rely entirely on designation for these operations could be viewed by
some as deregulatory, because the designation process is a time
consuming and resource intensive process that makes it difficult to
redress violations. It also results in the inability for permit
authorities to take enforcement actions against initial discharges,
(unless they are from an independent point source at the facility);
instead such discharges could only result in requiring a permit. Unless
the designation process can be streamlined in some way to enable permit
authorities to more efficiently address those who are significant
contributors of pollutants, raising the threshold too high may also not
be sufficiently protective of the environment. Please see Section
VII.C.3 and VII.C.4 for a discussion of the designation process.
More information on how data for these alternatives were estimated
is provided in section VI of this preamble.
EPA is soliciting comment on the two-tier structure, and what the
appropriate threshold should be. In addition, EPA is soliciting comment
on other measures this rule, when final, might include to ensure that
facilities below the regulatory threshold meet environmental
requirements, such as by streamlining the designation process or some
other means.
3. Three-Tier Structure
The second alternative that EPA is proposing is a three-tier
structure that retains the existing tiers but amends the conditions
under which AFOs with 300 AU to 1,000 AU, or ``middle tier''
facilities, would be defined as CAFOs. Further, EPA would require all
middle tier AFOs to either apply for an NPDES permit or to certify to
the permit authority that they do not meet any of the conditions which
would require them to obtain a permit.
EPA is proposing this alternative because it presents a ``risk
based'' approach to determining which operations pose the greatest
concern and have the greatest potential to discharge. The particular
conditions being proposed would have the effect of ensuring that manure
at all facilities with 300 AU or more is properly managed, and thus may
be more environmentally protective than the two-tier structure.
Further, even though this alternative would impose some degree of
burden on all AFOs with 300 AU or more, it would provide a way for
facilities to avoid being permitted, and could reduce the
administrative burden associated with permitting.
The three-tier alternative would affect all 26,665 facilities
between 300 AU and 1,000 AU in addition to the 12,660 facilities with
greater than 1,000 AU, and thus would affect 10 percent of all AFOs
while addressing 72 percent of all AFO manure. However, because owners
or operators of middle tier facilities would be able to certify that
their operations are not CAFOs, EPA estimates that between 4,000 to
19,000 mid-size facilities would need to apply for and obtain a permit.
Of the approximately 26,000 AFOs with 300 AU to 1,000 AU, EPA
estimates that owners or operations of approximately 7,000 facilities
would have to, at a minimum, implement a Permit Nutrient Plan (as
discussed further below) and would be able to certify to the permit
authority that they are not a CAFO based on existing practices.
Operators of some 19,000 facilities of these middle tier facilities
would be required to adopt certain practices in addition to
implementing a PNP, in order to be able to certify they are not a CAFO
to avoid being permitted.
See the EPA NPDES CAFO Rulemaking Support Document, included in the
Record, for detailed descriptions of the number of facilities affected
by this and the other alternative scenarios considered.
EPA is also proposing the three-tier structure because it provides
flexibility for State programs. A State with an effective non-NPDES
program could succeed in helping many of their middle tier operations
avoid permits by ensuring they do not meet any of the conditions that
would define them as CAFOs. This important factor would enable States
to tailor their programs while minimizing the changes State programs
might need to make to accommodate today's proposed rulemaking.
The three-tier structure would affect the facilities shown in Table
7-7.
Table 7-7.--Number of Animals in the Three-tier Approach
[By sector]
----------------------------------------------------------------------------------------------------------------
>1000 AU 300-1000AU 300 AU
equivalent equivalent equivalent
Animal Type (Number of (Number of (Number of
animals) animals) animals)
----------------------------------------------------------------------------------------------------------------
Cattle, Excluding Mature Dairy and Veal................ 1,000 300-1,000 300
Veal................................................... 1,000 300-1,000 300
Mature Dairy Cattle.................................... 700 200-700 200
Swine, weighing over 25 kilograms or 55 pounds......... 2,500 750-2,500 750
*Immature Swine, weighing less than 25 kilograms or 55 10,000 3,000-10,000 3,000
pounds................................................
*Chickens.............................................. 100,000 30,000-100,000 30,000
Turkeys................................................ 55,000 16,500-55,000 16,500
Ducks.................................................. 5,000 1,500-5,000 1,500
Horses................................................. 500 150-500 150
[[Page 2999]]
Sheep or Lambs......................................... 10,000 3,000-10,000 3,000
----------------------------------------------------------------------------------------------------------------
*Immature swine, heifers and dry chicken operations are not included in the existing regulation but are included
in today's proposed rulemaking.
Revised Conditions. EPA examined the conditions under the existing
regulation and determined that the conditions needed to be modified in
order to improve its efficacy. Under the existing regulation, an AFO
with 300 AU to 1,000 AU is not defined as a CAFO unless it meets one of
the two criteria governing the method of discharge: (1) Pollutants are
discharged through a man-made ditch, flushing system, or other similar
man-made device; or (2) pollutants are discharged directly into waters
of the United States that originate outside of the facility and pass
over, across, or through the facility or otherwise come into direct
contact with the confined animals. Under the two-tier structure, these
conditions would be eliminated because a facility would simply be
defined as a CAFO if it had more than 500 AU. Under the three-tier
structure, EPA is proposing to eliminate the existing conditions and
add several others designed to identify facilities which pose the
greatest risk to water quality.
The three-tier proposal would, for the middle tier, eliminate both
criteria in the existing regulation because these conditions have
proven to be difficult to interpret and implement for AFOs in the 300
AU to 1,000 AU size category, and thus have not facilitated compliance
or enforcement, and the scenario does not meet the goal of today's
proposal to simplify the NPDES regulation for CAFOs. The two criteria
governing method of discharge, e.g., ``man-made device'' and ``stream
running through the CAFO,'' are subject to interpretation, and thus
difficult for AFO operators in this size range to determine whether or
not the permit authority would consider them to be a CAFO. EPA does not
believe it is necessary to retain these criteria because all discharges
of pollutants from facilities of this size should be considered point
source discharges. By replacing these terms with a list of conditions,
EPA intends to clarify that all discharges from CAFOs must be covered
by an NPDES permit, whether or not they are from a manmade conveyance.
EPA notes that under this proposal, the Agency would not eliminate the
two conditions as criteria for designation of AFOs with less than 300
AU as CAFOs. See the discussion of designation in Section VII.C.3.
The revised conditions for the middle tier would require the owner
or operator to apply for an NPDES permit if the operation meets any of
the following conditions and is therefore a CAFO: (1) There is direct
contact of animals with waters of the U.S. at the facility; (2) there
is insufficient storage and containment at the production area to
prevent discharges from reaching waters of the U.S.; (3) there is
evidence of a discharge from the production area in the last five
years; (4) the production area is located within 100 feet of waters of
the U.S.; (5) the operator does not have, or is not implementing, a
Permit Nutrient Plan that meets EPA's minimum requirements; or (6) more
than twelve tons of manure is transported off-site to a single
recipient annually, unless the recipient has complied with the
requirements for off-site shipment of manure.
The EPA NPDES CAFO Rulemaking Support Document, dated September 26,
2000 (available in the rulemaking Record), describes the assumptions
used to estimate the number of facilities that would be affected by
each condition, which EPA developed in consultation with state
regulatory agency personnel, representatives of livestock trade
associations, and extension specialists.
Each of these proposed conditions is described further below.
Direct contact of animals with waters of the U.S. The condition for
``direct contact of animals with waters of the U.S.'' covers situations
such as dairy or beef cattle walking or standing in a stream or other
such water that runs through the production area. This condition
ensures that facilities which allow such direct contact have NPDES
permits to minimize the water quality problems that such contact can
cause.
Insufficient Storage. The condition for ``insufficient storage and
containment at the production area to prevent discharge to waters of
the U.S.'' is intended to address discharges through any means,
including sheet runoff from the production area, whereby rain or other
waters might come into contact with manure and other raw materials or
wastes and then run off to waters of the U.S. or leach to ground water
that has a direct hydrologic connection to waters of the U.S. This is
to ensure that all mid-sized facilities prevent discharges from
inadequate storage and containment of manure, process wastewater, storm
water, and other water coming in contact with manure.
Sufficient storage would be defined as facilities that have been
designed and constructed to standards equivalent to today's proposed
effluent guidelines. Thus, beef and dairy operations would be designed
and constructed to prevent discharge in a 25-year, 24-hour storm event,
while swine and poultry would be required to meet a zero discharge
standard. See Section VIIIC.6.
Past or Current Discharge. Operations that meet the condition for
``evidence of discharge from the production areas within the past five
years'' would be considered CAFOs under this proposal. A discharge
would include all discharges from the production area including, for
example, a discharge from a facility designed to contain a 25-year, 24-
hour storm. Evidence of discharge would include: citation by the permit
authority; discharge verified by the permit authority whether cited or
not; or other verifiable evidence that the permit authority determines
to be adequate to indicate a discharge has occurred.
Under this approach, there would be no allowance in the
certification process for facilities in the beef and dairy sectors
designed to contain runoff from a 25-year, 24-hour storm that had a
discharge anyway during an extreme storm event. Thus, in this respect,
the requirements for certification would be more stringent than those
that would apply to a permitted facility. EPA is thus proposing that a
facility that chooses not to be covered by an NPDES permit would not
get the benefits of NPDES coverage such as the 25-year, 24-hour storm
standard for beef and dairy operations, and upset and bypass defense.
Alternatively, EPA is soliciting
[[Page 3000]]
comment on the definition of a ``past or current discharge,'' including
whether to define it as a discharge from a facility that has not been
designed and constructed in accordance with today's proposed effluent
guidelines. This would make the certification requirements consistent
with those for permitted facilities.
Proximity to Waters of the U.S. Operations with production areas
that are located within 100 feet of waters of the U.S. are of
particular concern to EPA, since their proximity increases the chance
of discharge to waters and is a compelling factor that would indicate
the potential to discharge. Research has shown that the amount of
pollutants in runoff over land can be mitigated by buffers and
setbacks. (See Environmental Impact Assessment; Development of
Pollutant Loading Reductions from the Implementation of Nutrient
Management and Best Management Practices; both available in the
rulemaking Record.) Any operation located at a distance less than the
minimum setback poses a particular risk that contaminants will
discharge to receiving waters. EPA estimates that approximately 4,000
operations between 300 AU and 1,000 AU in size have production areas
that are within 100 feet of waters of the U.S.
Permit Nutrient Plan for Land Application of Manure and Wastewater.
For facilities that land apply manure, another condition indicative of
risk to water impairment is whether or not the facility has developed
and is implementing a Permit Nutrient Plan for manure and/or wastewater
that is applied to land that is owned or controlled by the AFO
operator. Contamination of water from excessive application of manure
and wastewater to fields and cropland presents a substantial risk to
the environment and public health because nutrients from agriculture
are one of the leading sources of water contamination in the United
States. While CAFOs are not the only source of contamination, they are
a significant source, and CAFO operators should apply manure properly
to minimize environmental impacts. Thus, EPA would require any facility
with 300 AU to 1,000 AU that does not have a PNP that conforms to
today's proposed effluent guidelines for land application to apply for
an NPDES permit. (As described in Section VII.E.1, the PNP is the
effluent guideline subset of elements in a CNMP. Section VIII.C.6 of
today's proposal describes the effluent guideline requirements in a
PNP.)
Certification for Off-site Transfer of CAFO-generated Manure. The
final condition for avoiding a permit concerns the transfer of CAFO-
generated manure and wastewater to off-site recipients. EPA is co-
proposing two ways to address manure transferred off-site, which are
discussed in detail in Section VII.D.2, as well as in VII.e.5.e. In
this condition, a facility would be considered a CAFO if more than 12
tons of manure is transported off-site to a single recipient annually,
unless the AFO owner or operator is complying with the requirements for
off-site transfer of manure, or is complying with the requirements of a
State program that are equivalent to the requirements of 40 CFR part
412.
Under one co-proposed option, the AFO owner or operator would be
required to obtain certifications from recipients that the manure will
be properly managed; to maintain records of the recipients and the
quantities transferred; and to provide information to the recipient on
proper manure management and test results on nutrient content of the
manure. Under the alternative option, CAFOs would not be required to
obtain certifications, but would still maintain the records of
transfers and provide the information to the recipients.
Under the first option, the CAFO owner or operator would obtain a
certification from recipients (other than waste haulers that do not
land apply the waste) that the manure: (1) Will be land applied in
accordance with proper agricultural practices as defined in today's
proposal; (2) will be applied in accordance with an NPDES permit; or
(3) will be used for alternative uses, such as for pelletizing or
distribution to other markets. If transferring manure and wastewater to
a waste hauler, the CAFO owner or operator would be required to obtain
the name and location of the recipients of the waste, if known, and
provide the hauler with an analysis of the content of the manure and a
brochure describing responsibilities for appropriate manure management,
which would be provided, in turn, to the recipient. These provisions
are discussed in more detail in Sections VII.D.4 and VII.E.4.
Excess Manure Alternative Considered. As an alternative to the two
conditions addressing land application of CAFO-generated manure, EPA
also considered a condition that would simply require the CAFO operator
to determine whether it generates more manure than the land under his
or her control could accommodate at allowable manure application rates,
and if so, it would be a CAFO, required to land apply according to a
PNP. Further, this condition would create a voluntary option for off-
site transfer of CAFO-generated manure whereby, if the manure was
transferred to someone certifying they had a certified CNMP and were
implementing it, the facility would not be a CAFO on the basis of
having excess manure.
EPA considered this criterion to identify which CAFOs were likely
to pose a risk of discharge and impacts to human health and the
environment based on generation of excess manure (e.g., more manure
than can be properly applied to land under his or her operational
control). Requiring such CAFOs to apply for an NPDES permit would allow
EPA to require these operations to maintain records documenting the
fate of the manure (e.g., whether it was land applied on-site or
transferred to a third party). EPA is interested in monitoring the fate
of the large quantities of manure generated by CAFOs, and in educating
recipients regarding proper agricultural practices. CAFO operators able
to certify there is sufficient cropland under their operational control
to accommodate the proper application of manure generated at their
facility would not be defined as CAFOs and thus would not need to apply
for an NPDES permit on that basis.
To identify facilities that generate excess manure, EPA considered
a screening tool originally developed by USDA, known as Manure Master.
The tool allows AFO operators to compare the nutrient content in the
animal manure produced by an AFO with the quantity of nutrients used
and removed from the field on which that manure is applied. This tool
would help assess the relative potential for the nutrients contained in
the animal manure to meet or exceed the crop uptake and utilization
requirements for those crops that receive applications of manure. The
screening tool calculates a balance between the nitrogen, phosphorus,
and potassium content in the manure and the quantity of these nutrients
used by particular crops. This balance can be calculated based upon
recommended fertilizer application rates, when known, or upon estimated
plant nutrient content, when recommended fertilizer application rates
are not known. For nitrogen, the balance is calculated taking into
account expected losses from leaching, denitrification, and
volatilization.
The manure screening tool would be available as either an Internet-
based program or as a computer software program that allows for direct
input of data and generation of reports. AFO operators would enter the
average number of confined animals by animal
[[Page 3001]]
type, the number of acres for each crop, and the expected yield for
each crop for which the operator expects to apply manure. The operator
would also specify whether the manure is incorporated into the soil or
surface applied. The software also allows, but does not require, entry
of soil test or other crop nutrient recommendations. The screening tool
produces a report that includes the balance (i.e., pounds needed or
pounds excess, per acre) for nitrogen, phosphorus, and potassium for an
AFO operator's fields. The balance will advise the operator whether the
quantity of nutrients in his or her animal manure exceeds the quantity
removed in harvested plants or the quantity of nutrients recommended.
There are many assumptions in this screening tool that make it too
general to use for detailed nutrient management planning, although it
would be useful as a rough means of determining whether a facility is
generating manure in excess of crop needs. The factors used to
calculate manure nutrient content are developed from estimates that
account for nutrient losses due to collection, storage, treatment, and
handling. When manure is not incorporated, an additional nitrogen loss
is included for volatilization. When the nutrients exceed nutrient
utilization, there is increased potential for nutrients to leach or
runoff from fields and become pollutants of ground or surface water.
This software is intended to be used as a decision support screening
tool to allow AFO operators to make a quick evaluation as to whether
the quantity of nutrients applied to the land on which manure is spread
exceeds the quantity of nutrients used by crops. EPA believes it could
be a valuable tool to determine, at a screening level, whether
available nutrients exceed crop needs and, thus, whether a facility has
a greater likelihood for generating the runoff of nutrients that could
impact water quality. EPA is not proposing this option as there are
concerns that simply having enough land may not provide assurance that
the manure would be applied in ways that avoided impairing water
quality. However, EPA is requesting comment below on an alternative
three-tier approach that would include such a screening tool as one of
the criteria for certifying that an AFO in the 300 to 1,000 AU size
category is not a CAFO.
Certifying That a Middle Tier AFO is not a CAFO. Under the three-
tier structure, EPA is proposing to allow AFOs with between 300 AU and
1,000 AU to certify to the permit authority that they do not meet any
of the risk-based conditions and thus are not CAFOs. The certification
would be a check-off form that would also request some basic
information about the facility, including name and address of the owner
and operators; facility name and address and contact person; physical
location and longitude and latitude information for the production
area; type and number of animals at the AFO; and signature of owner,
operator or authorized representative. The draft sample certification
form is included here for public comment.
Form for Certifying Out of the Concentrated Animal Feeding Operation
Provisions of the National Pollutant Discharge Elimination System
This checklist is to assist you in determining whether your
animal feeding operation (AFO) is, or is not, a concentrated animal
feeding operation (CAFO) subject to certain regulatory provisions.
For clarification, please see the attached fact sheet.
Section 1. First Determine Whether or not Your Facility Is an AFO
A facility that houses animals is an animal feeding operation
if:
Animals (other than aquatic animals) have been, are, or
will be stabled or confined and fed or maintained for a total of 45
days or more in any 12-month period.
Animals are not considered to be stabled or confined
when they are in areas such as pastures or rangeland that sustain
crops or forage growth during the entire time that animals are
present.
Yes, my facility is an AFO. PROCEED TO SECTION 2.
No, my facility is not an AFO. STOP. YOU DO NOT NEED TO SUBMIT
THIS FORM
Section 2. Determine the Size Range of Your AFO
If your facility is an AFO, and the number of animals is in the
size range for any animal type listed below, then you may
potentially be a concentrated animal feeding operation.
200-700 mature dairy cattle (whether milked or dry)
300-1000 head of cattle other than mature dairy cattle
750-2,500 swine each weighing over 25 kilograms (55 pounds)
3,000-10,000 swine each weighing under 25 kilograms (55 pounds)
30,000-100,000 chickens
16,500-55,000 turkeys
150-500 horses
3,000-10,000 sheep or lambs
1,500-5,000 ducks
My AFO is within this size range. PROCEED TO SECTION 3.
My AFO has fewer than the lower threshold number for any animal
type so I am not a CAFO under this description. STOP.
My AFO has more than the upper threshold number of animals for
any animal type. STOP. PLEASE CONTACT YOUR PERMIT AUTHORITY FOR
INFORMATION ON HOW TO APPLY FOR AN NPDES PERMIT.
Section 3. Minimum Requirements
Check all boxes that apply to your operation. If all of the
following boxes are checked, PROCEED TO SECTION 4.
My production area is not located within 100 feet of waters of
the U.S.
There is no direct contact of animals with waters of the U.S. in
the production area.
I am currently maintaining properly engineered manure and
wastewater storage and containment structures designed to prevent
discharge in either a 25-year, 24-hour storm (for beef and dairy
facilities) or all circumstances (for all other facilities), in
accordance with the effluent guidelines (40 CFR Part 412).
There are no discharges from the production area and there have
been no discharges in the past 5 years.
I have not been notified by my State permit authority or EPA
that my facility needs an NPDES permit
If any box in this section is not checked, you may not use this
certification and you must apply for an NPDES permit. STOP. PLEASE
CONTACT YOUR PERMIT AUTHORITY FOR MORE INFORMATION.
Section 4. Land Application
A. If all of the boxes in Section 3 are checked, you may be able
to certify that you are not a CAFO on the basis of ensuring proper
agricultural practices for land application of CAFO manure:
I either do not land apply manure or, if land applying manure, I
have, and am implementing, a certified Permit Nutrient Plan (PNP). I
maintain a copy of my PNP at my facility, including records of
implementation and monitoring; and
B. Check One:
My State has a program for excess manure in which I participate.
OR
[Alternative 1: I do not transfer more than 12 tons of manure to
any off-site recipients unless they have signed a certification form
assuring me that they are either 1) applying manure according to
proper agricultural practices; 2) obtaining an NPDES permit for
discharges; or 3) transferring manure to other non-land application
uses; and] [For Alternative 2, this box is not needed]
I maintain records of recipients, receiving greater than 12 tons
of manure annually, and the quantity and dates transferred, and I
provide recipients an analysis of the content of the manure as well
as information describing the recipients responsibilities for
appropriate manure management. If I transfer manure or wastewater to
a manure hauler, I also obtain the name and location of the
recipients of the manure, if known;
If a box is checked in both subsection A and subsection B above,
you may certify that you are not a CAFO. PROCEED TO SECTION 5.
If a box is not checked in both subsection A and subsection B
above, you may not use this certification form. STOP. YOU MUST APPLY
FOR AN NPDES PERMIT.
Section 5. Certification
I certify that I own or operate the animal feeding operation
described herein, and have legal authority to make management
decisions about said operation. I certify that
[[Page 3002]]
the information provided is true and correct to the best of my
knowledge.
I understand that in the event of a discharge to waters of the
U.S. from my AFO, I must report the discharge to the Permit
Authority and apply for a permit. I will report the discharge by
phone within 24 hours, submit a written report within 7 calendar
days, and make arrangements to correct the conditions that caused
the discharge.
In the event any of these conditions can no longer be met, I
understand that my facility is a CAFO and I must immediately apply
for a permit. I also understand that I am liable for any unpermitted
discharges. This certification must be renewed every 5 years.
I certify under penalty of law that this document either was
prepared by me or was prepared under my direction or supervision.
Based on my inquiry of the person or persons who gathered the
information, the information provided is, to the best of my
knowledge and belief, true, accurate and complete. I am aware that
there are penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations.
Facility Name----------------------------------------------------------
Name of Certifier------------------------------------------------------
Signature--------------------------------------------------------------
Date____________________
Check one: {time} owner {time} operator
Name & Address of other entity that exercises substantial operational
control of this CAFO:--------------------------------------------------
----------------------------------------------------------------------
Address of animal feeding operation:
County:
State:
Latitude/Longitude:
Phone:
Email:
Name of Closest Waters of the U.S.:
Distance to Waters:
Description of closest waters: (e.g. intermittent stream, perennial
stream; ground water aquifer):-----------------------------------------
----------------------------------------------------------------------
Where an operation in the 300-1000 AU size range has certified that
it meets all of the required conditions to be excluded from the CAFO
definition, if at any future point the operation fails to meet one or
more of these conditions, it would immediately become defined as a
CAFO. Any discharges from the operation at that point would be illegal
until the operation obtains a permit. For example, if an operation has
certified that it meets all of the conditions for being excluded from
the CAFO definition, but then has an actual discharge to the waters
(which would be inconsistent with the certification that there is no
``current discharge''), that discharge would be considered to be an
unpermitted discharge from a CAFO. Similarly, if an operation at any
point no longer has sufficient storage and containment to prevent
discharges, it would immediately become a CAFO and be required to apply
for a permit (regardless of whether it had any actual discharges).
Constructing the regulations in this way would do two things.
First, it would make clear that there is no shield from liability for
any operation that falsely certified that it met the conditions to be
excluded from regulation. Second, it would make clear that even in
cases where an operation has certified to all the required conditions
in good faith, there is no protection from the regulatory and
permitting requirements if at any point the operation no longer meets
those conditions. Operations would be on notice that if they had any
doubts about their continued ability to meet the conditions for
exclusion, they should decline to ``certify out'' and should apply for
a permit.
Alternative Three-tier Structure: Simplified Certification. EPA is
requesting comment on a variation of the three-tier structure being co-
proposed today. Under this alternative, operations with > 1,000 AU
would be subject to the same requirements as under both of today's co-
proposed options, and operations between 300 and 1,000 animal units
would be defined as CAFOs, required to obtain an NPDES permit, unless
they can certify that they do not meet the conditions for definition as
a CAFO. However, the conditions for making this certification would be
different than those under the proposed three-tier approach, and the
substantive permit requirements for operations between 300 and 1,000 AU
that do not certify would also be different.
Under this approach, operations between 300 and 1,000 AU, that are
not likely to be significant contributors of pollutants, could avoid
definition as a CAFO by certifying to a more limited range of factors.
The check list would indicate, for example, adequate facility design to
contain manure and runoff in up to a 25-year, 24-hour storm, use of
appropriate BMPs, and application of manure at agronomic rates. Under
this variation, the check list would be designed to minimize both the
required information and the substantive operational requirements for
these middle tier facilities on the grounds that, because they are
smaller size operations, they are less likely to be the type of
concentrated, industrial operations that Congress intended to include
as CAFOs. So, for example, the check list could allow several
alternatives for appropriate manure storage, including cost-effective
BMPs such as stacking manure in certain locations or in certain ways to
avoid discharge, in lieu of expanded structural storage capacity.
Similarly, the indication that manure is applied at agronomic rates
could be based on a simple ratio of animals to crop land, or on the use
of a more sophisticated screening tool, such as the USDA developed tool
described above, but would not necessarily require preparation of a
full CNMP by a certified planner. The check list might also include an
assurance by the operator that recipients of off-site manure are
provided nutrient test results and information on appropriate manure
management.
AFOs in this size category that are not able to certify, according
to the check list criteria, that they are not likely to be significant
contributors of pollutants to waters of the US would be defined as
CAFOs and thus required to obtain an NPDES permit. However, the
conditions in the permit would not necessarily be the same as those in
permits for operations with > 1,000 AU. In particular, the effluent
guidelines described in today's proposal would not be applicable to
these facilities. Rather, CAFOs in this size category would be required
to operate in accordance with BAT, as determined by the best
professional judgement (BPJ) of the permit writer. This is the same as
the existing requirement for CAFOs in this size category. Or, EPA might
promulgate an alternate set of national effluent guidelines for CAFOs
in this subcategory. Such effluent guidelines might include zero
discharge from the production area in up to a 25-year, 24-hour storm,
implementation of a PNP, appropriate BMPs, and appropriate management
of manure shipped off-site.
Under this approach, all 26,665 operations between 300 and 1,000 AU
would be affected by the rule, just as under the three-tier approach
being proposed today. However, EPA expects that a larger number of
facilities would be able to avoid definition as a CAFO and the
requirement to obtain a permit than under today's proposed approach.
EPA has not estimated the number of operations that would be defined as
CAFOs under this alternative three-tier approach, but expects that it
would be more than 16,420 but fewer than 31,930 (of which some 13,000
would have over 1,000 AU). For those facilities that did receive a
permit, compliance would generally be less expensive. This approach was
presented to small entity representatives (SERs) during the SBREFA
outreach conducted for this rule, and discussed in detail by the Small
Business Advocacy Review Panel that conducted the outreach. While some
concerns were expressed, the approach was generally received
[[Page 3003]]
favorably by both the SERs and the Panel. See the Panel Report (2000)
for a complete discussion of the Panel's consideration of this option.
EPA requests comment on this alternative three tier approach. In
particular, EPA requests comment on which items should be included in
the certification check list, and whether substantive permit
requirements for CAFOs in this size category should be left completely
up to the BPJ of the permit authority, or based on an alternate set of
effluent guidelines, as discussed above. After evaluating public
comments, EPA may decide to further explore this option. At that time,
EPA would develop and make available for public comment as appropriate
a more detailed description of the specific requirements of such an
approach, as well as a full analysis of its costs, benefits, and
economic impacts. In particular, EPA would add an analysis to the
public record of why it would be appropriate to promulgate different
effluent guideline requirements, or no effluent guideline requirements,
for CAFOs that have between 300 and 1,000 AU as compared to the
effluent guidelines for operations with greater than 1,000 AU. This
would include an evaluation of whether the available technologies and
economic impacts are different for the smaller versus the larger CAFOs.
4. Comparative Analysis
EPA is proposing both the two- and three-tier structures for public
comment as they both offer desirable qualities. On the one hand, the
two-tier structure is simple and clear, focuses on the larger
operations, and provides regulatory relief to smaller businesses.
However, it requires permits of all facilities meeting the size
threshold. On the other hand, the three-tier structure offers
flexibility to States for addressing environmental impacts of AFOs
through non-NPDES programs or non-regulatory programs, while focusing
the regulation on facilities demonstrating certain risk
characteristics. It imposes, however, some degree of burden to all
facilities more than 300 AU.
The costs of each of the six alternatives considered by EPA are
discussed in Section X of today's proposal, and benefits are discussed
in Section XI. Key findings from EPA's analysis are summarized in Table
7-8 for quick reference. See Sections X and XI for full discussions and
explanations.
EPA solicits comment on both of today's alternative proposed
structures, as well as on the two alternatives discussed above.
EPA is also soliciting comment on whether or not to adopt both the
two-tier and the three-tier structures, and to provide a mechanism to
allow States to select which of the two alternative proposed structures
to adopt in their State NPDES program. Under this option, a State could
adopt the structure that best fits with the administrative structure of
their program, and that best serves the character of the industries
located in their State and the associated environmental problems. This
option is viable only if the Agency is able to determine that the two
structures provide substantially similar environmental benefits by
regulating equivalent numbers of facilities and amounts of manure.
Otherwise, States would be in a position to choose a less stringent
regulation, contrary to the requirements of the Clean Water Act.
EPA's preliminary assessment is that there appear to be significant
differences in the scope of the structures, such that the two-tier
structure could be considered less stringent than the three-tier
structure, depending upon which structures, criteria and thresholds are
selected in the final proposal. As table 7-8 indicates, for example,
the co-proposed two-tier structure with a 500 AU threshold would
regulated 25,540 operations, whereas the co-proposed three-tier
structure would regulate up to 39,320 operations. A two-tier structure
with 750 AU would regulate 19,100 operations, whereas the alternative,
less stringent, three-tier structure would regulate as few as 16,000
and as many as 32,000. The range of manure covered under these various
alternatives ranges from as little as 49% to as much as 72% of all AFO
manure. Further, how each animal sector is affected varies with each
alternative, with some alternatives being significantly less protective
in certain sectors than other alternatives. Section VI of today's
preamble provides more information on the affects on each animal sector
of various alternatives.
EPA is not able to conclude that the stringency of the two options
is equivalent, due to the lack of data and EPA's uncertainty over
exactly how many facilities may be subject to regulation under each
alternative. Therefore, EPA is not proposing this option. However, EPA
seeks comment on the option to allow States to select which of two
structures to implement, and requests information on establishing
whether two options provide equivalent environmental protection.
Table 7-8.--Comparison of Regulatory Alternatives for Select Criteria a
----------------------------------------------------------------------------------------------------------------
Baseline 2-Tier alternatives 3-Tier alternatives
Criteria -------------------------------------------------------------------
>1000 AU >750 AU >500 AU >300 AU Proposed Alternative
----------------------------------------------------------------------------------------------------------------
Number Operations that will be Required to 12,660 19,100 25,540 39,320 \1\ 31,93 \2\ >16,420
Obtain a Permit............................ 0
Percentage of Affected Operations Required 3 5 7 11 9 10
to Obtain a Permit.........................
Estimated Compliance Costs to CAFOs 605 721 831 980 930 >680
($million/year, pre-tax)...................
Percentage Manure Covered by Proposed 49 58 64 72 72 \3\ ND
Regulations................................
----------------------------------------------------------------------------------------------------------------
\1\ Three-tier Proposed: Number of affected facilities up to 39,320. Number of permitted facilities between
16,000 and 32,000, rounded.
\2\ Three-tier Alternative: Number of affected facilities and industry costs are expected to be greater than
that estimated for NPDES Scenario 1 (``Status Quo'').
\3\ ND = Not Determined.
5. Additional Scenarios Considered But Not Proposed
EPA also considered two other scenarios, which would retain the
existing three-tier approach.
a. Scenario 1: Retain Existing Structure. One of the alternative
regulatory scenarios would incorporate all of today's proposed
revisions except those related to the tiered structure for defining
which AFOs are CAFOs. In other words, the existing three-tier structure
(greater than 1,000 AU; 300 AU to 1,000 AU; fewer than 300 AU) would
remain in place, and the conditions for defining the middle tier
operations would not change. Thus, as under the existing regulation,
mid-sized AFOs (300 AU to 1,000 AU) would be defined as CAFOs only if,
in addition to the number of animals confined, they
[[Page 3004]]
also meet one of the two specific criteria governing the method of
discharge: (1) Pollutants are discharged through a man-made ditch,
flushing system, or other similar man-made device; or (2) pollutants
are discharged directly into waters of the United States that originate
outside of the facility and pass over, across, or through the facility
or otherwise come into direct contact with the confined animals.
EPA is not proposing this scenario because these conditions have
proven to be difficult to interpret and implement for AFOs in the 300
to 1,000 AU size category, and thus have not facilitated compliance or
enforcement, and the scenario does not meet the goal of today's
proposal to simplify the NPDES regulation for CAFOs. The two criteria
governing method of discharge, e.g., ``man-made device'' and ``stream
running through the CAFO,'' are subject to interpretation, and thus
difficult for AFO operators in this size range to determine whether or
not the permit authority would consider them to be a CAFO. EPA does not
believe it is necessary to retain these criteria because all discharges
of pollutants from facilities of this size should be considered point
source discharges. While the other proposed changes go a long way to
improve the effectiveness of the NPDES program for CAFOs, EPA believes
the definition criteria for facilities in this size range also need to
be amended to make the regulation effective, simple, and enforceable.
b. Scenario 2: Revised Conditions Without Certification. The second
scenario EPA considered would also retain the existing three-tier
structure, and would modify the conditions for defining the middle tier
AFOs as CAFOs in the same way that today's proposed three-tier
structure does. That is, any AFO that meets the size condition (300 AU
to 1,000 AU) would be defined as a CAFO if it met one or more of the
following risk-based conditions: (1) Direct contact of animals with
waters of the U.S.; (2) insufficient storage and containment at the
production area to prevent discharge from reaching waters of the U.S.;
(3) evidence of discharge in the last five years; (4) the production
area is located within 100 feet of waters of the U.S.; (5) the operator
does not have, or is not implementing, a Permit Nutrient Plan; and (6)
any manure transported off-site is transferred to recipients of more
than twelve tons annually without following proper off-site manure
management, described above in the discussion of the three-tier
structure (co-proposed with omitting this requirement).
In this scenario, owners or operators of AFOs in the middle tier
would not be required to certify to the permit authority that the
facility is not a CAFO. However, all facilities that do meet one or
more of the conditions would have a duty to apply for an NPDES permit.
This scenario is not being proposed because of concerns that there
would be no way for the permit authority to know which operations were
taking the exemption and which should, in fact, be applying for a
permit. The certification scenario provides a measure of assurance to
the public, the permit authority, and the facilities' owners or
operators, that CAFOs and AFOs are implementing necessary practices to
protect water quality.
C. Changes to the NPDES Regulations
In addition to changing the threshold for determining which
facilities are CAFOs, EPA is proposing a number of other changes that
address how the permitting authority determines whether a facility is
an AFO or a CAFO that, therefore, must apply for an NPDES permit. These
proposed revisions are discussed in this section and in section D.
1. Change the AFO Definition to Clearly Distinguish Pasture Land
EPA is proposing to clarify the regulatory language that defines
the term ``animal feeding operations,'' or AFO, in order to remove
ambiguity. See proposed Sec. 122.23(a)(2). The proposed rule language
would clarify that animals are not considered to be ``stabled or
confined'' when they are in areas such as pastures or rangeland that
sustain crops or forage during the entire time animals are present.
Other proposed changes to the definition of AFO are discussed below in
section 3.e.
To be considered a CAFO, a facility must first meet the AFO
definition. AFOs are enterprises where animals are kept and raised in
confined situations. AFOs concentrate animals, feed, manure and urine,
dead animals, and production operations on a small land area. Feed is
brought to the animals rather than the animals grazing or otherwise
seeking feed in pastures, fields, or on rangeland. The current
regulation [40 CFR 122.23(b)(1)] defines an AFO as a ``lot or facility
where animals have been, are, or will be stabled or confined and fed or
maintained for a total of 45 days or more in any 12 month period; and
where crops, vegetation[,] forage growth, or post-harvest residues are
not sustained over any portion of the lot or facility in the normal
growing season'' [emphasis added].
The definition states that animals must be kept on the lot or
facility for a minimum of 45 days, in a 12-month period. If an animal
is at a facility for any portion of a day, it is considered to be at
the facility for a full day. However, this does not mean that the same
animals must remain on the lot for 45 consecutive days or more; only
that some animals are fed or maintained on the lot or at the facility
45 days out of any 12-month period. The 45 days do not have to be
consecutive, and the 12-month period does not have to correspond to the
calendar year. For example, June 1 to the following May 31 would
constitute a 12-month period.
The definition has proven to be difficult to implement and has led
to some confusion. Some CAFO operators have asserted that they are not
AFOs under this definition where incidental growth occurs on small
portions of the confinement area. In the case of certain wintering
operations, animals confined during winter months quickly denude the
feedlot of growth that grew during the summer months. The definition
was not intended to exclude, from the definition of an AFO, those
confinement areas that have growth over only a small portion of the
facility or that have growth only a portion of the time that the
animals are present. The definition is intended to exclude pastures and
rangeland that are largely covered with vegetation that can absorb
nutrients in the manure. It is intended to include as AFOs areas where
animals are confined in such a density that significant vegetation
cannot be sustained over most of the confinement area.
As indicated in the original CAFO rulemaking in the 1970s, the
reference to vegetation in the definition is intended to distinguish
feedlots (whether outdoor confinement areas or indoor covered areas
with constructed floors) from pasture or grazing land. If a facility
maintains animals in an area without vegetation, including dirt lots or
constructed floors, the facility meets this part of the definition.
Dirt lots with nominal vegetative growth while animals are present are
also considered by EPA to meet the second part of the AFO definition,
even if substantial growth of vegetation occurs during months when
animals are kept elsewhere. Thus, in the case of a wintering operation,
EPA considers the facility an AFO potentially subject to NPDES
regulations as a CAFO. It is not EPA's intention, however, to include
within the AFO definition pasture or rangeland that has a small, bare
patch of land, in an otherwise vegetated area, that is caused by
animals frequently
[[Page 3005]]
congregating if the animals are not confined to the area.
The following examples are presented to further clarify EPA's
intent. (1) When animals are restricted to vegetated areas as in the
case of rotational grazing, they would not be considered to be confined
in an AFO if they are rotated out of the area while the ground is still
covered with vegetation. (2) If a small portion of a pasture is barren
because, e.g., animals congregate near the feed trough in that portion
of the pasture, that area is not considered an AFO because animals are
not confined to the barren area. (3) If an area has vegetation when
animals are initially confined there, but the animals remove the
vegetation during their confinement, that area would be considered an
AFO. This may occur, for instance, at some wintering operations.
Thus, to address the ambiguities noted above, EPA is proposing to
clarify the regulatory language that defines the term ``animal feeding
operation'' as follows: ``An animal feeding operation or AFO is a
facility where animals (other than aquatic animals) have been, are, or
will be stabled or confined and fed or maintained for a total of 45
days or more in any 12-month period. Animals are not considered to be
stabled or confined when they are in areas such as pastures or
rangeland that sustain crops or forage growth during the entire time
that animals are present. Animal feeding operations include both the
production area and land application area as defined below.'' EPA is
interested in receiving comments regarding whether the proposed
revision to the AFO definition clearly distinguishes confinement areas
from pasture land.
2. Proposed Changes to the NPDES Permitting Regulation for Determining
Which AFOs are CAFOs
To improve the effectiveness and clarity of the NPDES regulation
for CAFOs, EPA is proposing to revise the regulation as discussed in
the following sections.
a. Eliminate the Term ``Animal Unit''. To remove confusion for the
regulated community concerning the definition of the term ``animal
unit'' or ``AU,'' EPA is proposing to eliminate the use of the term in
the revised regulation. Instead of referring to facilities as having
greater or fewer than 500 animal units, for example, EPA will use the
term ``CAFO'' to refer to those facilities that are either defined or
designated, and all others as ``AFOs.'' However, in the text of today's
preamble, the term AU will be used in order to help the reader
understand the differences between the existing regulation and today's
proposal. If this revision is adopted, the term AU will not be used in
the final regulation. Section VII.B, above, lists the numbers of
animals in each sector that would be used to define a facility as a
CAFO.
EPA received comment on the concept of animal units during the AFO
Strategy listening sessions, the small business outreach process, and
on comments submitted for the draft CAFO NPDES Permit Guidance and
Example Permit. EPA's decision to move away from the concept of
``animal units'' is supported by the inconsistent use of this concept
across a number of federal programs, which has resulted in confusion in
the regulated community. A common thread across all of the federal
programs is the need to normalize numbers of animals across animal
types. Animal units have been established based upon a number of
different values that include live weight, forage requirements, or
nutrient excretion.
USDA and EPA have different ``animal unit'' values for the
livestock sectors. Animal unit values used by USDA are live-weight
based, and account for all sizes and breeds of animals at a given
operation. This is particularly confusing as USDA's animal unit
descriptions result in different values in each sector and at each
operation.
The United States Department of Interior (Bureau of Land Management
and National Park Service) also references the concept of ``animal
unit'' in a number of programs. These programs are responsible for the
collection of grazing fees for federal lands. The animal unit values
used in these programs are based upon forage requirements. For Federal
lands an animal unit represents one mature cow, bull, steer, heifer,
horse, mule, or five sheep, or five goats, all over six months of age.
An animal unit month is based on the amount of forage needed to sustain
one animal unit for one month. Grazing fees for Federal lands are
charged by animal unit months.
In summary, using the total number of head that defines an
operation as a CAFO will minimize confusion with animal unit
definitions established by other programs. See tables 7-6 and 7-7
above.
b. How Will Operations With Mixed Animal Types be Counted? EPA is
proposing to eliminate the existing mixed animal provision, which
currently requires an operator to add the number of animal units from
all animal sectors at the facility when determining whether it is a
CAFO. (Poultry is currently excluded from this mixed animal type
calculation). While the mixed calculation would be eliminated, once the
number of animals from one sector (e.g. beef, dairy, poultry, swine,
veal) of one type cause an operation to be defined as a CAFO, manure
from all confined animal types at the facility would be covered by the
permit conditions. In the event that waste streams from multiple
livestock species are commingled, and the regulatory requirements for
each species are not equivalent, the permit must apply the more
stringent requirements.
In the existing regulation, a facility with 1,000 animal units or
the cumulative number of mixed animal types which exceeds 1,000, is
defined as a CAFO. Animal unit means a unit of measurement for any
animal feeding operation calculated by adding the following numbers:
the number of slaughter and feeder cattle multiplied by 1.0, plus the
number of mature dairy cattle multiplied by 1.4, plus the number of
swine weighing over 25 kilograms (approximately 55 pounds) multiplied
by 0.4, plus the number of sheep multiplied by 0.1, plus the number of
horses multiplied by 2.0. As mentioned, poultry operations are excluded
from this mixed unit calculation as the current regulation simply
stipulates the number of birds that define the operation as a CAFO, and
assigns no multiplier.
Because simplicity is one objective of these proposed regulatory
revisions, the Agency believes that either all animal types, including
poultry, covered by the effluent guidelines and NPDES regulation should
be included in the formula for mixed facilities, or EPA should
eliminate the facility multipliers from the revised rule. Today's
rulemaking proposes changes that would have to be factored in to a
revised mixed animal calculation which would make the regulation more
complicated to implement. For example, EPA is proposing to cover
additional animal types (dry chicken operations, immature swine and
heifer operations). Thus, EPA is proposing to eliminate the mixed
operation calculation rather than revise it and create a more
complicated regulation to implement that would potentially bring
smaller farms into regulation.
EPA believes that the effect of this proposed change would be
sufficiently protective of the environment while maintaining a
consistently enforceable regulation. EPA estimates 25 percent of AFOs
with less than 1,000 AU have multiple animal types present
simultaneously at one location, and only a small fraction of these AFOs
would be CAFOs exceeding either 300 AU or 500 AU when all animal types
are
[[Page 3006]]
counted. EPA also believes that few large AFOs possess mixed animals
due to the increasingly specialized nature of livestock and poultry
production. Therefore, EPA believes that a rule which required mixed
animal types to be part of the threshold calculation to determine if a
facility is a CAFO would result in few additional operations meeting
the definition of a CAFO. In addition, most facilities with mixed
animal types tend to be much smaller, and tend to have more
traditional, oftentimes more sustainable, production systems. These
farms tend to be less specialized, engaging in both animal and crop
production. They often have sufficient cropland and fertilizer needs to
land apply manure nutrients generated at the farm's livestock or
poultry business. Nevertheless, should such an AFO be found to be a
significant contributor of pollution to waters of the U.S., it could be
designated a CAFO by the permit authority.
EPA is, therefore, proposing to eliminate the mixed animal
calculation in determining which AFOs are CAFOs. Once an operation is a
CAFO for any reason, manure from all confined animal types at the
facility is subject to the permit requirements. EPA is requesting
comment on the number of operations that could potentially have the
equivalent of 500 AU using the mixed calculation that would be excluded
from regulation under this proposal.
c. Is an AFO Considered a CAFO if it Only Discharges During a 25-
Year, 24-Hour Storm? EPA is proposing to eliminate the 25-year, 24-hour
storm event exemption from the CAFO definition (40 CFR 122.23, Appendix
B), thereby requiring any operation that meets the definition of a CAFO
either to apply for a permit or to establish that it has no potential
to discharge. Under the proposed three-tier structure an operation with
300 AU to 1,000 AU may certify that it is not a CAFO if it is designed,
constructed, and maintained in accordance with today's effluent
guidelines and it does not meet any of the risk-based conditions. See
Section VII.B.2.
The existing NPDES definition of a CAFO provides that ``no animal
feeding operation is a concentrated animal feeding operation * * * as
defined above * * * if such animal feeding operation discharges only as
the result of a 25-year, 24-hour storm event'' (40 CFR Sec. 122.23,
Appendix B). This provision applies to AFOs with 300 AU or more that
are defined as CAFOs under the existing regulation. (Facilities of any
size that are CAFOs by virtue of designation are not eligible for this
exemption because, by the terms of designation, it does not apply to
them. Moreover, they have been determined by the permit authority to be
a significant contributor of pollution to waters of the U.S.)
The 25-year, 24-hour standard is an engineering standard used for
construction of storm water detention structures. The term ``25-year,
24-hour storm event'' means the maximum 24-hour precipitation event
with a probable recurrence of once in 25 years, as defined by the
National Weather Service (NWS) in Technical Paper Number 40 (TP40),
``Rainfall Frequency Atlas of the United States,'' May 1961, and
subsequent amendments, or by equivalent regional or State rainfall
probability information developed therefrom. [40 CFR Part 412.11(e)].
(Note that the NWS is updating some of the Precipitation Frequency
Publications, including part of the TP40. In 1973, the National
Atmospheric and Oceanic Administration (NOAA) issued the NOAA Atlas 2,
Precipitation Frequency Atlas of the Western United States. The Atlas
is published in a separate volume for each of the eleven western
states. An update for four of the State volumes is currently being
conducted. In addition, the NWS is updating TP40 for the Ohio River
Basin which covers a significant portion of the eastern U.S. The
updates will reflect more than 30 years of additional data and will
benefit from NWS enhanced computer capabilities since the original
documents were generated almost 40 years ago.) As discussed further in
section VIII, the 25-year, 24-hour storm event also is used as a
standard in the effluent limitation guideline.
The circularity of the 25-year, 24-hour storm event exemption in
the existing CAFO definition has created confusion that has led to
difficulties in implementing the NPDES regulation. The effluent
guidelines regulation, which is applicable to permitted CAFOs, requires
that CAFOs be designed and constructed to contain such an event.
However, the NPDES regulations allows facilities that discharge only as
a result of such an event to avoid obtaining a permit. This exemption
has resulted in very few operations actually obtaining NPDES permits,
which has hampered implementation of the NPDES program. While there are
an estimated 12,000 AFOs likely to meet the current definition of a
CAFO, only about 2,500 such facilities have obtained an NPDES permit.
Many of these unpermitted facilities may incorrectly believe they
qualify for the 25-year, 24-hour storm permitting exemption. These
unpermitted facilities operate outside the current NPDES program, and
State and EPA NPDES permit authorities lack the basic information
needed to determine whether or not the exemption has been applied
correctly and whether or not the CAFO operation is in compliance with
NPDES program requirements.
EPA does not believe that the definition as a CAFO should hinge on
whether an AFO only discharges pollutants due to a 25-year, 24-hour
storm event. Congress clearly intended for concentrated animal feeding
operations to be subject to NPDES permits by explicitly naming CAFOs as
point sources in the Clean Water Act Section 502(14). Further, Section
101(a) of the Act specifically states that elimination of discharges
down to zero is to be achieved where possible, and EPA does not believe
that facilities should avoid the regulatory program altogether by
merely claiming that they meet the 25-year, 24-hour criterion. This
issue is discussed further below in section VII.C.2(c).
The public has expressed widespread concern regarding whether some
of these currently unpermitted facilities are, in fact, entitled to
this exemption. Based on comments EPA has received in a variety of
forums, including during the AFO Strategy listening sessions and on the
draft CAFO permit guidance, EPA believes there is a strong likelihood
that many of these facilities are discharging pollutants to waters of
the U.S. EPA is concerned that, in applying the 25-year, 24-hour storm
exemption, operations are not now taking into consideration runoff from
their production areas, or are improperly interpreting which discharges
are the result of 25-year 24-hour storms and chronic rainfall which may
result in breaches and overflows of storage systems, all of which cause
pollution to enter waters of the U.S. Additionally, facilities may not
be considering discharges from improper land application of manure and
wastewater.
EPA is today proposing to eliminate the 25-year, 24-hour storm
exemption from the CAFO definition (40 CFR 122.23, Appendix B) in order
to: (a) Ensure that all CAFOs with a potential to discharge are
appropriately permitted; (b) ensure through permitting that facilities
are, in fact, properly designed, constructed, and maintained to contain
a 25-year, 24-hour storm event, or to meet a zero discharge
requirement, as the case may be; (c) improve the ability of EPA and
State permit authorities to monitor compliance; (d) ensure that
facilities do
[[Page 3007]]
not discharge pollutants from their production areas or from excessive
land application of manure and wastewater; (e) make the NPDES
permitting provision consistent with today's proposal to eliminate the
25-year, 24-hour storm design standard from the effluent guidelines for
swine, veal and poultry; and (f) achieve EPA's goals of simplifying the
regulation, providing clarity to the regulated community, and improving
the consistency of implementation.
Under the proposed two-tier structure, any facility that is defined
as a CAFO would be a CAFO even if it only discharges in the event of a
25-year, 24-hour storm. Further, the CAFO operator would be required to
apply for an NPDES permit, as discussed below regarding the duty to
apply for a NPDES permit. (If the operator believes the facility never
discharges, the operator could request a determination of no potential
to discharge, as discussed below.) Under the three-tier structure a
facility with 300 AU to 1,000 AU would be required to either certify it
is not a CAFO, to apply for a permit, or demonstrate it has no
potential to discharge. Today's effluent guidelines proposal would
retain the design specification for beef or dairy facilities, which
would allow a permitted facility to discharge due to a 25-year, 24-hour
event, as long as the facility's containment system is designed,
constructed and operated to handle manure and wastewater plus
precipitation from a 25-year, 24-hour storm event (unless a permit
writer imposed a more stringent, water quality-based effluent
limitation). However, a facility that meets the definition of CAFO and
discharges during a 25-year, 24-hour storm event, but has failed to
apply for an NPDES permit (or to certify in the three-tier structure),
would be subject to enforcement for violating the CWA. Swine, veal and
poultry CAFOs would be required to achieve a zero discharge standard at
all times.
EPA considered limiting this change to the very largest CAFOs
(e.g., operations with 1,000 or more animal units), and retaining the
exemption for smaller facilities. However, EPA is concerned that this
could allow significant discharges resulting from excessive land
application of manure and wastewater to remain beyond the scope of the
NPDES permitting program, thereby resulting in ongoing discharge of
CAFO-generated pollutants into waters of the U.S. Moreover, EPA
believes that retaining the exemption for certain operations adds
unnecessary complexity to the CAFO definition.
The Small Business Advocacy Review Panel also considered the idea
of removing the 25-year, 24-hour exemption. While the Panel agreed that
this was generally appropriate for operations above the 1,000 AU
threshold, it was divided on whether it would also be appropriate to
remove the exemption for facilities below this threshold. The Panel
noted that for some such facilities, removing the exemption would not
expand the scope of the current regulation, but rather ensure coverage
for facilities that should already have obtained a permit. However, the
Panel also recognized that eliminating the exemption would require
facilities that do properly quality for it--e.g., because they do have
sufficient manure management and containment in place, or for some
other reason, do not discharge except in a 25-year, 24-hour storm--to
obtain a permit or certify that none is needed. The Panel recommended
that EPA carefully weigh the costs and benefits of removing the
exemption for small entities and that it fully analyze the incremental
costs associated with permit applications for those facilities not
presently permitted that can demonstrate that they do not discharge in
less than a 25-year, 24-hour storm event, as well as any costs
associated with additional conditions related to land application,
nutrient management, or adoption of BMPs that the permit might contain.
The Panel further recommended that EPA consider reduced application
requirements for small operators affected by the removal of the
exemption. The Agency requests comment on whether to retain this
exemption for small entities and at what animal unit threshold would be
appropriate for doing so.
d. Who Must Apply for and Obtain an NPDES Permit? EPA is proposing
today to adopt regulations that would expressly require all CAFO owners
or operators to apply for an NPDES permit. See proposed Sec. 122.23(c).
That is, owners or operators of all facilities defined or designated as
CAFOs would be required to apply for an NPDES permit. The existing
regulations contain a general duty to apply for a permit, which EPA
believes applies to virtually all CAFOs. The majority of CAFO owner or
operators, however, have not applied for an NPDES permit. Today's
proposed revisions would clarify that all CAFOs owners or operators
must apply for an NPDES permit; however, if he or she believes the CAFO
does not have a potential to discharge pollutants to waters of the U.S.
from either its production area or its land application area(s), he or
she could make a no potential discharge demonstration to the permit
authority in lieu of submitting a full permit application. If the
permit authority agrees that the CAFO does not have a potential to
discharge, the permit authority would not need to issue a permit.
However, if the unpermitted CAFO does indeed discharge, it would be
violating the CWA prohibition against discharging without a permit and
would be subject to civil and criminal penalties. Thus, an unpermitted
CAFO does not get the benefit of the 25-year, 24-hour storm standard
established by the effluent guidelines for beef and dairy, nor does it
have the benefit of the upset and bypass affirmative defenses.
The duty to apply for a permit under existing regulations. EPA
believes that virtually all facilities defined as CAFOs already have a
duty to apply for a permit under the current NPDES regulations, because
of their past or current discharges or potential for future discharge.
Under NPDES regulations at 40 CFR Part 122.21(a), any person who
discharges or proposes to discharge pollutants to the waters of the
United States from a point source is required to apply for an NPDES
permit. CAFOs are point sources by definition, under Sec. 502 of the
CWA and 40 CFR 122.2. Thus, any CAFO that ``discharges or proposes to
discharge'' pollutants must apply for a permit.
Large CAFOs with greater than 1,000 AU pose a risk of discharge in
a number of different ways. For example, a discharge of pollutants to
surface waters can occur through a spill from the waste handling
facilities, from a breach or overflow of those facilities, or through
runoff from the feedlot area. A discharge can also occur through runoff
of pollutants from application of manure and associated wastewaters to
the land or through seepage from the production area to ground water
where there is a direct hydrologic connection between ground water and
surface water. Given the large volume of manure these facilities
generate and the variety of ways they may discharge, and based on EPA's
and the States' own experience in the field, EPA believes that all or
virtually all large CAFOs have had a discharge in the past, have a
current discharge, or have the potential to discharge in the future. A
CAFO that meets any one of these three criteria would be a facility
that ``discharges or proposes to discharge'' pollutants and would
therefore need to apply for a permit under the current regulations.
Where CAFO has not discharged in the past, does not now discharge
pollutants, and does not expect to discharge pollutants in the future,
EPA
[[Page 3008]]
believes that the owner or operator of that facility should demonstrate
during the NPDES permit application process that it is, in fact, a ``no
discharge'' facility. See proposed Sec. 122.23(e). EPA anticipates that
very few large CAFOs will be able to successfully demonstrate that they
do not discharge pollutants and do not have a reasonable potential to
discharge in the future, and furthermore, that very few large CAFOs
will wish to forego the protections of an NPDES permit. For instance,
only those beef and dairy CAFOs with an NPDES permit will be authorized
to discharge in a 25-year, 24-hour storm.
EPA also believes that a CAFO owner or operator's current
obligation to apply for an NPDES permit is based not only on discharges
from the feedlot area but also on discharges from the land application
areas under the control of the CAFO operator. More specifically,
discharges of CAFO-generated manure and/or wastewater from such land
application areas should be viewed as discharges from the CAFO itself
for the purpose of determining whether it has a potential to discharge.
EPA recognizes, however, that it has not previously defined CAFOs to
include the land application area. EPA is proposing to explicitly
include the land application area in the definition of a CAFO in
today's action.
The need for a clarified, broadly applicable duty to apply. EPA
believes that virtually all large CAFOs have had a past or current
discharge or have the potential to discharge in the future, and that
meeting any one of these criteria would trigger a duty to apply for a
permit. Today, EPA is proposing to revise the regulations by finding
that, as a rebuttable presumption, all CAFOs do have a potential to
discharge and, therefore, are required to apply for and to obtain an
NPDES permit unless they can demonstrate that they will not discharge.
See proposed Sec. 122.23(c). (See section VII(F)3 for a fuller
discussion on demonstrating ``no potential to discharge.'')
EPA has not previously sought to categorically adopt a duty to
apply for an NPDES permit for all facilities within a particular
industrial sector. The Agency is proposing today to do so for CAFOs for
reasons that involve the unique characteristics of CAFOs and the zero
discharge regulatory approach that applies to them.
First, as noted, since the inception of the NPDES permitting
program in the 1970s, a relatively small number of larger CAFOs has
actually sought permits. Information from State permit authorities and
EPA's own regional offices indicates that, currently, approximately
2,500 CAFOs have NPDES permits out of approximately 12,000 CAFOs with
greater than 1,000 AU.
EPA believes there are a number of reasons why so few CAFOs have
sought NPDES permits over the years. The primary reason appears to be
that the definition of a CAFO in the current regulations (as echoed in
the regulations of some State programs) excludes animal feeding
operations that do not discharge at all or discharge only in the event
of a 25-year, 24-hour storm. [40 CFR 122.23, Appendix B]. Based on the
existing regulation, many animal feeding operations that claim to be
``zero dischargers'' believe that they are not subject to NPDES
permitting because they are excluded from the CAFO definition and thus
are not CAFO point sources.
EPA believes that many of the facilities that have relied on this
exclusion from the CAFO definition may have misinterpreted this
provision. It excludes facilities from the CAFO definition only when
they neither discharge pollutants nor have the potential to discharge
pollutants in a 25-year, 24-hour storm. In fact, as explained above, a
facility that has at least a potential to discharge pollutants (and
otherwise meets the CAFO definition) not only is defined as a CAFO but
also has a duty to apply for an NPDES permit, regardless of whether it
actually discharges. (40 CFR 122.21(a)). Thus, many facilities that
have at least a potential to discharge manure and wastewaters may have
avoided permitting based on an incorrect reliance on this definitional
exclusion.
To compound the confusion under the current regulations, EPA
believes, there has been misinterpretation surrounding the issue of
discharges from a CAFO's land application areas. As EPA has explained
in section VII.D of today's notice, runoff from land application of
CAFO manure is viewed as a discharge from the CAFO point source itself.
Certain operations may have claimed to be ``zero dischargers'' when in
fact they were not, and are not, zero dischargers when runoff from
their land application areas is taken into account.
Another category of operations that may have improperly avoided
permitting are those that have had a past discharge of pollutants, and
are not designed and operated to achieve zero discharge except in a 25-
year, 24-hour storm event. Many of these facilities may have decided
not to seek a permit because they believe they will not have any future
discharges. However, as explained above, an operation that has had a
past discharge of pollutants is covered by the NPDES permitting
regulations in the same way as operations that have a ``potential'' to
discharge--i.e., it is not only defined as a CAFO (where it meets the
other elements of the definition) but is required to apply for a permit
[Carr v. Alta Verde Industries, Inc., 931 F.2d 1055 (5th Cir. 1991)].
Facilities that have had a past discharge meet the criteria of
Sec. 122.21(a), in EPA's view, both as ``dischargers'' and as
operations that have the potential for further discharge. Accordingly,
they are required to apply for an NPDES permit. Misinterpretation
regarding the need to apply for a permit may also have occurred in
cases where the past discharges were from land application runoff, as
explained above.
Finally, the nature of these operations is that any discharges from
manure storage structures to waters of the U.S. are usually only
intermittent, either due to accidental releases from equipment failures
or storm events or, in some cases, deliberate releases such as pumping
out lagoons or pits. The intermittent nature of these discharges,
combined with the large numbers of animal feeding operations
nationwide, makes it very difficult for EPA and State regulatory
agencies to know where discharges have occurred (or in many cases,
where animal feeding operations are even located), given the limited
resources for conducting inspections. In this sense, CAFOs are distinct
from typical industrial point sources subject to the NPDES program,
such as manufacturing plants, where a facility's existence and location
and the fact that it is discharging wastewaters at all is usually not
in question. Accordingly, it is much easier for CAFOs to avoid the
permitting system by not reporting their discharges, and there is
evidence that such avoidances have taken place.
In sum, EPA believes it is very important in these regulatory
revisions to ensure that all CAFOs have a duty to apply for an NPDES
permit, including those facilities that currently have a duty to apply
because they meet the definition of CAFO under the existing regulations
and those facilities which would meet the proposed revised definition
of CAFO. Two of the revisions that EPA is proposing today to other
parts of the CAFO regulations would themselves significantly address
this matter. First, EPA is proposing to eliminate the 25-year, 24-hour
storm exemption from the definition of a CAFO. Operations would no
longer be able to avoid being defined as CAFO point sources subject to
permitting on
[[Page 3009]]
the basis that they do not discharge or discharge only in the event of
a 25-year, 24-hour storm. Second, EPA is proposing to clarify that land
application areas are part of the CAFO and any associated discharge
from these areas is subject to permitting.
While these two proposed changes would help address the ``duty to
apply'' issue, EPA does not believe they would go far enough. Even with
eliminating the 25-year, 24-hour storm exemption from the CAFO
definition, EPA is concerned that operations would still seek to avoid
permitting by claiming they are ``zero dischargers.'' Specifically, EPA
has encountered a further zero discharge conundrum: A facility claims
that by controlling its discharge down to zero--the very level that a
permit would require--it has effectively removed itself from CWA
jurisdiction, because the CWA simply prohibits discharging without a
permit, so a facility that does not discharge does not need a permit.
EPA believes this would be an incorrect reading of the CWA and would
not be a basis for claiming an exemption from permitting (as explained
directly below). Therefore, it is important to clarify in the
regulations that even CAFOs that claim to be zero dischargers must
apply for a permit.
To round out the basis for this proposed revision, EPA is proposing
a regulatory presumption in the regulations that all CAFOs have a
potential to discharge to the waters such that they should be required
to apply for a permit. EPA believes this would be a reasonable
presumption on two grounds. First, the Agency believes this is
reasonable from a factual standpoint, as is fully discussed in section
V of today's preamble.
This factual finding would become even more compelling under
today's proposals to eliminate the 25-year, 24-hour storm exemption
from the CAFO definition and to clarify that discharges from on-site
land application areas, are considered CAFO point source discharges. If
these two proposals were put in place, EPA believes, many fewer
operations would be claiming that they do not discharge.
Second, a presumption that all CAFOs have a potential to discharge
would be reasonable because of the need for clarity on the issues
described above and the historical inability under the current
regulations to effectuate CAFO permitting. Under today's proposal, the
duty would be for each CAFO to apply for a permit, not necessarily to
obtain one. A CAFO that believes it does not have a potential to
discharge could seek to demonstrate as much to the permitting authority
in lieu of submitting a full permit application. (To avoid submitting a
completed permit application, a facility would need to receive a ``no
potential to discharge'' determination from the permit authority prior
to the deadline for applying for a permit. See section VII.F.3 below.)
If the demonstration were successful, the permitting authority would
not issue a permit. Therefore, the duty to apply would be based on a
rebuttable presumption that each facility has a potential to discharge.
Without this rebuttable presumption, EPA believes it could not
effectuate proper permitting of CAFOs because of operations that would
claim to be excluded from the CWA because they do not discharge.
CWA authority for a duty to apply. In pre-proposal discussions,
some stakeholders have questioned EPA's authority under the Clean Water
Act to impose a duty for all CAFOs to apply for a permit. EPA believes
that the CWA does provide such authority, for the following reasons.
Section 301(a) of the CWA says that no person may discharge without
an NPDES permit. The Act is silent, however, on the requirement for
permit applications. It does not explicitly require anyone to apply for
a permit, as some stakeholders have pointed out. But neither does the
Act expressly prohibit EPA from requiring certain facilities to submit
an NPDES permit application or from issuing an NPDES permit without
one. Section 402(a) of the Act says simply that the Agency may issue an
NPDES permit after an opportunity for public hearing.
Indeed, finding that EPA could not require permitting of CAFOs
would upset the legislative scheme and render certain provisions of the
Act meaningless. Section 301(b)(2)(A), which sets BAT requirements for
existing sources and thus is at the heart of the statutory scheme,
states that EPA shall establish BAT standards that ``require the
elimination of discharges of all pollutants if the Administrator finds
* * * that such elimination is technologically and economically
achievable.* * *'' In other words, Congress contemplated that EPA could
set effluent standards going down to zero discharge where appropriate.
Section 306, concerning new sources, contains similar language
indicating that zero discharge may be an appropriate standard for some
new sources. Section 402 puts these standards into effect by requiring
EPA to issue NPDES permits that apply these standards and ensure
compliance with them. Thus, the Act contemplates the issuance of NPDES
permits that require zero discharge. These provisions are underscored
by Section 101(a) of the Act, which sets a national goal of not just
reducing but eliminating the discharge of pollutants to the waters.
This statutory scheme would be negated if facilities were allowed
to avoid permitting by claiming that they already meet a zero discharge
standard that is established in the CAFO regulations and that a permit
would require. Issuing a zero discharge standard would be an act of
futility because it could not be implemented through a permit. Under a
contrary interpretation, a CAFO could repeatedly discharge and yet
avoid permitting by claiming that it does not intend to discharge
further. EPA does not believe that Congress intended to tie the
Agency's hands in this manner. To be sure, in no other area of the
NPDES program are industrial operations allowed to avoid permitting by
claiming that they already meet the limits that a permit would require.
That would be a plainly wrong view of the Act; Section 301(a) states
unequivocally that no person may discharge at all without a permit. The
Act does not contemplate a different system for facilities that are
subject to a zero discharge standard, and it is the unique nature of
the zero discharge standard that makes it appropriate for EPA to
require CAFOs to apply for permits.
EPA also finds authority to require NPDES permit applications from
CAFOs in Section 308 of the Act. Under Section 308, the Administrator
may require point sources to provide information ``whenever required to
carry out the objective of this chapter,'' for purposes, among other
things, of determining whether any person is in violation of effluent
limitations, or to carry out Section 402 and other provisions. Because
EPA proposes a presumption that all CAFOs have a potential to discharge
pollutants, it is important, and within EPA's authority, to collect
information from CAFOs in order to determine if they are in violation
of the Act or otherwise need a permit.
EPA solicits comment on the proposed duty to apply.
e. The Definitions of AFO and CAFO Would Include the Land Areas
Under the Control of the Operator on Which Manure is Applied. In
today's proposal, EPA defines an AFO to include both the animal
production areas of the operation and the land areas, if any, under the
control of the owner or operator, on which manure and associated waste
waters are applied. See proposed Sec. 122.23(a)(1). The definition of a
CAFO is based on the AFO definition and thus would include the
[[Page 3010]]
land application areas as well. Accordingly, a CAFO's permit would
include requirements to control not only discharges from the production
areas but also those discharges from the land application areas. Under
the existing regulations, discharges from a CAFO's land application
areas that result from improper agricultural practices are already
considered to be discharges from the CAFO and therefore, are subject to
the NPDES permitting program. However, EPA believes it would be helpful
to clarify the regulations on this point.
By the term ``production area,'' EPA means the animal confinement
areas, the manure storage areas (e.g. lagoon, shed, pile), the feed
storage areas (e.g., silo, silage bunker), and the waste containment
areas (e.g., berms, diversions). The land application areas include any
land to which a CAFO's manure and wastewater is applied (e.g., crop
fields, fields, pasture) that is under the control of the CAFO owner or
operator, whether through ownership or a lease or contract. The land
application areas do not include areas that are not under the CAFO
owner's or operator's control. For example, where a nearby farm is
owned and operated by someone other than the CAFO owner or operator and
the nearby farm acquires the CAFO's manure or wastewater, by contract
or otherwise, and applies those wastes to its own crop fields, those
crop fields are not part of the CAFO.
The definition of an AFO under the existing regulations refers to a
``lot or facility'' that meets certain conditions, including that
``[c]rops, vegetation[,] forage growth, or post-harvest residues are
not sustained in the normal growing season over any portion of the lot
or facility.'' 40 CFR 122.23(b)(1). In addition, the regulations define
``discharge of a pollutant'' as the addition of any pollutant to waters
of the United States from any point source. 40 CFR 122.2. EPA
interprets the current regulations to include discharges of CAFO-
generated manure and wastewaters from improper land application to
areas under the control of the CAFO as discharges from the CAFO itself.
Otherwise, a CAFO could simply move its wastes outside the area of
confinement, and over apply or otherwise improperly apply those wastes,
which would render the CWA prohibition on unpermitted discharges of
pollutants from CAFOs meaningless. Moreover, the pipes and other
manure-spreading equipment that convey CAFO manure and wastewaters to
land application areas under the control of the CAFO are an integral
part of the CAFO. Under the existing regulations, this equipment should
be considered part of the CAFO, and discharges from this equipment that
reach the waters of the United States as a result of improper land
application should be considered discharges from the CAFO for this
reason as well. In recent litigation brought by citizens against a
dairy farm, a federal court reached a similar conclusion. See CARE v.
Sid Koopman Dairy, et al., 54 F. Supp. 2d 976 (E.D. Wash., 1999).
One of the goals of revising the existing CAFO regulations is to
make the regulations clearer and more understandable to the regulated
community and easier for permitting authorities to implement. EPA
believes that amending the definition of an AFO (and, by extension,
CAFO) to expressly include land application areas will help achieve
this clarity and will enable permitting authorities to both more
effectively implement the proposed effluent guidelines and to more
effectively enforce the CWA's prohibition on discharging without a
permit. It would be clear under this revision that the term ``CAFO''
means the entire facility, including land application fields and other
areas under the CAFO's control to which it applies its manure and
wastewater. By proposing to include land application areas in the
definition of an AFO, and therefore, a CAFO, discharges from those
areas would, by definition, be discharges from a point source--i.e.,
the CAFO. There would not need to be a separate showing of a
discernible, confined, and discrete conveyance such as a ditch.
While the CWA includes CAFOs within the definition of a point
source, it does not elaborate on what the term CAFO means. EPA has
broad discretion to define the term CAFO. Land application areas are
integral parts of many or most CAFO operations. Land application is
typically the end point in the cycle of manure management at CAFOs.
Significant discharges to the waters in the past have been attributed
to the land application of CAFO-generated manure and wastewater. EPA
does not believe that Congress could have intended to exclude the
discharges from a CAFO's land application areas from coverage as
discharges from the CAFO point source. Moreover, defining CAFOs in this
way is consistent with EPA's effluent limitations guidelines for other
industries, which consider on-site waste treatment systems to be part
of the production facilities in that the regulations restrict
discharges from the total operation. Thus, it is reasonable for EPA to
revise the regulations by including land application areas in the
definition of an AFO and CAFO.
While the proposal would include the land application areas as part
of the AFO and CAFO, it would continue to count only those animals that
are confined in the production area when determining whether a facility
is a CAFO.
EPA is also considering today whether it is reasonable to interpret
the agricultural storm water exemption as not applicable to any
discharges from CAFOs. See section VII.D.2. If EPA were to adopt that
interpretation, all discharges from a CAFO's land application areas
would be subject to NPDES requirements, regardless of the rate or
manner in which the manure has been applied to the land.
Please refer to section VII.D for a full discussion of land
application, including EPA's proposal with regard to land application
of CAFO manure by non-CAFOs.
EPA is requesting comment on this approach.
f. What Types of Poultry Operations are CAFOs? EPA is proposing to
revise the CAFO regulations to include all poultry operations with the
potential to discharge, and to establish the threshold for AFOs to be
defined as CAFOs at 50,000 chickens and 27,500 turkeys. See proposed
Sec. 122.23(a)(3)(i)(H) and (I). The proposed revision would remove the
limitation on the type of manure handling or watering system employed
at laying hen and broiler operations and would, therefore, address all
poultry operations equally. This approach would be consistent with
EPA's objective of better addressing the issue of water quality impacts
associated with both storage of manure at the production area and land
application of manure while simultaneously simplifying the regulation.
The following discussion focuses on the revisions to the threshold for
chickens under each of the co-proposed regulatory alternatives.
The existing NPDES CAFO definition is written such that the
regulations only apply to laying hen or broiler operations that have
continuous overflow watering or liquid manure handling systems
(i.e.,``wet'' systems). (40 CFR Part 122, Appendix B.) EPA has
interpreted this language to include poultry operations in which dry
litter is removed from pens and stacked in areas exposed to rainfall,
or piles adjacent to a watercourse. These operations may be considered
to have established a crude liquid manure system (see 1995 NPDES
Permitting Guidance for CAFOs). The existing CAFO regulations also
specify different thresholds for determining which AFOs
[[Page 3011]]
are CAFOs depending on which of these two types of systems the facility
uses (e.g., 100,000 laying hens or broilers if the facility has
continuous overflow watering; 30,000 laying hens or boilers if the
facility has a liquid manure system). When the NPDES CAFO regulations
were promulgated, EPA selected these thresholds because the Agency
believed that most commercial operations used wet systems (38 FR 18001,
1973).
In the 25 years since the CAFO regulations were promulgated, the
poultry industry has changed many of its production practices. Many
changes to the layer production process have been instituted to keep
manure as dry as possible. Consequently, the existing effluent
guidelines do not apply to many broiler and laying hen operations,
despite the fact that chicken production poses risks to surface water
and ground water quality from improper storage of dry manure, and
improper land application. It is EPA's understanding that continuous
overflow watering has been largely discontinued in lieu of more
efficient watering methods (i.e., on demand watering), and that liquid
manure handling systems represent perhaps 15 percent of layer
operations overall, although in the South approximately 40 percent of
operations still have wet manure systems.
Despite the CAFO regulations, nutrients from large poultry
operations continue to contaminate surface water and ground water due
to rainfall coming in contact with dry manure that is stacked in
exposed areas, accidental spills, etc. In addition, land application
remains the primary management method for significant quantities of
poultry litter (including manure generated from facilities using
``dry'' systems). Many poultry operations are located on smaller
parcels of land in comparison to other livestock sectors, oftentimes
owning no significant cropland or pasture, placing increased importance
on the proper management of the potentially large amounts of manure
that they generate. EPA also believes that all types of livestock
operations should be treated equitably under the revised regulation.
As documented in the Environmental Impact Assessment, available in
the rulemaking Record, poultry production in concentrated areas such as
in the Southeast, the Delmarva Peninsula in the mid-Atlantic, and in
key Midwestern States has been shown to cause serious water quality
impairments. For example, the Chesapeake Bay watershed's most serious
water quality problem is caused by the overabundance of nutrients (e.g.
nitrogen and phosphorus). EPA's Chesapeake Bay Program Office estimates
that poultry manure is the largest source of excess nitrogen and
phosphorous reaching the Chesapeake Bay from the lower Eastern Shore of
Maryland and Virginia, sending more than four times as much nitrogen
into the Bay as leaky septic tanks and runoff from developed areas, and
more than three times as much phosphorus as sewage treatment plants.
These discharges of nutrients result from an over-abundance of manure
relative to land available for application, as well as the management
practices required to deal with the excess manure. The State of
Maryland has identified instances where piles of chicken litter have
been stored near ditches and creeks that feed tributaries of the Bay.
Soil data also suggest that in some Maryland counties with poultry
production the soils already contain 90 percent or more of the
phosphorus needed by crops. The State of Maryland has surveyed the
Pocomoke, Transquaking, and Manokin river systems and has concluded
that 70-87 percent of all nutrients reaching those waters came from
farms (though not all from AFOs). Based on EPA data, phosphorus
concentrations in the Pocomoke Sound have increased more than 25
percent since 1985, suffocating sea grasses that serve as vital habitat
for fish and crabs. In 1997, poultry operations were found to be a
contributing cause of Pfiesteria outbreaks in the Pokomoke River and
Kings Creek (both in Maryland) and in the Chesapeake Bay, in which tens
of thousands of fish were killed. Other examples of impacts from
poultry manure are discussed in section V of today's proposal.
Dry manure handling is the predominant practice in the broiler and
other meat type chicken industries. Birds are housed on dirt or
concrete floors that have been covered with a bedding material such as
wood shavings. Manure becomes mixed with this bedding to form a litter,
which is removed from the house in two ways. After each flock of birds
is removed from the house a portion of litter, referred to as cake, is
removed. Cake is litter that has become clumped, usually below the
watering system, although it can also be formed by a concentration of
manure. In addition, the operator also removes all of the litter from
the house periodically. The frequency of the ``whole house'' clean-out
varies but commonly occurs once each year, unless a breach of
biosecurity is suspected.
Broiler operations generally house between five and six flocks of
birds each year, which means there are between five or six ``cake-
outs'' each year. Roasters have fewer flocks, and small fryers have
more flocks, but the volume of ``cake-out'' removed in a year is
comparable. ``Cake-outs'' will sometimes occur during periods when it
is not possible to land apply the litter (e.g. in the middle of the
growing season or during the winter when field conditions may not be
conducive to land application). Consequently, it is usually necessary
to store the dry litter after removal until it can be land applied.
Depending on the time of year it occurs, ``whole house'' clean-out
may also require the operator to store the dry manure until it can be
land applied. If the manure is stored in open stockpiles over long
periods of time, usually greater than a few weeks, runoff from the
stockpile may contribute pollutants to surface water and/or ground
water that is hydrologically connected to surface water.
The majority of egg laying operations use dry manure handling,
although there are operations with liquid manure handling systems.
Laying hens are kept in cages and manure drops below the cages in both
dry and liquid manure handling systems. Most of the dry manure
operations are constructed as high rise houses where the birds are kept
on the second floor and the manure drops to the first floor, which is
sometimes referred to as the pit. Ventilation flows through the house
from the roof down over the birds and into the pit over the manure
before it is forced out through the sides of the house. The ventilation
dries the manure as it piles up into cones. Manure can usually be
stored in high rise houses for up to a year before requiring removal.
Problems can occur with dry manure storage in a high rise house
when drinking water systems are not properly designed or maintained.
For example, improper design or maintenance of the water system can
result in excess water spilling into the pit below, which raises the
moisture content of the manure, resulting in the potential for spills
and releases of manure from the building.
Concerns with inadequate storage or improper design and maintenance
contribute to concerns over dry manure systems for laying hens. As with
broiler operations, open stockpiles of litter stored over long periods
of time (e.g., greater than a few weeks) may contribute to pollutant
discharge from contaminated runoff and leachate leaving the stockpile.
Laying hens operations may also use a liquid manure handling system.
The system is similar to the dry manure system except that
[[Page 3012]]
the manure drops below the cages into a channel or shallow pit and
water is used to flush this manure to a lagoon.
The existing regulation already applies to laying hen and broiler
operations with 100,000 birds when a continuous flow watering system is
used, and to 30,000 birds when a liquid manure handling system is used.
In revising the threshold for poultry operations, EPA evaluated several
methods for equating poultry to the existing definition of an animal
unit. EPA considered laying hens, pullets, broilers, and roasters
separately to reflect the differences in size, age, production, feeding
practices, housing, waste management, manure generation, and nutrient
content of the manure. Manure generation and pollutant parameters
considered include: nitrogen, phosphorus, BOD5, volatile solids, and
COD. Analysis of these parameters consistently results in a threshold
of 70,000 to 140,000 birds as being equivalent to 1,000 animal units.
EPA also considered a liveweight basis for defining poultry. The
liveweight definition of animal unit as used by USDA defines 455,000
broilers and pullets and 250,000 layers as being representative of
1,000 animal units. EPA data indicates that using a liveweight basis at
1,000 AU would exclude virtually all broiler operations from the
regulation.
Consultations with industry indicated EPA should evaluate the
different sizes (ages) and purposes (eggs versus meat) of chickens
separately. However, when evaluating broilers, roasters, and other
meat-type chickens, EPA concluded that a given number of birds capacity
represented the same net annual production of litter and nutrients. For
example, a farm producing primarily broilers would raise birds for 6-8
weeks with a final weight of 3 to 5 pounds, a farm producing roasters
would raise birds for 9-11 weeks with a final weight of 6 to 8 pounds,
whereas a farm producing game hens may only keep birds for 4-6 weeks
and at a final weight of less than 2 pounds. The housing, production
practices, waste management, and manure nutrients and process wastes
generated in each case is essentially the same. Layers are typically
fed less than broilers of equivalent size, and are generally maintained
as a smaller chicken. However, a laying hen is likely to be kept for a
year of egg production. The layer is then sold or molted for several
weeks, followed by a second period of egg production. Pullets are
housed until laying age of approximately 18 to 22 weeks. In all cases
manure nutrients and litter generated results in a threshold of 80,000
to 130,000 birds as being the equivalent of 1,000 animal units.
Today's proposed NPDES and effluent guidelines requirements for
poultry eliminate the distinction between how manure is handled and the
type of watering system that is used. EPA is proposing this change
because it believes there is a need to control poultry operations
regardless of the manure handling or watering system. EPA believes that
improper storage as well as land application rates which exceed
agricultural use have contributed to water quality problems, especially
in areas with large concentrations of poultry production. Inclusion of
poultry operations in the proposed NPDES regulation is intended to be
consistent with the proposed effluent guidelines regulation, discussed
in section VIII of today's preamble. EPA is proposing that 100,000
laying hens or broilers be considered the equivalent of 1,000 animal
units.
Consequently EPA proposes to establish the threshold under the two-
tier alternative structure that defines which operations are CAFOs at
500 animal units as equivalent to 50,000 birds. Facilities that are
subject to designation are those with fewer than 50,000 birds. This
threshold would address approximately 10 percent of all chicken AFOs
nationally and more than 70 percent of all manure generated by
chickens. On a sector specific basis, this threshold would address
approximately 28 percent of all broiler operations (including all meat-
type chickens) while addressing more than 70 percent of manure
generated by broiler operations. For layers (including pullets) the
threshold would address less than 5 percent of layer operations while
addressing nearly 80 percent of manure generated by layer operations.
EPA believes this threshold is consistent with the threshold
established for the other livestock sectors.
Under this two-tier structure, today's proposed changes exclude
poultry operations with liquid manure handling systems if they have
between 30,000 and 49,999 birds. EPA estimates this to be few if any
operations nationally and believes these are relatively small
operations. EPA does not believe these few operations pose a
significant threat to water quality even in aggregation. EPA also notes
that the trend in laying hen operations (where liquid systems may
occur) has been to build new operations to house large numbers of
animals (e.g., usually in excess of 100,000 birds per house), which
frequently employ dry manure handling systems. Given the limited number
of existing operations with liquid manure handling systems and the
continuing trend toward larger operations, EPA believes the proposed
uniform threshold of 50,000 birds is appropriate.
Under the proposed alternative three-tier structure, any operation
with more than 100,000 chickens is automatically defined as a CAFO.
This upper tier reflects 4 percent of all chicken operations.
Additionally those poultry operations with 30,000 to 100,000 chickens
are defined as CAFOs if they meet the unacceptable conditions presented
in section VII.C. This middle tier would address an additional 10
percent of poultry facilities. By sector this middle tier would
potentially cover an additional 45 percent of broiler manure and 22
percent layer manure. In aggregate this scenario would address 14
percent of chicken operations and 86 percent of manure. See VI.A.2 for
the additional information regarding scope of the two proposed
regulatory alternatives.
EPA acknowledges that this threshold pulls in a substantial number
of chicken operations under the definition of a CAFO. Geographic
regions with high density of poultry production have experienced water
quality problems related to an overabundance of nutrients, to which the
poultry industry has contributed. For example northwestern Arkansas and
the Delmarva peninsula in the Mid-Atlantic tend to have smaller poultry
farms as compared to other regions. The chicken and turkey sectors also
have higher percentages of operations with insufficient or no land
under the control of the AFO on which to apply manure. Thus EPA
believes this threshold is appropriate to adequately control the
potential for discharges from poultry CAFOs.
g. How Would Immature Animals in the Swine and Dairy Sectors be
Counted? EPA is proposing to include immature swine and heifer
operations under the CAFO definition. See proposed
Sec. 122.23(a)(3)(i)(C) and (E). In the proposed two-tier structure,
EPA would establish the 500 AU threshold equivalent for defining which
operations are CAFOs as operations with 5000 or more swine weighing 55
pounds or less, and those with fewer than 5000 swine under 55 pounds
are AFOs which may be designated as CAFOs. Immature dairy cows, or
heifers, would be counted equivalent to beef cattle; that is, the 500
AU threshold equivalent for defining CAFOs would be operations with 500
or more heifers, and those with fewer than 500 could be designated as
CAFOs.
In the proposed three-tier structure, the 300 AU and 1,000 AU
equivalents,
[[Page 3013]]
respectively for each animal type would be: 3,000 head and 10,000 head
for immature swine; and 300 head and 1,000 head for heifers.
Only swine over 55 pounds and mature dairy cows are specifically
included in the current definition (although manure and wastewater
generated by immature animals confined at the same operation with
mature animals are subject to the existing requirements). Immature
animals were not a concern in the past because they were generally part
of operations that included mature animals and, therefore, their manure
was included in the permit requirements of the CAFO. However, in recent
years, these livestock industries have become increasingly specialized
with the emergence of increasing numbers of large stand-alone
nurseries. Further, manure from immature animals tends to have higher
concentrations of pathogens and hormones and thus poses greater risks
to the environment and human health.
Since the 1970s, the animal feeding industry has become more
specialized, especially at larger operations. When the CAFO regulations
were issued, it was typical to house swine from birth to slaughter
together at the same operation known as a farrow to finish operation.
Although more than half of swine production continues to occur at
farrow-to-finish operations, today it is common for swine to be raised
in phased production systems. As described in section VI, specialized
operations that only house sows and piglets until weaned represent the
first phase, called farrowing. The weaned piglets are transferred to a
nursery, either at a separate building or at a location remote from the
farrowing operation for biosecurity concerns. The nursery houses the
piglets until they reach about 55 to 60 pounds, at which time they are
transferred to another site, the grow-finish facility.
The proposed thresholds for swine are established on the basis of
the average phosphorus excreted from immature swine in comparison to
the average phosphorus excreted from swine over 55 pounds. A similar
threshold would be obtained when evaluating live-weight manure
generation, nitrogen, COD and volatile solids (VS). See the Technical
Development Document for more details.
Dairies often remove immature heifers to a separate location until
they reach maturity. These off-site operations may confine the heifers
in a manner that is very similar to a beef feedlot or the heifers may
be placed on pasture. The existing CAFO definition does not address
operations that only confine immature heifers. EPA acknowledges that
dairies may keep heifers and calves and a few bulls on site. EPA data
indicates some of these animals are in confinement, some are pastured,
and some moved back and forth between confinement, open lots, and
pasture. The current CAFO definition considers only the mature milking
cows. This has raised some concerns that many dairies with significant
numbers of immature animals could be excluded from the regulatory
definition even though they may generate as much manure as a dairy with
a milking herd large enough to be a CAFO. The proportion of immature
animals maintained at dairies can vary significantly with a high being
a one to one ratio. Industry-wide there are 0.6 immature animals for
every milking cow.
EPA considered options for dairies that would take into account all
animals maintained in confinement, including calves, bulls and heifers
when determining whether a dairy is a CAFO or not. EPA examined two
approaches for this option, one that would count all animals equally
and another based on the proportion of heifers, calves, and bulls
likely to be present at the dairy. EPA is not proposing to adopt either
of these options.
The milking herd is usually a constant at a dairy, but the
proportion of immature animals can vary substantially among dairies and
even at a given dairy over time. Some operations maintain their
immature animals on-site, but keep them on pasture most of the time.
Some operations keep immature animals on-site, and maintain them in
confinement all or most of the time. Some operations may also have one
or two bulls on-site, which can also be kept either in confinement or
on pasture, while many keep none on-site. Some operations do not keep
their immature animals on-site at all, instead they place them offsite,
usually in a stand-alone heifer operation. Because of the variety of
practices at dairies, it becomes very difficult to estimate how many
operations have immature animals on-site in confinement. EPA believes
that basing the applicability on the numbers of immature animals and
bulls would make implementing the regulation more difficult for the
permit authority and the CAFO operator. However, EPA requests comment
on this as a possible approach.
EPA also requests comments on using only mature milking cows as the
means for determining applicability of the size thresholds. Under the
two-tier structure, EPA's proposed requirements for dairies would apply
to 3 percent of the dairies nationally and will control 37 percent of
the CAFO manure generated by all dairies nationally. This is
proportionally lower than other livestock sectors, largely due to the
dominance of very small farms in the dairy industry. There are similar
trends in the dairy industry as in the other livestock sectors,
indicating that the number of large operations is increasing while the
number of small farms continues to decline. Under the three-tier
structure, EPA's proposed requirements would apply to 6 percent of the
dairies nationally, and will control 43 percent of all manure generated
at dairy CAFOs annually. See Section VI.A.1.
Inclusion in the proposed NPDES definition of immature swine and
heifers is intended to be consistent with the proposed effluent
guidelines regulation, described in section VIII of today's preamble.
P. What Other Animal Sectors Does Today's Proposal Affect? EPA is
proposing to lower the threshold for defining which AFOs are CAFOs to
the equivalent of 500 AU in the horse, sheep, lamb and duck sectors
under the two-tier structure. See proposed Sec. 122.23(a)(3)(i). This
action is being taken to be consistent with the NPDES proposed
revisions for beef, dairy, swine and poultry. Under the three-tier
structure, the existing thresholds would remain as they are under the
existing regulation.
The animal types covered by the NPDES program are defined in the
current regulation (Part 122 Appendix B). The beef, dairy, swine,
poultry and veal sectors are being addressed by both today's effluent
guidelines proposal and today's NPDES proposal. However, today's
proposal would not revise the effluent guidelines for any animal sector
other than beef, dairy, swine, poultry and veal. Therefore, under
today's proposal, any facility in the horse, sheep, lamb and duck
sectors with 500 to 1,000 AU that is defined as a CAFO, and any
facility in any sector below 500 AU that is designated as a CAFO, will
not be subject to the effluent guidelines, but will have NPDES permits
developed on a best professional judgment (BPJ) basis.
Table 7-6 identifies those meeting the proposed 500 AU threshold in
the two-tier structure. Table 7-7 identifies the numbers of animals
meeting the 300 AU, 300 AU to 1,000 AU, and the 1,000 AU thresholds in
the three-tier structure.
A facility confining any other animal type that is not explicitly
mentioned in the NPDES and effluent guidelines regulations is still
subject to NPDES permitting requirements if it meets the definition of
an AFO and if the permit
[[Page 3014]]
authority designates it as a CAFO on the basis that it is a significant
contributor of pollution to waters of the U.S. Refer to VII.C.4 in
today's proposal for a discussion of designation for AFOs.
The economic analysis for the NPDES rule does not cover animal
types other than beef, dairy, swine and poultry. EPA chose to analyze
those animal types that produce the greatest amount of manure and
wastewater in the aggregate while in confinement. EPA believes that
most horses, sheep, and lambs operations are not confined and therefore
will not be subject to permitting, thus, the Agency expects the impacts
in these sectors to be minimal. However, most duck operations probably
are confined. EPA requests comments on the effect of this proposal on
the horse, sheep, lamb and duck sectors.
i. How Does EPA Propose to Control Manure at Operations that Cease
to be CAFOs? EPA is proposing to require operators of permitted CAFOs
that cease operations to retain NPDES permits until the facilities are
properly closed, i.e., no longer have the potential to discharge. See
Sec. 122.23(i)(3). Similarly, today's proposal would clarify that, if a
facility ceases to be an active CAFO (e.g., it decreases the number of
animals below the threshold that defined it as a CAFO, or ceases to
operate), the CAFO must remain permitted until all wastes at the
facility that were generated while the facility was a CAFO no longer
have the potential to reach waters of the United States.
These requirements mean that if a permit is about to expire and the
manure storage facility has not yet been properly closed, the facility
would be required to apply for a permit renewal because the facility
has the potential to discharge to waters of the U.S. until it is
properly closed. Proper facility closure includes removal of water from
lagoons and stockpiles, and proper disposal of wastes, which may
include land application of manure and wastewater in accordance with
NPDES permit requirements, to prevent or minimize discharge of
pollutants to receiving waters.
The existing regulations do not explicitly address whether a permit
should be allowed to expire when an owner or operator ceases
operations. However, the public has expressed concerns about facilities
that go out of business leaving behind lagoons, stockpiles and other
contaminants unattended and unmanaged. Moreover, there are a number of
documented instances of spills and breaches at CAFOs that have ceased
operations, leaving behind environmental problems that became a public
burden to resolve (see, for example, report of the North Carolina DENR,
1999).
EPA considered five options for NPDES permit requirements to ensure
that CAFO operators provide assurances for proper closure of their
facilities (especially manure management systems such as lagoons) in
the event of financial failure or other business curtailment. EPA
examined the costs to the industry and the complexity of administering
such a program for all options. The analyses of these options are
detailed in the EPA NPDES CAFO Rulemaking Support Document, September
26, 2000.
Closure Option 1 would require a closure plan. The CAFO operator
would be required to have a written closure plan detailing how the
facility plans to dispose of animal waste from manure management
facilities. The plan would be submitted with the permit application and
be approved with the permit application. The plan would identify the
steps necessary to perform final closure of the facility, including at
least:
A description of how each major component of the manure
management facility (e.g., lagoons, settlement basins, storage sheds)
will be closed;
An estimate of the maximum inventory of animal waste ever
on-site, accompanied with a description of how the waste will be
removed, transported, land applied or otherwise disposed; and
A closure schedule for each component of the facility
along with a description of other activities necessary during closure
(e.g., control run-off/run-on, ground water monitoring if necessary).
EPA also investigated several options that would provide financial
assurances in the event the CAFO went out of business, such as
contribution to a sinking fund, commercial insurance, surety bond, and
other common commercial mechanisms. Under Closure Option 2, permittees
would have to contribute to a sinking fund to cover closure costs of
facilities which abandon their manure management systems. The
contribution could be on a per-head basis, and could be levied on the
permitting cycle (every five years), or annually. The sinking fund
would be available to cleanup any abandoned facility (including those
which are not permitted). Data on lagoon closures in North Carolina
(Harrison, 1999) indicate that the average cost of lagoon closure for
which data are available is approximately $42,000. Assuming a levy of
$0.10 per animal, the sinking fund would cover the cost of
approximately 50 abandonments nationally per year, not accounting for
any administrative costs associated with operating the funding program.
Closure Option 3 would require permittees to provide financial
assurance by one of several generally accepted mechanisms. Financial
assurance options could include the following common mechanisms: a)
Commercial insurance; (b) Financial test; (c) Guarantee; (d)
Certificate of Deposit or designated savings account; (e) Letter of
credit; or (f) Surety bond. The actual cost to the permittee would
depend upon which financial assurance option was available and
implemented. The financial test would likely be the least expensive for
some operations, entailing documentation that the net worth of the CAFO
operator is sufficient such that it is unlikely that the facility will
be abandoned for financial reasons. The guarantee would also be
inexpensive, consisting of a legal guarantee from a parent corporation
or other party (integrator) that has sufficient levels of net worth.
The surety bond would likely be the most expensive, typically requiring
an annual premium of 0.5 to 3.0 percent of the value of the bond; this
mechanism would likely be a last resort for facilities that could not
meet the requirement of the other mechanisms.
Option 4 is a combination of Options 2 and 3. Permittees would have
to provide financial assurance by one of several generally accepted
mechanisms, or by participating in a sinking fund. CAFO operators could
meet closure requirements through the most economical means available
for their operation.
Option 5, the preferred option in today's proposal, simply requires
CAFOs to maintain NPDES permit coverage until proper closure. Under
this option, facilities would be required to maintain their NPDES
permits, even upon curtailment of the animal feeding operation, for as
long as the facility has the potential to discharge. The costs for this
option would be those costs associated with maintaining a permit.
Today, EPA is proposing to require NPDES permits to include a
condition that imposes a duty to reapply for a permit unless an owner
or operator has closed the facility such that there is no potential for
discharges. The NPDES program offers legal and financial sanctions that
are sufficient, in EPA's view, to ensure that operators comply with
this requirement. EPA believes that this option would accomplish its
objectives and would be generally easy and effective to implement.
However, there are concerns that it would not be effective for
abandoned facilities because, unlike some of the other
[[Page 3015]]
options, no financial assurance mechanism would be in place. EPA is
requesting comment on the practical means of addressing the problem of
unmanaged waste from closed or abandoned CAFOs, and what authorities
EPA could use under the CWA or other statutes to address this problem.
See Section VII.E.5.c of today's proposal, which further discusses
the requirement for permit authorities to include facility closure in
NPDES permit special conditions.
While EPA is today proposing to only require ongoing permit
coverage of the former CAFO, permit authorities are encouraged to
consider including other conditions such as those discussed above.
j. Applicability of the Regulations to Operations That Have a
Direct Hydrologic Connection to Ground Water. Because of its relevance
to today's proposal, EPA is restating that the Agency interprets the
Clean Water Act to apply to discharges of pollutants from a point
source via ground water that has a direct hydrologic connection to
surface water. See proposed Sec. 122.23(e). Specifically, the Agency is
proposing that all CAFOs, including those that discharge or have the
potential to discharge CAFO wastes to navigable waters via ground water
with a direct hydrologic connection must apply for an NPDES permit. In
addition, the proposed effluent guidelines will require some CAFOs to
achieve zero discharge from their production areas including via ground
water which has a direct hydrologic connection to surface water.
Further, for CAFOs not subject to such an effluent guideline, permit
writers would in some circumstances be required to establish special
conditions to address such discharges. In all cases, a permittee would
have the opportunity to provide a hydrologist's report to rebut the
presumption that there is likely to be a discharge from the production
area to surface waters via ground water with a direct hydrologic
connection.
For CAFOs that would be subject to an effluent guideline that
includes requirements for zero discharge from the production area to
surface water via ground water (all existing and new beef and dairy
operations, and new swine and poultry operations, see proposed
Sec. 412.33(a), 412.35(a), and 412.45(a)), the proposed regulations
would presume that there is a direct hydrologic connection to surface
water. The permittee would be required to either achieve zero discharge
from the production area via ground water and perform the required
ground water monitoring or provide a hydrologist's statement that there
is no direct connection of ground water to surface water at the
facility. See 40 CFR 412.33(a)(3), 412.35(a)(3), and 412.45(a)(3).
For CAFOs that would be subject to the proposed effluent guideline
at 412.43 (existing swine, poultry and veal facilities) which does not
include ground water requirements, if the permit writer determines that
the facility is in an area with topographical characteristics that
indicate the presence of ground water that is likely to have a direct
hydrologic connection to surface water and if the permit writer
determines that pollutants may be discharged at a level which may cause
or contribute to an excursion above any State water quality standard,
the permit writer would be required to include special conditions to
address potential discharges via ground water. EPA is proposing that
the permittee must either comply with those conditions or provide a
hydrologist's statement that the facility does not have a direct
hydrologic connection to surface water. 40 CFR 122.23(j)(6) and (k)(5).
If a CAFO is not subject to the Part 412 Subparts C or D effluent
guideline (e.g., because it has been designated as a CAFO and is below
the threshold for applicability of those subparts; or is a CAFO in a
sector other than beef, dairy, swine, poultry or veal and thus is
subject to subparts A or B), then the permit writer would be required
to decide on a case-by-case basis whether effluent limitations
(technology-based and water quality-based, as necessary) should be
established to address potential discharges to surface water via
hydrologically connected ground water. Again, the permittee could avoid
or satisfy such requirements by providing a hydrologist's statement
that there is no direct hydrologic connection 40 CFR 122.23(k)(5).
Legal Basis. The Clean Water Act does not directly answer the
question of whether a discharge to surface waters via hydrologically
connected ground water is unlawful. However, given the broad
construction of the terms of the CWA by the federal courts and the
goals and purposes of the Act, the Agency believes that while Congress
has not spoken directly to the issue, the Act is best interpreted to
cover such discharges. The statutory terms certainly do not prohibit
the Agency's determination that a discharge to surface waters via
hydrologically-connected ground waters can be governed by the Act,
while the terms do clearly indicate Congress' broad concern for the
integrity of the Nation's waters. Section 301(a) of the CWA provides
that ``the discharge of any pollutant [from a point source] by any
person shall be unlawful'' without an NPDES permit. The term
``discharge of a pollutant'' is defined as ``any addition of a
pollutant to navigable waters from any point source.'' 33 U.S.C.
Sec. 1362(12). In turn, ``navigable waters'' are defined as ``the
waters of the United States, including the territorial seas.'' 33
U.S.C. Sec. 1362(7). None of these terms specifically includes or
excludes regulation of a discharge to surface waters via hydrologically
connected ground waters. Thus, EPA interprets the relevant terms and
definitions in the Clean Water Act to subject the addition of manure to
nearby surface waters from a CAFO via hydrologically connected ground
waters to regulation.
Some sections of the CWA do directly apply to ground water. Section
102 of the CWA, for example, requires the Administrator to ``develop
comprehensive programs for preventing, reducing, or eliminating the
pollution of the navigable waters and ground waters and improving the
sanitary conditions of surface and underground waters.'' 33 U.S.C.
Sec. 1252. Such references, however, are not significant to the
analysis of whether Congress has spoken directly on the issue of
regulating discharges via ground water which directly affect surface
waters. Specific references to ground water in other sections of the
Act may shed light on the question of whether Congress intended the
NPDES program to regulate ground water quality. That question, however,
is not the same question as whether Congress intended to protect
surface water from discharges which occur via ground water. Thus, the
language of the CWA is ambiguous with respect to the specific question,
but does not bar such regulation. Moreover, the Supreme Court has
recognized Congress' intent to protect aquatic ecosystems through the
broad federal authority to control pollution embodied in the Federal
Water Pollution Control Act Amendments of 1972. Section 101 of the Act
clearly states the purpose of the Act ``to restore and maintain the
chemical, physical, and biological integrity of the Nations' waters.''
33 U.S.C. Sec. 1251(a)(1). The Supreme Court found that ``[t]his
objective incorporated a broad, systemic view of the goal of
maintaining and improving water quality: as the House Report on the
legislation put it, ``the word ``integrity'' * * * refers to a
condition in which the natural structure and function of aquatic
ecosystems [are] maintained.'' United States v. Riverside Bayview
Homes, 474 U.S. 121, 132 (1985). An interpretation of the CWA which
excludes regulation
[[Page 3016]]
of point source discharges to the waters of the U.S. which occur via
ground water would, therefore, be inconsistent with the overall
Congressional goals expressed in the statute.
Federal courts have construed the terms of the CWA broadly (Sierra
Club v. Colorado Refining Co., 838 F. Supp. 1428, 1431 (D.Colo. 1993)
(citing Quivera Mining Co. v. EPA, 765 F.2d 126, 129 (10th Cir. 1985)),
but have found the language ambiguous with regard to ground water and
generally examine the legislative history of the Act. See e.g., Exxon
v. Train, 554 F.2d 1310, 1326-1329 (reviewing legislative history).
However, a review of the legislative history also is inconclusive.
Thus, courts addressing the issue have reached conflicting conclusions.
Since the language of the CWA itself does not directly address the
issue of discharges to ground water which affect surface water, it is
proper to examine the statute's legislative history. Faced with the
problem of defining the bounds of its regulatory authority, ``an agency
may appropriately look to the legislative history and underlying
policies of its statutory grants of authority.'' Riverside Bayview
Homes, 474 U.S. at 132. However, the legislative history also does not
address this specific issue. See Colorado Refining Co., 838 F. Supp. at
1434 n.4 (noting legislative history inconclusive).
In the House, Representative Les Aspin proposed an amendment with
explicit ground water protections by adding to the definition of
``discharge of a pollutant'' the phrase ``any pollutant to ground
waters from any point source.'' Legislative History of the Water
Pollution Control Act Amendments of 1972, 93d Cong., 1st. Sess. at 589
(1972) (hereinafter ``Legislative History''). While the Aspin amendment
was defeated, that rejection does not necessarily signal an explicit
decision by Congress to exclude even ground water per se from the scope
of the permit program. Commentators have suggested that provisions in
the amendment which would have deleted exemptions for oil and gas well
injections were the more likely cause of the amendment's defeat. Mary
Christina Wood, Regulating Discharges into Groundwater: The Crucial
Link in Pollution Control Under the Clean Water Act, 12 Harv. Envtl. L.
Rev. 569, 614 (1988); see also Legislative History at 590-597 (during
debate on the amendment, members in support and members in opposition
focused on the repeal of the exemption for oil and gas injection
wells).
At the least, there is no evidence that in rejecting the explicit
extension of the NPDES program to all ground water Congress intended to
create a ground water loophole through which the discharges of
pollutants could flow, unregulated, to surface water. Instead, Congress
expressed an understanding of the hydrologic cycle and an intent to
place liability on those responsible for discharges which entered the
``navigable waters.'' The Senate Report stated that ``[w]ater moves in
hydrologic cycles and it is essential that discharge of pollutants be
controlled at the source.'' Legislative History at 1495. The Agency has
determined that discharges via hydrologically connected ground water
impact surface waters and, therefore, should be controlled at the
source.
Most of the courts which have addressed the question of whether the
CWA subjects discharges to surface waters via hydrologically connected
ground waters to regulation have found the statute ambiguous on this
specific question. They have then looked to the legislative history for
guidance. McClellan Ecological Seepage Situation v. Weinberger, 707 F.
Supp. 1182, 1194 (E.D. Cal. 1988), vacated (on other grounds), 47 F.3d
325 (9th Cir. 1995), cert. denied, 116 S.Ct. 51 (1995); Kelley v.
United States, 618 F.Supp. 1103, 1105-06 (D.C.Mich. 1985). Even those
courts which have not found jurisdiction have acknowledged that it is a
close question. Village of Oconomowoc Lake v. Dayton Hudson Corp., 24
F.3d 962, 966 (7th Cir. 1994), cert. denied, 513 U.S. 930 (1994). As
one court noted, ``the inclusion of groundwater with a hydrological
connection to surface waters has troubled courts and generated a
torrent of conflicting commentary.'' Potter v. ASARCO, Civ. No.
S:56CV555, slip op. at 19 (D.Neb. Mar. 3, 1998). The fact that courts
have reached differing conclusions when examining whether the CWA
regulates such discharges is itself evidence that the statute is
ambiguous.
EPA does not argue that the CWA directly regulates ground water
quality. In the Agency's view, however, the CWA does regulate
discharges to surface water which occur via ground water because of a
direct hydrologic connection between the contaminated ground water and
nearby surface water. EPA repeatedly has taken the position that the
CWA can regulate discharges to surface water via ground water that is
hydrologically connected to surface waters.
For example, in issuing the general NPDES permit for concentrated
animal feeding operations (``CAFOs'') in Idaho, EPA stated:
``EPA agrees that groundwater contamination is a concern around
CAFO facilities. However, the Clean Water Act does not give EPA the
authority to regulate groundwater quality through NPDES permits.
``The only situation in which groundwater may be affected by the
NPDES program is when a discharge of pollutants to surface waters can
be proven to be via groundwater.'' 62 FR 20177, 20178 (April 25, 1997).
In response to a comment that the CAFO general permit should not cover
ground water, the Agency stated:
``EPA agrees that the Clean Water Act does not give EPA the
authority to regulate groundwater quality through NPDES permits.
However, the permit requirements * * * are not intended to regulate
groundwater. Rather, they are intended to protect surface waters which
are contaminated via a groundwater (subsurface) connection.'' Id.
EPA has made consistent statements on at least five other
occasions. In the Preamble to the final NPDES Permit Application
Regulations for Storm Water Discharges, the Agency stated: ``this
rulemaking only addresses discharges to waters of the United States,
consequently discharges to ground waters are not covered by this
rulemaking (unless there is a hydrological connection between the
ground water and a nearby surface water body.'') 55 FR 47990, 47997
(Nov. 16, 1990)(emphasis added)). See also 60 FR 44489, 44493 (August
28, 1995) (in promulgating proposed draft CAFO permit, EPA stated:
``[D]ischarges that enter surface waters indirectly through groundwater
are prohibited''); EPA, ``Guide Manual On NPDES Regulations For
Concentrated Animal Feeding Operations'' at 3 (December 1995) (``Many
discharges of pollutants from a point source to surface water through
groundwater (that constitutes a direct hydrologic connection) also may
be a point source discharge to waters of the United States.'').
In promulgating regulations authorizing the development of water
quality standards under the CWA by Indian Tribes for their
Reservations, EPA stated:
Notwithstanding the strong language in the legislative history of
the Clean Water Act to the effect that the Act does not grant EPA
authority to regulate pollution of ground waters, EPA and most courts
addressing the issue have recognized that * * * the Act requires NPDES
permits for discharges to groundwater where there is a direct
hydrological connection between groundwater and surface waters. In
[[Page 3017]]
these situations, the affected ground waters are not considered
``waters of the United States'' but discharges to them are regulated
because such discharges are effectively discharges to the directly
connected surface waters. Amendments to the Water Quality Standards
Regulations that Pertain to Standards on Indian Reservations, Final
Rule, 56 FR 64876, 64892 (Dec. 12, 1991)(emphasis added).
While some courts have not been persuaded that the Agency's
pronouncements on the regulation of discharges to surface water via
ground water represent a consistent Agency position, others have found
EPA's position to be clear. The Hecla Mining court noted that ``The
court in Oconomowoc Lake dismissed the EPA statements as a collateral
reference to a problem. It appears to this court, however, that the
preamble explains EPA's policy to require NPDES permits for discharges
which may enter surface water via groundwater, as well as those that
enter directly.'' Washington Wilderness Coalition v. Hecla Mining Co.,
870 F. Supp. 983, 990-91 (E.D. Wash. 1994), dismissed on other grounds,
(lack of standing) per unpublished decision (E.D. Wash. May 7, 1997)
(citing Preamble, NPDES Permit Regulations for Storm Water Discharges,
55 FR 47990, 47997 (Nov. 16, 1990)).
As a legal and factual matter, EPA has made a determination that,
in general, collected or channeled pollutants conveyed to surface
waters via ground water can constitute a discharge subject to the Clean
Water Act. The determination of whether a particular discharge to
surface waters via ground water which has a direct hydrologic
connection is a discharge which is prohibited without an NPDES permit
is a factual inquiry, like all point source determinations. The time
and distance by which a point source discharge is connected to surface
waters via hydrologically connected surface waters will be affected by
many site specific factors, such as geology, flow, and slope.
Therefore, EPA is not proposing to establish any specific criteria
beyond confining the scope of the regulation to discharges to surface
water via a ``direct'' hydrologic connection. Thus, EPA is proposing to
make clear that a general hydrologic connection between all waters is
not sufficient to subject the owner or operator of a point source to
liability under the Clean Water Act. Instead, consistent with the case
law, there must be information indicating that there is a ``direct''
hydrologic connection to the surface water at issue. Hecla Mining, 870
F.Supp. at 990 (``Plaintiffs must still demonstrate that pollutants
from a point source affect surface waters of the United States. It is
not sufficient to allege groundwater pollution, and then to assert a
general hydrological connection between all waters. Rather, pollutants
must be traced from their source to surface waters, in order to come
within the purview of the CWA.'')
The reasonableness of the Agency's interpretation is supported by
the fact that the majority of courts have determined that CWA
jurisdiction may extend to surface water discharges via hydrologic
connections.\1\ As the court in Potter v. ASARCO, Inc. declared, ``in
light of judicial precedent, Congress'' remedial purpose, the absence
of any specific legislative intent pertaining to hydrologically
connected ground water and the informal pronouncements of EPA, any
pollutants that enter navigable waters, whether directly or indirectly
through a specific hydrological connection, are subject to regulation
by the CWA.'' Slip op. at 26.
---------------------------------------------------------------------------
\1\ See e.g., Williams PipeLine Co. v. Bayer Corp., 964 F.Supp.
1300, 1319-20 (S.D.Iowa 1997) (``Because the CWA's goal is to
protect the quality of surface waters, the NPDES permit system
regulates any pollutants that enter such waters either directly or
through groundwater.''); Washington Wilderness Coalition v. Hecla
Mining Co., 870 F. Supp. 983, 989-90 (E.D. Wash. 1994), dismissed on
other grounds, (lack of standing) per unpublished decision (E.D.
Wash. May 7, 1997) (finding CWA jurisdiction where pollution
discharged from manmade ponds via seeps into soil and ground water
and, thereafter, surface waters; and holding that, although CWA does
not regulate isolated ground water, CWA does regulate pollutants
entering navigable waters via tributary ground waters); Friends of
the Coast Fork v. Co. of Lane, OR, Civ. No. 95-6105-TC (D. OR.
January 31, 1997) (reaching same conclusion as court in Washington
Wilderness Coalition v. Hecla Mining Co., and finding
hydrologically-connected ground waters are covered by the CWA);
McClellan Ecological Seepage Situation, 763 F. Supp. 431, 438 (E.D.
Cal. 1989), cacated (on other grounds), 47 F.3d 325 (9th Cir. 1995),
cert. denied, 116 S.Ct. 51 (1995) (allowing plaintiff to attempt to
prove at trial that pollutants discharged to ground water are
subsequently discharged to surface water); and McClellan Ecological
Seepage Situation v. Weinberger, 707 F. Supp. 1182, 1195-96 (E.D.
Cal. 1988), vacated (on other grounds), 47 F.3d 325 (9th Cir. 1995),
cert. denied, 116 S.Ct.51 (1995) (although NPDES permit not required
for discharges to isolated ground water, Congress' intent to protect
surface water may require NPDES permits for discharges to ground
water with direct hydrological connection to surface waters);
Friends of Sante Fe Co. v. LAC Minerals, Inc., 892 F. Supp. 1333,
1357-58 (D.N.M. 1995) (although CWA does not cover discharges to
isolated, nontributary groundwater, Quivira and decisions within
Tenth Circuit demonstrating expansive construction of CWA's
jurisdictional reach foreclose arguments that CWA does not regulate
discharges to hydrologically-connected groundwater); Sierra club v.
Colorado Refining Co., 838 F. Supp. at 1434 (``navigable waters''
encompasses tributary groundwater and, therefore, allegations that
defendant violated CWA by discharging pollutants into soils and
groundwater, and that pollutants infiltrated creek via groundwater
and seeps in creek bank, stated cause of action); and Quivira Mining
Co. v. United States EPA, 765 F.2d 126, 130 (10th Cir. 1985), cert.
denied, 474 U.S. 1055 (1986) (affirming EPA's determination that CWA
permit required for discharges of pollutants into surface arroyos
that, during storms, channeled rainwater both directly to streams
and into underground aquifers that connected with such streams);
Martin v. Kansas Board of Regents, 1991 U.S.Dist. LEXIS 2779 (D.Kan.
1991) (``Groundwater . . . that is naturally connected to surface
waters constitute `navigable waters' under the Act.''); see also
Inland Steel Co. v. EPA, 901 F.2d 1419, 1422-23 (7th Cir. 1990)
(''the legal concept of navigable waters might include ground waters
connected to surface waters--though whether it does or not is an
unresolved question. * * * [A] well that ended in such connected
ground waters might be within the scope of the [CWA]'').
---------------------------------------------------------------------------
The decisions which did not find authority to regulate such
discharges under the CWA may, for the most part, be distinguished. In
Village of Oconomowoc Lake v. Dayton Hudson Corp., the Seventh Circuit
held that the CWA does not regulate ground water per se. 24 F.3d 962
(7th Cir. 1994), cert. denied, 513 U.S. 930 (1994). In Oconomowoc,
however, the plaintiff only alluded to a ``possibility'' of a
hydrologic connection. 24 F.3d at 965. In Kelley v. United States, the
district court held that enforcement authority under the CWA did not
include ground water contamination. 618 F. Supp. 1103 (W.D. Mich.
1985). The decision is not well-reasoned, as the Kelley court merely
states--without further elaboration--that the opinion in Exxon v.
Train, which specifically ``expressed no opinion'' on whether the CWA
regulated hydrologically connected ground waters, and the legislative
history ``demonstrate that Congress did not intend the Clean Water Act
to extend federal regulatory enforcement authority over groundwater
contamination.'' Kelley, 618 F. Supp. at 1107 (emphasis added). In
Umatilla, the court concluded that the NPDES program did not apply to
even hydrologically connected ground water. 962 F.Supp. at 1318. The
court reviewed the legislative history and existing precedent on the
issue, but failed to distinguish between the regulation of ground water
per se and the regulation of discharges into waters of the United
States which happen to occur via ground water. Moreover, the court
failed to give deference to the Agency's interpretation of the CWA. Id.
at 1319 (finding that the Agency interpretations cited by the
plaintiffs failed to articulate clear regulatory boundaries and were
not sufficiently ``comprehensive, definitive or formal'' to deserve
deference, but acknowledging that ``neither the statute nor the
legislative history absolutely prohibits an interpretation that the
NPDES requirement applies to discharges of
[[Page 3018]]
pollutants to hydrologically-connected groundwater''). Today's proposal
should provide the type of formal Agency interpretation that court
sought. Two other decisions have simply adopted the reasoning of the
Umatilla court. United States v. ConAgra, Inc., Case No. CV 96-0134-S-
LMB (D. Idaho 1997); Allegheny Environmental Action Coalition v.
Westinghouse, 1998 U.S. Dist. LEXIS 1838 (W.D.Pa. 1998).
The Agency has utilized its expertise in environmental science and
policy to determine the proper scope of the CWA. The determination of
whether the CWA regulates discharges to ground waters connected to
surface waters, like the determination of wetlands jurisdiction,
``ultimately involves an ecological judgment about the relationship
between surface waters and ground waters, it should be left in the
first instance to the discretion of the EPA and the Corps.'' Town of
Norfolk v. U.S. Army Corps of Engineers, 968 F.2d 1438, 1451 (1st Cir.
1992) (citing United States v. Riverside Bayview Homes, Inc., 474 U.S.
at 134). The Supreme Court, too, has acknowledged the difficulty of
determining precisely where Clean Water Act jurisdiction lies and has
held that an agency's scientific judgment can support a legal
jurisdictional judgment. United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121, 134 (1985) (``In view of the breadth of federal
regulatory authority contemplated by the [Clean Water] Act itself and
the inherent difficulties of defining precise bounds to regulable
waters, the Corps' ecological judgment about the relationship between
waters and their adjacent wetlands provides an adequate basis for a
legal judgment that adjacent wetlands may be defined as waters under
the Act.'').
The Agency has made clear the rationale for its construction: ``the
Act requires NPDES permits for discharges to groundwater where there is
a direct hydrological connection between groundwater and surface
waters. In these situations, the affected ground waters are not
considered `waters of the United States' but discharges to them are
regulated because such discharges are effectively discharges to the
directly connected surface waters.'' Amendments to the Water Quality
Standards Regulations that Pertain to Standards on Indian Reservations,
Final Rule, 56 FR 64,876, 64892 (Dec. 12, 1991) (emphasis added). The
Agency has taken this position because ground water and surface water
are highly interdependent components of the hydrologic cycle. The
hydrologic cycle refers to ``the circulation of water among soil,
ground water, surface water, and the atmosphere.'' U.S. Environmental
Protection Agency, ``A Review of Methods for Assessing Nonpoint Source
Contaminated Ground-Water Discharge to Surface Water'' at 3 (April
1991). Thus, a hydrologic connection has been defined as ``the
interflow and exchange between surface impoundments and surface water
through an underground corridor or groundwater.'' NPDES General Permit
and Reporting Requirements for Discharges from Concentrated Animal
Feeding Operations, EPA Region 6 Public Notice of Final Permitting
Decision, 58 FR 7610, 7635-36 (Feb. 8, 1993). The determination of
whether a discharge to ground water in a specific case constitutes an
illegal discharge to waters of the U.S. if unpermitted is a fact
specific one. The general jurisdictional determination by EPA that such
discharges can be subject to regulation under the CWA is a
determination that involves an ecological judgment about the
relationship between surface waters and ground waters.
Finally, the Supreme Court has explicitly acknowledged that
resolution of ambiguities in agency-administered statutes involves
policymaking: ``As Chevron itself illustrates the resolution of
ambiguity in a statutory text is often more a question of policy than
of law. * * * When Congress, through express delegation or the
introduction of an interpretive gap in the statutory structure, has
delegated policymaking to an administrative agency, the extent of
judicial review of the agency's policy determinations is limited.''
Pauly v. Bethenergy Mines, Inc., 116 S.Ct. 2524, 2534 (1991). Congress
established a goal for the CWA ``to restore and maintain the chemical,
physical and biological integrity of the nation's waters and to
eliminate the discharge of pollutants into the navigable waters.'' 33
U.S.C. Sec. 1251(a)(1). Congress also established some parameters for
reaching that goal, but left gaps in the statutory structure. One of
those gaps is the issue of discharges of pollutants from point sources
which harm navigable waters but which happen to occur via ground water.
The Agency has chosen to fill that gap by construing the statute to
regulate such discharges as point source discharges. Given the Agency's
knowledge of the hydrologic cycle and aquatic ecosystems, the Agency
has determined that when it is reasonably likely that such discharges
will reach surface waters, the goals of the CWA can only be fulfilled
if those discharges are regulated.
Determining Direct Hydrologic Connection. In recent rulemakings,
EPA has used various lithologic settings to describe areas of
vulnerability to contamination of ground water. This information can
serve as a guide for permit writers to make the initial determination
whether or not it is necessary to establish special conditions in a
CAFO permit to prevent the discharge of CAFO waste to surface water via
ground water with a direct hydrologic connection to surface water.
During the rulemaking processes for the development of the Ground
Water Rule and the Underground Injection Control Class V under the Safe
Drinking Water Act, significant stakeholder and Federal Advisory
Committee Act (FACA), input was used to define lithologic settings that
are likely to indicate ground water areas sensitive to contamination.
Areas likely to have such a connection are those that have ground water
sensitive to contamination and that have a likely connection to surface
water. The Ground Water Proposed Rule includes language that describes
certain types of lithologic settings (karst, fractured bedrock, and
gravel) as sensitive to contamination and, therefore, subject to
requirements under the rule to mitigate threats to human health from
microbial pathogens. [See National Primary Drinking Water Regulations:
Ground Water Rule, 65 FR 30193 (2000) (to be codified at 40 CFR Parts
141 and 142) (proposed May 10, 2000). See also Underground Injection
Control Regulations for Class V Injection Wells, Revision; Final Rule,
64 FR 68546 (Dec. 7, 1999) (to be codified at 40 CFR Parts 9, 144, 145,
and 146). See also Executive Summary, NDWAC UIC/Source Water Program
Integration Working Group Meeting (March 25-26, 1999). All are
available in the rulemaking Record.]
Under the Class V rule, a facility must comply with the mandates of
the regulation if the facility has a motor vehicle waste disposal well
(a type of Class V well) that is in an area that has been determined to
be sensitive. (See Technical Assistance Document (TAD) for Delineating
``Other Sensitive Ground Water Areas'', EPA #816-R-00-016--to be
published.) States that are responsible for implementing the Class V
Rule, or in the case of Direct Implementation Programs, the EPA
Regional Office, are given flexibility to make determinations of ground
water sensitivity within certain guidelines.
40 CFR 145.23(f)(12) provides items that States are expected to
consider in developing their other sensitive ground water area plan,
including:
Geologic and hydrogeologic settings,
Ground water flow and occurrence,
[[Page 3019]]
Topographic and geographic features,
Depth to ground water,
*Significance as a drinking water source,
*Prevailing land use practices, and
*Any other existing information relating to the
susceptibility of ground water to contamination from Class V injection
wells.
*The last three factors are not relevant to this rulemaking but
are specific to mandates under the Safe Drinking Water Act to
protect current and future sources of drinking water.
Geologic and hydrogeologic settings considered sensitive under the
Class V Rule include areas such as karst, fractured bedrock or other
shallow/unconsolidated aquifers. The Class V Rule lists karst,
fractured volcanics and unconsolidated sedimentary aquifers, such as
glacial outwash deposits and eolian sands, as examples of aquifer
types. Under the Class V Rule, EPA urges States to consider all aquifer
types that, based on their inherent characteristics, are likely to be
moderately to highly sensitive. Such aquifer types are those that
potentially have high permeability, such as: all fractured aquifers;
all porous media aquifers with a grain size of sand or larger,
including not only unconsolidated aquifers, but sandstone as well; and
karst aquifers.
For more information at the regional level, information can be
found in the document ``Regional Assessment of Aquifer Vulnerability
and Sensitivity in the Coterminous United States'' [EPA/600/2-91/043]
for state maps showing aquifers and portions of aquifers whose
transmissivity makes them sensitive/vulnerable. This document may be
helpful in identifying areas where existing contaminants are most
likely to spread laterally. State and federal geological surveys have
numerous geological maps and technical reports that can be helpful in
the identification of areas of sensitive aquifers. University geology
and earth science departments and consulting company reports may also
have helpful information.
Data sources to assist permit writers in making sensitivity
determinations can be acquired through many sources as listed above and
include federal, state, and local data. For example, USGS maps and
databases such as the principal aquifers map, state maps, other
programs where such assessments may have been completed, such as State
Source Water Assessment Programs (SWAP), state Class V, or Ground Water
Rule sensitivity determinations.
Another potential approach to defining areas of ground water
sensitivity would be to define a set of characteristics which a
facility could determine whether it met by using a set of national,
regional and/or local maps. For instance, overburden, that is, soil
depth and type, along with depth to water table, hydrogeologic
characteristics of the surficial aquifer, and proximity to surface
water could be factors used to define sensitive areas for likely ground
water/surface water connections. For example, while there is no
consistent definition or agreement as to what could be considered
``shallow,'' a depth to the water table less than, say, six feet with
sandy soils or other permeable soil type might indicate ground water
vulnerability. Data of this nature could be obtained from USDA's
Natural Resource Conservation Service (NRCS) national soils maps,
available from the NRCS web site (www.nhq.nrcs.usda.gov/land/index/soils.html) or from the EPA web site (www.epa.gov/ostwater/BASINS/metadata/statsgo.htm).
Once it is determined that the CAFO is in a ground water sensitive
area, proximity to a surface water would indicate a potential for the
CAFO to discharge to surface water via a direct hydrological connection
with ground water. Proximity to surface water would be considered when
there is a short distance from the boundary of the CAFO to the closest
downstream surface water body. Again, information of this type could be
obtained from USGS topographic maps or state maps.
USGS Hydrologic Landscape Regions. Another approach for determining
whether CAFOs in a region are generally located in areas where surface
water is likely to have hydrological connections with ground water is
by using a set of maps under development by the U.S. Geological Survey
(USGS). USGS is developing a national map of Hydrologic Landscape
Regions that describe watersheds based on their physical
characteristics, such as topography and lithology. These maps will,
among other things, help to identify physical features in the landscape
that are important to water quality such as areas across the country
where the geohydrology is favorable for ground water interactions with
surface water.
The regions in this map will be delineated based on hydrologic unit
codes (HUCs) nationwide and do not provide information at local scales;
however, the maps can provide supplemental information that describes
physical features within watersheds where interactions between ground
water and surface water are found. These areas are the most likely
places where ground water underlying CAFO's could be discharged to
nearby surface water bodies. While EPA has not fully assessed how this
tool might be used to determine a CAFO's potential to discharge an
excerpt of the pre-print report is provided here for purposes of
discussion. The report describing this tool is anticipated to be
published in Spring 2001 (Wolock, Winter, and McMahon, in review).
The concept of hydrologic landscapes is based on the idea that a
single, simple physical feature is the basic building block of all
landscapes. This feature is termed a fundamental landscape unit and is
defined as an upland adjacent to a lowland separated by an intervening
steeper slope. Some examples of hydrologic landscapes are as follows:
A landscape consisting of narrow lowlands and uplands
separated by high and steep valley sides, characteristic of mountainous
terrain;
A landscape consisting of very wide lowlands separated
from much narrower uplands by steep valley sides, characteristic of
basin and range physiography and basins of interior drainage; or
A landscape consisting of narrow lowlands separated from
very broad uplands by valley sides of various slopes and heights,
characteristic of plateaus and high plains.
The hydrologic system of a fundamental landscape unit consists of
the movement of surface water, ground water, and atmospheric-water
exchange. Surface water movement is controlled by land-surface slope
and surficial permeability; ground-water flow is a function of
gravitational gradients and the hydraulic characteristics of the
geologic framework; and atmospheric-water exchange primarily is
determined by climate (Winter, in review). The same physical and
climate characteristics control the movement of water over the surface
and through the subsurface regardless of the geographic location of the
landscapes. For example, if a landscape has gentle slopes and low-
permeability soils, then surface runoff will be slow and recharge to
ground water will be limited. In contrast, if the soils are permeable
in a region of gentle slopes, then surface runoff may be limited but
ground-water recharge will be high.
The critical features used to describe hydrologic landscapes are
land-surface form, geologic texture, and climate. Land-surface form can
be used to quantify land-surface slopes and relief. Geologic texture
provides estimates of surficial and deep subsurface permeability which
control infiltration, the production of overland flow, and
[[Page 3020]]
ground-water flow rates. Climate characteristics can be used to
approximate available water to surface and ground-water systems. The
variables used to identify hydrologic settings were averaged within
each of the 2,244 hydrologic cataloging units defined by the USGS. This
degree of spatial averaging was coarse enough to smooth the underlying
data but fine enough to separate regions from each other.
For example, two Hydrological Landscape Regions (HLR) that are
likely to have characteristics of ground water and surface water
interactions with direct relevance to this proposed rulemaking would be
``HLR1'' and ``HLR9''. HLR1 areas are characterized by variably wet
plains having highly permeable surface and highly permeable subsurface.
This landscape is 92 percent flat land, with 56 percent of the flat
land in the lowlands and 37 percent in the uplands. Land surface and
bedrock are highly permeable. Because of the flat sandy land surface,
this geologic framework should result in little surface runoff, and
recharge to both local and regional ground-water flow systems should be
high. Therefore, ground water is likely to be the dominant component of
the hydrologic system in this landscape. The water table is likely to
be shallow in the lowlands, resulting in extensive wetlands in this
part of the landscape.
Major water issues in this hydrologic setting probably would be
related to contamination of ground water. In the uplands, the
contamination could affect regional ground-water flow systems. In the
lowlands, the thin unsaturated zone and the close interaction of ground
water and surface water could result in contamination of surface water.
Flooding probably would not be a problem in the uplands, but it could
be a serious problem in the lowlands because of the flat landscape and
shallow water table.
HLR9 areas are characterized by wet plateaus having poorly
permeable surface and highly permeable subsurface. This landscape is 42
percent flat land, with 24 percent in lowlands and 17 percent in
uplands. Land surface is poorly permeable and bedrock is highly
permeable. Because of the flat poorly permeable land surface, this
geologic framework should result in considerable surface runoff and
limited recharge to ground water. However, the bedrock is largely
karstic carbonate rock, which probably would result in a considerable
amount of surface runoff entering the deep aquifer through sinkholes.
This water could readily move through regional ground-water flow
systems. Surface runoff and recharge through sinkholes are likely to be
the dominant component of the hydrologic system in this landscape. The
water table is likely to be shallow in the lowlands, resulting in
extensive wetlands in this part of the landscape. Major water issues in
this hydrologic setting probably would be related to contamination of
surface water from direct surface runoff, and extensive contamination
of ground water (and ultimately surface water) because of the ease of
movement through the bedrock. The capacity of these carbonate rocks to
mediate contaminants is limited. Flooding could be a problem in the
lowlands.
EPA is requesting comment on how a permit writer might identify
CAFOs at risk of discharging to surface water via ground water. EPA is
also requesting comment on its cost estimates for the permittee to have
a hydrologist make such a determination. EPA estimates that for a
typical CAFO, the full cost of determining whether ground water beneath
the facility has a direct hydrologic connection to surface water would
be approximately $3,000. See Section X for more information on cost
estimates.
Permit requirements for facilities with groundwater that has a
direct hydrologic connection with surface water are discussed in
Section VII.E.5.d below.
k. What Regulatory Relief is Provided by Today's Proposed
Rulemaking? Two-tier vs. Three-tier Structure. Each of EPA's proposals
effect small livestock and poultry businesses in different ways, posing
important trade-offs when selecting ways to mitigate economic impacts.
First, by proposing to establish a two-tier structure with a 500 AU
threshold, EPA is proposing not to automatically impose the effluent
guidelines requirements on operations with 300 to 500 AU. By
eliminating this size category, EPA estimates that about 10,000 smaller
AFOs are relieved from being defined as CAFOs, and instead would only
be subject to permitting if designated by the permit authority due to
being a significant contributor of pollutants.
A three-tier structure, by contrast, only automatically defines all
operations over 1,000 AU as CAFOs, instead of 500 AU. However, while
all of the 26,000 AFOs between 300 and 1,000 AU wouldn't be required to
apply for an NPDES permit, all those operations would be required to
either apply for a permit or to certify to the permit authority that
they do not meet any of the conditions for being a CAFO. EPA estimates
that approximately 19,000 of these operations would have to change some
aspect of their operation in order to avoid being permitted, and all
26,000 would be required to develop and implement a PNP. Thus, while in
theory fewer operations could be permitted, in fact more small
enterprises would incur costs under a three-tier scenario. Section
X.J.4 provides a summary of the difference in costs associated with
these two options; more detailed information is provided in Section 9
of the Economic Analysis.
The three-tier structure allows States more flexibility to develop
more effective non-NPDES programs to assist middle tier operations. The
two-tier structure with a 500 AU threshold might limit access to
federal funds, such as Section 319 nonpoint source program funds, for
operations in the 500 to 1,000 AU range. The detailed conditions in the
three-tier structure, however, do not meet the goal of today's proposal
to simplify the NPDES regulation for CAFOs because it leaves in place
the need for the regulated community and enforcement authorities to
interpret a complicated set of conditions.
Chicken Threshold. During deliberations to select a threshold for
dry chicken operations, EPA considered various options for relieving
small business impacts. Under the two-tier structure, EPA examined a
100,000 bird threshold as well as a 50,000 bird threshold. Although the
50,000 bird threshold effects many more small chicken operations,
analysis showed that setting the threshold at 100,000 birds would not
be sufficiently environmentally protective in parts of the country that
have experienced water quality degradation from the chicken industry.
Section VII.C.2.f describes the relative benefits of each of these
options. Nonetheless, because wet layer operations are currently
regulated at 30,000 birds, raising the threshold to 50,000 birds will
relieve some small businesses in this sector.
Elimination of the mixed animal calculation. EPA's is further
proposing to mitigate the effects of today's proposal on small
businesses by eliminating the mixed animal calculation for determining
which AFOs are CAFOs. Thus, operations with mixed animal types that do
not meet the size threshold for any single livestock category would not
be defined as a CAFO. EPA expects that there are few AFOs with more
than a single animal type that would be defined as CAFOs, since most
mixed operations tend to be smaller in size. The Agency determined that
the inclusion of mixed operations would disproportionately burden small
businesses while resulting in little additional environmental benefit.
Since
[[Page 3021]]
most mixed operations tend to be smaller in size, this exclusion
represents important accommodations for small business. EPA's decision
not to include smaller mixed operations is consistent with its
objective to focus on the largest operations since these pose the
greatest potential risk to water quality and public health given the
sheer volume of manure generated at these operations.
Operations that handle larger herds or flocks take on the
characteristics of being more industrial in nature, rather than having
the characteristics typically associated with farming. These facilities
typically specialize in a particular animal sector rather than having
mixed animal types, and often do not have an adequate land base for
agricultural use of manure. As a result, large facilities need to
dispose of significant volumes of manure and wastewater which have the
potential, if not properly handled, to cause significant water quality
impacts. By comparison, smaller farms manage fewer animals and tend to
concentrate less manure nutrients at a single farming location. Smaller
farms tend to be less specialized and are more diversified, engaging in
both animal and crop production. These farms often have sufficient
cropland and fertilizer needs to land apply manure nutrients generated
at a farm's livestock or poultry business for agricultural purposes.
For operations not defined as a CAFO, the Permit Authority would
designate any facility determined to be a significant contributor of
pollution to waters of the U.S. as a CAFO, and would consequently
develop a permit based on best professional judgement (BPJ).
The estimated cost savings from eliminating the mixed animal
calculation is indeterminate due to limited information about
operations of this size and also varying cost requirements. EPA's
decision is also expected to simplify compliance and be more
administratively efficient, since the mixed operation multiplier was
confusing to the regulated community and to enforcement personnel, and
did not cover all animal types (because poultry did not have an AU
equivalent).
Site-specific PNPs Rather than Mandated BMPs. In addition, while
facilities that are defined or designated as CAFOs would be subject to
specific performance standards contained with the permit conditions,
EPA's proposed revisions also provide flexibility to small businesses.
In particular, the revised effluent guidelines and NPDES standards and
conditions are not specific requirements for design, equipment, or work
practices, but rather allow the CAFO operator to write site-specific
Permit Nutrient Plans that implement the permit requirements in a
manner appropriate and manageable for that business. This will reduce
impacts to all facilities, regardless of size, by allowing operators to
choose the least costly mix of process changes and new control
equipment that would meet the limitations.
Demonstration of No Potential to Discharge. Finally, in both
proposals, operations that must apply for a permit would have the
additional opportunity to demonstrate to the permit authority that
pollutants have not been discharged and have no potential to discharge
into waters of the U.S. These operations would not be issued a permit
if they can successfully demonstrate no potential to discharge. See
section VII.D.3 for a discussion of demonstrating ``no potential to
discharge.''
Measures Not Being Proposed. During the development of the CAFO
rulemaking, EPA considered regulatory relief measures under the NPDES
permit program that are not being proposed, including: (1) A ``Good
Faith Incentive,'' and (2) an ``Early Exit'' provision. These options
are summarized below. More detail is provided in the SBREFA Panel
Report (2000).
Under the ``Good Faith Incentive,'' EPA considered incorporating an
incentive for small CAFO businesses (i.e., AFOs with a number of
animals below the regulatory threshold) to take early voluntary actions
in good faith to manage manure and wastewater in accordance with the
requirements of a nutrient management plan. In the event that such
smaller AFOs have a discharge that would otherwise cause them to be
designated as CAFOs, the CAFO regulations would provide an opportunity
for these smaller AFOs to address the cause of the one-time discharge
and avoid being designated as CAFOs.
Under the ``Early Exit'' provision, EPA considered a regulatory
provision that would explicitly allow CAFOs with fewer animals than the
regulatory threshold for large CAFOs to exit the regulatory program
after five years of good performance. The regulations could allow such
a smaller CAFO to exit the regulatory program if it demonstrates that
it had successfully addressed the conditions that caused it to either
be defined or designated as a CAFO.
EPA decided not to include either of these provisions in the
proposed regulations following the SBAR Panel consultation process.
Neither small businesses, SBA, OMB, nor EPA enforcement personnel
expressed support for either of these provisions. Also, the Early Exit
provision was not deemed to provide additional regulatory relief over
the current program, since an operation that has been defined or
designated as a CAFO can already make changes at the operation whereby,
after complying with the permit for the permit's five year term, the
operation would no longer meet the definition of a CAFO and therefore
would no longer be required to be permitted.
Both the regulatory relief measures selected and those considered
but not selected are discussed in detail in Chapter 9 of the Economic
Analysis, included in the Record for today's proposed rulemaking. EPA
requests comment on the regulatory relief measures considered but not
included in today's proposal.
3. How Does the Proposed Rule Change the Existing Designation Criteria
and Procedure?
In the existing regulation, an operation in the middle tier, those
with 300 AU to 1,000 AU, may either be defined as a CAFO or designated
by the permit authority; those in the smallest category, with fewer
than 300 AU, may only be designated a CAFO if the facility discharges:
(1) into waters of the United States through a man-made ditch, flushing
system, or other similar man-made device; or (2) directly into waters
of the United States that originate outside of the facility and pass
over, across, or through the facility or otherwise come into direct
contact with the confined animals. The permit authority must conduct an
on-site inspection to determine whether the AFO is a significant
contributor of pollutants. The two discharge criteria have proved
difficult to interpret and enforce, making it difficult to take
enforcement action against dischargers. Very few facilities have been
designated in the past 25 years despite environmental concerns.
EPA's proposals on how, and whether, to amend these criteria vary
with the alternative structure. Under a two-tier structure, EPA is
proposing to eliminate these two criteria; under a three-tier
structure, EPA is proposing to retain these two criteria.
Under the proposed two-tier structure with a 500 AU threshold, or
under any other alternative two-tier structure such as with a 750 AU
threshold, EPA is proposing to eliminate the two discharge criteria.
Raising the NPDES threshold to 500 AU, 750 AU or 1,000 AU raises a
policy question for facilities below the selected threshold but with
more than 300 AU. Facilities with 300 to 1,000 AU are currently subject
to
[[Page 3022]]
NPDES regulation (if certain criteria are met). To rely entirely on
designation for these operations could be viewed by some as
deregulatory, because the designation process is a time consuming and
resource intensive process that makes it difficult to redress
violations. It could also result in the inability of permit authorities
to take enforcement actions against initial discharges unless they are
from an independent point source at the facility. Otherwise, the
initial discharge can only result in initiation of the designation
process itself; enforcement could only take place upon a subsequent
discharge. Unless the designation process can be streamlined in some
way to enable permit authorities to more efficiently address those who
are significant contributors of pollutants, raising the threshold too
high may also not be sufficiently protective of the environment. While
EPA could have proposed to retain the two criteria for those with fewer
than 300 AU, and eliminate it only for those with greater than 300 AU
but below the regulatory threshold, EPA believes that this would
introduce unnecessary complexity into this regulation.
While eliminating the two discharge criteria, this proposal would
retain the provision in the existing regulation that any AFO may be
designated as a CAFO on a case-by-case basis if the NPDES permit
authority determines that the facility is a significant contributor of
pollutants to waters of the U.S. Today's proposal would not change the
factors that the regulation lists as relevant to whether a facility is
a significant contributor--see proposed Sec. 122.23(b)(1) (listing
factors such as: the size of the operation; the amount of wastewater
discharged; the location of any potential receiving waters; means of
conveyance of animal manure and process wastewater into waters of the
U.S.; slope, vegetation, rainfall and other factors affecting the
likelihood or frequency of discharge to receiving waters).
This proposal also retains the existing requirement that the permit
authority conduct an on-site inspection before making a designation. No
inspection would be required, however, to designate a facility that was
previously defined or designated as a CAFO, although the permit
authority may chose to do one.
Under a three-tier structure, EPA is proposing to retain the two
discharge criteria used to designate an AFO with fewer than 300 AU as a
CAFO. In this approach, facilities in the 300 AU to 1,000 AU size range
must meet certain conditions for being considered a CAFO, and EPA
considers this to be sufficiently protective of the environment.
EPA is requesting comment on these two proposals, and also requests
comment on three other alternatives. EPA could: (1) retain the two
criteria even under a two-tier structure for all operations below the
regulatory threshold; (2) retain the two criteria under a two-tier
structure for only for those with fewer than 300 AU and eliminate the
two criteria for those below the regulatory threshold but with greater
than 300 AU; or (3) eliminate the criteria in the three-tier structure
for those with fewer than 300 AU.
Significant concern was raised over the issue of designation during
the SBREFA Panel process. At the time of the Panel, EPA was not
considering eliminating these two criteria, and SERs and Panel members
strongly endorsed this position. At that time, EPA's was focusing on a
three-tier structure with revised conditions as the preferred option,
and retaining the criteria was consistent with the revisions being
considered. Since then, however, EPA's analysis has resulted in a
strong option for a two-tier approach that would be simpler to
implement and would focus on the largest operations. Once this scenario
became a strong candidate, reconsideration of the two designation
criteria was introduced. EPA realizes that this proposal has raised
some concern in the small business community. However, EPA does not
believe that eliminating these criteria will result in significantly
more small operations being designated. Rather, it will enable the
permit authority to ensure that the most egregious discharges of
significant quantities of pollutants are addressed.
It is likely that few AFOs with less than 300 AU are significant
contributors of pollutants, and permit authorities may be appropriately
focusing scarce resources on larger facilities. Further, some also
believe that it may be appropriate under a two-tier structure to retain
the two criteria as well as the on-site inspection criterion to AFOs
under the regulatory threshold, e.g. with fewer than 500 AU or 750 AU.
SERs during the SBREFA process indicated that family farmers operating
AFOs with fewer than 1,000 AU tend to have a direct interest in
environmental stewardship, since their livelihood (e.g., soil quality
and drinking water) often depends on it. They also argued that EPA
should not divert resources away from AFOs with the greatest potential
to discharge--those with 1,000 AU or more. EPA is soliciting comment on
whether to retain the designation criteria for all AFOs below the
regulatory threshold in a two-tier structure, and whether this option
will be protective of the environment.
While permit authorities have indicated that the requirement for an
on-site inspection makes the designation process resource intensive,
recommendations resulting from the SBREFA small business consultation
process encouraged EPA not to remove the on-site inspection
requirement. Some were concerned that EPA might do widespread blanket
designations of large numbers of operations, especially in watersheds
that have been listed under the CWA 303(d), Total Maximum Daily Load
(TMDL) process. Thus, EPA is soliciting comment on whether to eliminate
the requirement that the inspection be ``on-site,'' perhaps by
allowing, in lieu of on-site inspections, other forms of site-specific
information gathering, such as use of monitoring data, fly-overs,
satellite imagery, etc. Other parts of the NPDES program allow such
information gathering and do not require inspections to be ``on-site.''
If the on-site requirement were eliminated, the permit authority
would still need to make a determination that the facility is a
significant contributor of pollution, which might necessitate an on-
site inspection in many cases. On the other hand, in watersheds that
are not meeting water quality standards for nutrients, the permit
authority could designate all AFOs as CAFOs without conducting
individual on-site inspections. Even in 303(d) listed watersheds,
however, an operator of an individual facility might be able to
demonstrate in the NPDES permit application that it has no potential to
discharge, and request that it be exempted from NPDES requirements.
Due to the significant concerns of the small business community,
EPA is not proposing at this time to eliminate the on-site inspection
requirements, but, rather, EPA is soliciting comment on whether or not
to eliminate this provision or to revise it to allow other forms of
site-specific data gathering.
Finally, EPA is proposing a technical correction to the designation
regulatory language. The existing CAFO NPDES regulations provide for
designation of an AFO as a CAFO upon determining that it is a
significant contributor of ``pollution'' to the waters of the U.S. 40
CFR 122.23(c). EPA is today proposing to change the term to
``pollutants.'' Elsewhere in the NPDES regulations, EPA uses the phrase
``significant contributor of pollutants'' for designation purposes. 40
CFR 122.26(a)(1)(v). EPA is not aware of any reason the Agency would
have used different terms for similar designation
[[Page 3023]]
standards, and is seeking consistency in this proposal. The Agency
believes the term ``pollutant'' is the correct term. The Clean Water
Act provides definitions for both ``pollutant and ``pollution'' in
Section 502, but the NPDES program of Section 402 focuses specifically
on permits ``for the discharge of any pollutant, or combination of
pollutants.'' Therefore, EPA believes it is appropriate to establish a
designation standard for purposes of permitting CAFOs based on whether
a facility is a significant contributor of ``pollutants.''
4. Designation of CAFOs by EPA in Approved States
Today's proposal would explicitly allow the EPA Regional
Administrator to designate an AFO as a CAFO if it meets the designation
criteria in the regulations, even in States with approved NPDES
programs. See proposed Sec. 122.23(b). As described in the preceding
section, VII.C.4, AFOs that have not been defined as CAFOs may be
designated as CAFOs on a case-by-case basis upon determination that
such sources are significant contributors of pollution to waters of the
United States. EPA's authority to designate AFOs as CAFOs would be
subject to the same criteria and limitations to which State designation
authority is subject.
The existing regulatory language is not explicit as to whether EPA
has the authority to designate AFOs as CAFOs in States with approved
NPDES programs. The current regulations state that ``the Director'' may
designate AFOs as CAFOs. 40 CFR 122.23(c)(1). The existing definition
of ``Director'' states: ``When there is an approved State program,
`Director' normally means the State Director. In some circumstances,
however, EPA retains the authority to take certain actions even where
there is an approved State program.'' 40 CFR 122.2. Today's proposal
would give EPA the explicit authority to designate an AFO as a CAFO in
States with approved programs.
EPA does not propose to assume authority or jurisdiction to issue
permits to the CAFOs that the Agency designates in approved NPDES
States. That authority would remain with the approved State.
EPA believes that CWA Section 501(a) provides the Agency with the
authority to designate point sources subject to regulation under the
NPDES program, even in States approved to administer the NPDES permit
program. This interpretive authority to define point sources and
nonpoint sources was recognized by the D.C. Circuit in NRDC v. Costle,
568 F.2d 1369, 1377 (D.C. Cir. 1977). The interpretive authority arises
from CWA Section 501(a) when EPA interprets the term ``point source''
at CWA Section 502(14). EPA's proposal would ensure that EPA has the
same authority to designate AFOs as CAFOs that need a permit as the
Agency has to designate other storm water point sources as needing a
permit. See 40 CFR 122.26(a)(2)(v).
EPA recognizes that many State agencies have limited resources to
implement their NPDES programs. States may be hesitant to designate
CAFOs because of concerns that regulating the CAFOs will require
additional resources that could be used for competing priorities. In
light of the increased reliance and success in control of point sources
under general permits, however, the Agency believes that there will be
only an incremental increase in regulatory burden due to the designated
sources.
On August 23, 1999, the Agency proposed to provide explicit
authority for EPA to designate CAFOs in approved States, but would have
limited such authority to the designation of AFOs where pollutants are
discharged into waters for which EPA establishes a total maximum daily
load or ``TMDL'' and designation is necessary to ensure that the TMDL
is achieved. 64 FR 46058, 46088 (August 23, 1999). EPA received
comments both supporting and opposing the proposal. In promulgating the
final TMDL rule, however, the Agency did not take final action on the
proposed changes applicable to CAFOs, 65 FR 43586, 43648 (July 13,
2000), deciding instead to take action in this proposed rulemaking.
Today's proposal is intended to help ensure nationally consistent
application of the provisions for designating CAFOs and is not focusing
specifically at AFOs in impaired watersheds. Implementation of the
current rule in States with NPDES authorized programs has varied
greatly from State to State, with several States choosing to implement
non-NPDES State programs rather than a federally enforceable NPDES
program. Public concerns have also been raised about lack of access to
State non-NPDES CAFO programs. While several of today's proposed
revisions would help to correct these disparities, EPA is concerned
that there may be instances of significant discharges from AFOs that
may not be addressed by State programs, and that are not being required
to comply with the same standards and requirements expected of all
AFOs. As part of their approved programs, States should designate AFOs
that are significant sources of pollutants. EPA would have the
authority to designate AFOs as CAFOs, should that be necessary.
The Agency invites comment on this proposal.
5. Co-permitting Entities That Exert Substantial Operational Control
Over a CAFO
EPA is proposing that permit authorities co-permit entities that
exercise substantial operational control over CAFOs along with the
owner/operator of the facility. See proposed Sec. 122.23(a)(5) and
(i)(4). While the permit authority currently may deem such entities to
be ``operators'' under the Clean Water Act and require them to be
permitted under existing legal requirements, today's proposal includes
changes to the regulations to identify the circumstances under which
co-permitting is required and how permit authorities are expected to
implement the requirements. Because the existing definition of
``operator'' in 122.2 generally already encompasses operators who
exercise substantial operational control, the Agency is seeking comment
on whether this additional definition [or provision] is necessary.
For other categories of discharges, EPA's regulations states that
contributors to a discharge ``may'' be co-permittees. See 40 CFR
Sec. 122.44(m). Sec. 122.44(m) addresses the situation in which the co-
permittees operate distinct sources and a privately owned treatment
works is the owner of the ultimate point source discharge. In that
context, EPA deemed it appropriate to give the permit writer the
discretion to permit only the privately owned treatment works or the
distinct sources, or both, depending on the level of control each
exercises over the pollutants. In the context of CAFOs, however, the
co-permittees both control some aspects of operations at the point
source. Therefore, EPA is proposing that they must either be co-
permittees or each must hold a separate permit.
Processor/Producer Relationship. As discussed below, proposed
Sec. 122.23(a)(5) is intended, at a minimum, to require permit
authorities to hold certain entities that exercise substantial
operational control over other entities jointly responsible for the
proper disposition of manure generated at the CAFO. While under today's
proposal a permit authority could require an entity that has
substantial operational control over a CAFO to be jointly responsible
for all of the CAFO's NPDES permit requirements, the proposal would
allow the permit authority to allocate individual responsibility for
various activities to any of the co-permittees. The proposed
[[Page 3024]]
rule would specify, however, that the proper disposition of manure must
remain the joint responsibility of all the entities covered by the
permit.
As discussed in more detail in section IV.C. of this preamble,
among the major trends in livestock and poultry production are closer
linkages between animal feeding operations and processing firms.
Increasingly, businesses such as slaughtering facilities and meat
packing plants and some integrated food manufacturing facilities are
contracting out the raising or finishing production phase to a CAFO.
Oftentimes, production contracts are used in which a contractor (such
as a processing firm, feed mill, or other animal feeding operation)
retains ownership of the animals and/or exercises substantial
operational control over the type of production practices used at the
CAFO. More information on the trends in animal agriculture and the
evolving contractual relationships between producer and processors is
presented in section IV.C of this preamble.
Use of production contracts varies by sector. Production
contracting dominates U.S. broiler and turkey production, accounting
for 98 percent of annual broiler production and 70 percent of turkey
production. About 40 percent of all eggs produced annually are under a
production contract arrangement. Production contracting in the hog
sector still accounts for a relatively small share of production (about
30 percent of hog production in 1997), but use is rising, especially in
some regions. Production contracts are uncommon at beef and dairy
operations, although they are used by some operations to raise
replacement herd or to finish animals prior to slaughter. Additional
detail on the use of production contracts in these sectors is provided
in section VI.
Although farmers and ranchers have long used contracts to market
agricultural commodities, increased use of production contracts is
changing the organizational structure of agriculture and is raising
policy concerns regarding who is responsible for ensuring that manure
and wastewater is contained on-site and who should pay for
environmental improvements at a production facility. As a practical
matter, however, regulatory authorities have limited ability to
influence who pays for environmental compliance, since the division of
costs and operational responsibilities is determined by private
contracts, not regulation.
In addition, there is also evidence that the role of the producer-
processor relationship may influence where animal production facilities
become concentrated, since animal feeding operations tend to locate in
close proximity to feed and meat packing plants. This trend may be
increasing the potential that excess manure nutrients beyond the need
for crop fertilizer are becoming concentrated in particular geographic
areas, thus raising the potential for increased environmental pressure
in those areas. To further examine this possibility, EPA conducted an
analysis of the correlation between areas of the country where there is
a concentration of excess manure generated by animal production
operations and a concentration of meat packing and poultry slaughtering
facilities. This analysis concludes that in some areas of the country
there is a strong correlation between areas of excess manure
concentrations and areas where there is a large number of processing
plants. More information on this analysis is provided in section IV.C.4
of this preamble.
Substantial Operational Control as Basis for Co-Permitting. Today's
proposal would clarify that all entities that exercise substantial
operational control over a CAFO are subject to NPDES permitting
requirements as an ``operator'' of the facility. EPA's regulations
define an owner or operator as ``the owner or operator of any `facility
or activity' subject to regulation under the NPDES program.'' 40 CFR
Sec. 122.2. This definition does not provide further detail to
interpret the term, and the Agency looks for guidance in the
definitions of the term in other sections of the statute: ``The term
`owner or operator' means any person who owns, leases, operates,
controls, or supervises a source.'' CWA Sec. 306(a)(4) (emphasis
added).
Case law defining the term ``operator'' is sparse, but courts
generally have concluded that through the inclusion of the terms owner
and operator: ``Liability under the CWA is predicated on either (1)
performance of the work, or (2) responsibility for or control over the
work.'' U.S. v. Sargent County Water Resources Dist., 876 F.Supp 1081,
1088 (N.D. 1992). See also, U.S. v. Lambert, 915 F.Supp. 797, 802
(S.D.WVa. 1996) (``The Clean Water Act imposes liability both on the
party who actually performed the work and on the party with
responsibility for or control over performance of the work.''); U.S. v.
Board of Trustees of Fla. Keys Community College, 531 F.Supp. 267, 274
(S.D.Fla. 1981). Thus, under the existing regulation and existing case
law, integrators which are responsible for or control the performance
of the work at individual CAFOs may be subject to the CWA as an
operator of the CAFO. With today's proposal, EPA is identifying some
factors which the Agency believes indicate that the integrator has
sufficient operational control over the CAFO to be considered an
``operator'' for purposes of the CWA.
Whether an entity exercises substantial operational control over
the facility would depend on the circumstances in each case. The
proposed regulation lists factors relevant to ``substantial operational
control,'' which would include (but not be limited to) whether the
entity: (1) Directs the activity of persons working at the CAFO either
through a contract or direct supervision of, or on-site participation
in, activities at the facility; (2) owns the animals; or (3) specifies
how the animals are grown, fed, or medicated. EPA is aware that many
integrator contracts may not provide for direct integrator
responsibility for manure management and disposal. EPA believes,
however, that the proposed factors will identify integrators who
exercise such pervasive control over a facility that they are, for CWA
purposes, co-operators of the CAFO.
This is a representative list of factors that should be considered
in determining whether a co-permit is appropriate, but States should
develop additional factors as needed to address their specific needs
and circumstances. The greater the degree to which one or more of these
or other factors is present, the more likely that the entity is
exercising substantial operational control and, thus, the more
important it becomes to co-permit the entity. For example, the fact
that a processor required its contract grower to purchase and feed its
animals feed from a specific source could be relevant for evaluating
operational control. EPA will be available to assist NPDES permit
authorities in making case-specific determinations of whether an entity
is exerting control such that it should be co-permitted. EPA is also
taking comment on whether there are additional factors which should be
included in the regulation. EPA also requests comment on whether degree
of participation in decisions affecting manure management and disposal
is one of the factors which should be considered.
EPA is soliciting comment on whether, alternatively, the fact that
an entity owns the animals that are being raised in a CAFO should be
sufficient to require the entity to be a joint permittee as a owner.
EPA believes that ownership of the animals establishes an ownership
interest in the pollutant generating
[[Page 3025]]
activity at the CAFO that is sufficient to hold the owner of the
animals responsible for the discharge of pollutants from the CAFO.
In non-CAFO parts of the NPDES regulations, the operator rather
than the owner is generally the NPDES permit holder. One reason an
owner is not required to get a permit is illustrated by an owner who
has leased a factory. When an owner leases a factory to the lessee-
operator, the owner gives up its control over the pollution-producing
activities. The owner of animals at a feedlot, on the other hand,
maintains all current interests in the animal and is merely paying the
contract grower to raise the animals for the owner. It is the owner's
animals that generate most of the manure and wastewater that is created
at a CAFO. Therefore, EPA believes that ownership of the animals may be
sufficient to create responsibility for ensuring that their wastes are
properly disposed of. This may be particularly true where manure must
be sent off-site from the CAFO in order to be properly disposed of.
EPA has previously identified situations where the owner should be
the NPDES permittee rather than, or in addition to, the contract
operator. In the context of municipal wastewater treatment plants, EPA
has recognized that the municipal owner rather than the contract
operator may be the proper NPDES permittee where the owner maintains
some control over the plant.
If EPA selects this option, it might also clarify that ownership
could be determined by factors other than outright title to the
animals. This would prevent integrators from modifying their contracts
so that they do not own the animals outright. EPA could develop factors
for determining ownership such as the existence of an agreement to
purchase the animals at a fixed price together with the integrator
accepting the risk of loss of the animals prior to sale. EPA solicits
comments on whether such criteria are necessary and, if so, what
appropriate criteria would be.
Implementation of Co-Permitting. All permittees would be held
jointly responsible for ensuring that manure production in excess of
what can be properly managed on-site is handled in an environmentally
appropriate manner. The effluent guidelines proposes to require a
number of land application practices that will limit the amount of CAFO
manure that can be applied to a CAFO's land application areas. If the
CAFO has generated manure in excess of the amount which can be applied
consistent with its NPDES permit, the proposed NPDES regulations impose
a number of requirements on co-permittees, described in VII.D.4. See
proposed Sec. 122.23(j)(4). The co-permittees could also transfer their
excess manure to a facility to package it is as commercial fertilizer,
to an incinerator or other centralized treatment, to be transformed
into a value-added product, or to any other operation that would not
land apply the manure. EPA is proposing that manure that must leave the
CAFO in order to be properly managed not be considered within the
unique control of any of the entities with substantial operational
control over the CAFO. In fact, an integrator that owns the animals at
a number of CAFOs in an area which are producing manure in such volumes
that it cannot be properly land applied may be in a unique position to
be able to develop innovative means of compliance with the permit
limits. Today's proposal would specify that the disposition of excess
manure would remain the joint responsibility of all permit holders. See
proposed Sec. 122.23(i)(9). Integrators would thereby be encouraged to
ensure compliance with NPDES permits in a number of ways, including:
(a) establishing a corporate environmental program that ensures that
contracts have sound environmental requirements for the CAFOs; (b)
ensuring that contractors have the necessary infrastructure in place to
properly manage manure; and (c) developing and implementing a program
that ensures proper management and/or disposal of excess manure. The
proposed requirement will give integrators a strong incentive to ensure
that their contract producers comply with permit requirements and
subject them to potential liability if they do not. Integrators could
also establish facilities to which CAFOs in the area could transfer
their excess manure. EPA is further proposing to require co-permitted
entities to assume responsibility for manure generated at their
contract operations when the manure is transferred off-site.
EPA believes that integrators will want to make good faith efforts
to take appropriate steps to address the adverse environmental impacts
associated with their business. EPA is soliciting comments on how to
structure the co-permitting provisions of this rulemaking to achieve
the intended environmental outcome without causing negative impacts on
growers.
EPA also believes the proposal contains sufficient flexibility for
permit authorities to develop creative, and streamlined, approaches to
co-permitting. For example, a State might want to develop an NPDES
general permit in collaboration with a single integrator or,
alternatively, with all integrators in a geographic region (e.g.,
statewide, watershed, etc.). Such a general permit might require
integrators to assume responsibility for ensuring that their
contractors engage in proper management practices for excess manure. As
a condition of the NPDES general permit, the integrator could be
obligated to fulfill its commitment or to assume responsibility for
violations by its growers.
The proposed regulations would provide that a person is an
``operator'' when ``the Director determines'' that the person exercises
substantial operational control over the CAFO. EPA also considered
whether to delete the reference to a determination by the Director, so
that any person who exercised such control over a CAFO would be an
operator without the need for a determination by the Director. If EPA
were to eliminate the need for a determination before such a person may
be an ``operator,'' persons who may meet this definition would be less
certain in some cases as to whether they do in fact meet it. On the
other hand, if EPA retains the need for a determination by the
Director, then because of resource shortages or for other reasons, EPA
or the State might not be able to make these determinations in a timely
way, or might not make them at all in some cases. These persons would
therefore inappropriately be able to avoid liability even though they
are exercising substantial operational control of a CAFO. Accordingly,
EPA requests comments on whether the final rule should retain the need
for a determination by the Director of substantial operational control.
Finally, EPA solicits comment on whether to provide that, in authorized
States, either the Director or EPA may make the determination of
substantial operational control.
Additional Issues Associated With Co-Permitting. The option of co-
permitting integrators was discussed extensively by small entity
representatives (SERs) and by the Small Business Advocacy Review Panel
during the SBREFA outreach process. The SERs included both independent
and contract producers. A majority of SERs expressed opposition to such
an approach. They were concerned that co-permitting could decrease the
operator's leverage in contract negotiations with the corporate entity,
increase corporate pressure on operators to indemnify corporate
entities against potential liability for non-compliance on the part of
the operator, encourage corporate entities to interfere in the
operational management
[[Page 3026]]
of the feedlot in order to protect against such liability, provide an
additional pretext for corporate entities to terminate a contract when
it was to their financial advantage to do so, restrict the freedom of
operators to change integrators, and generally decrease the profits of
the operator. These SERs were not convinced that co-permitting would
result in any benefit to the environment, given that the operator
generally controls those aspects of a feedlot's operations related to
discharge, nor were they convinced that such an approach would result
in additional corporate resources being directed toward environmental
compliance, given the integrator's ability to pass on any additional
costs it might incur as a result of co-permitting to the operator. A
few SERs, who were not themselves involved in a contractual
relationship with a larger corporate entity, favored co-permitting as a
way of either leveling the playing field between contact and
independent operators, or extracting additional compliance resources
from corporate entities. Despite general concern over co-permitting due
to the economic implications for the contractor, several SERs voiced
their support for placing shared responsibility for the manure on the
integrators, especially in the swine sector.
The Panel did not reach consensus on the issue of co-permitting. On
the one hand, the Panel shared the SER's concern that co-permitting not
serve as a vehicle through which the bargaining power and profits of
small contract growers are further constrained with little
environmental benefit. On the other, the Panel believed that there is a
potential for environmental benefits from co-permitting. For example,
the Panel noted (as discussed above), that co-permitted integrators may
be able to coordinate manure management for growers in a given
geographic area by providing centralized treatment, storage, and
distribution facilities, though the Panel also pointed out that this
could happen anyway through market mechanisms without co-permitting if
it resulted in overall cost savings. In fact, the Agency is aware of
situations where integrators do currently provide such services through
their production contracts. The Panel also noted that co-permitting
could motivate corporate entities to oversee environmental compliance
of their contract growers, in order to protect themselves from
potential liability, thus providing an additional layer of
environmental oversight.
The Panel also expressed concern that any co-permitting
requirements may entail additional costs, and that co-permitting can
not prevent these costs from being passed on to small operators, to the
extent that corporate entities enjoy a bargaining advantage during
contract negotiations. The Panel thus recommended that EPA carefully
consider whether the potential benefits from co-permitting warrant the
costs, particularly in light of the potential shifting of these costs
from corporate entities to contract growers. The Panel further
recommended that if EPA does propose any form of co-permitting, it
address in the preamble both the environmental benefits and any
economic impacts on small entities that may result and request comment
on its approach.
As discussed in Section VI, EPA estimates that 94 meat packing
plants that slaughter hogs and 270 poultry processing facilities may be
subject to the proposed co-permitting requirements. EPA expects that no
meat packing or processing facilities in the cattle and dairy sectors
will be subject to the proposed co-permitting requirements. Reasons for
this assumption are summarized in Section VI of this preamble.
Additional information is provided in Section 2 of the Economic
Analysis. EPA is seeking comment on this assumption as part of today's
notice.
EPA did not precisely estimate the costs and impacts that would
accrue to individual co-permittees. Information on contractual
relationships between contract growers and processing firms is
proprietary and EPA does not have the necessary market information and
data to conduct such an analysis. Market information is not available
on the number and location of firms that contract out the raising of
animals to CAFOs and the number and location of contract growers, and
the share of production, that raise animals under a production
contract. EPA also does not have data on the exact terms of the
contractual agreements between processors and CAFOs to assess when a
processor would be subject to the proposed co-permitting requirements,
nor does EPA have financial data for processing firms or contract
growers that utilize production contracts.
EPA, however, believes that the framework used to estimate costs to
CAFO does provide a means to evaluate the possible upper bound of costs
that could accrue to processing facilities in those industries where
production contracts are more widely utilized and where EPA believes
the proposed co-permitting requirements may affect processors. The
details of this analysis are provided in Section X..F.2. Based on the
results of this analysis, EPA estimates that the range of potential
annual costs to hog processors is $135 million to $306 million ($1999,
pre-tax). EPA estimates that the range of potential annual costs to
broiler processors as $34 million to $117 million. EPA is soliciting
comment on this approach.
This approach does not assume any addition to the total costs of
the rule as a result of co-permitting, yet it does not assume that
there will be a cost savings to contract growers as result of a
contractual arrangement with a processing firm. This approach merely
attempts to quantify the potential magnitude of costs that could accrue
to processors that may be affected by the co-permitting requirements.
Due to lack of information and data, EPA has not analyzed the effect of
relative market power between the contract grower and the integrator on
the distribution of costs, nor the potential for additional costs to be
imposed by the integrator's need to take steps to protect itself
against liability and perhaps to indemnify itself against such
liability through its production contracts. EPA has also not
specifically analyzed the environmental effects of co-permitting.
EPA recognizes that some industry representatives do not support
assumptions of cost passthrough from contract producers to integrators,
as also noted by many small entity representatives during the SBREFA
outreach process as well as by members of the SBAR Panel. These
commenters have noted that integrators have a bargaining advantage in
negotiating contracts, which may ultimately allow them to force
producers to incur all compliance costs as well as allow them to pass
any additional costs down to growers that may be incurred by the
processing firm. EPA has conducted an extensive review of the
agricultural literature on market power in each of the livestock and
poultry sectors and concluded that there is little evidence to suggest
that increased production costs would be prevented from being passed on
through the market levels. This information is provided in the docket.
EPA requests comments on its cost passthrough assumptions in
general and as they relate to the analysis of processor level impacts
under the proposed co-permitting requirements. EPA will give full
consideration to all comments as it decides whether to include the
proposed requirement for co-permitting of integrators in the final
rule, or alternately whether to continue to allow this decision to be
made on a case-by-case basis by local permit writers. Several other
alternatives to co-permitting are discussed below. EPA
[[Page 3027]]
also requests comment on how to structure the co-permitting provisions
of the rule making to achieve the intended environmental outcome
without causing negative impacts on growers, should it decide to
finalize them.
Alternatives to Co-Permitting. EPA also considered alternative
approaches under which EPA would waive the co-permitting requirement
for States and processors that implement effective programs for
managing excess manure and nutrients. One such approach would require
the disposition of manure that is transported off-site to remain the
joint responsibility of the processor and other permit holders, unless
an enforceable state program controls the off-site land application of
manure. For example, if the State program addressed the off-site land
application of manure with PNP development and implementation
requirements that are equivalent to the requirements in 40 CFR
412.13(b)(b) and 122.23(j)(2), it would not be necessary to permit the
processor in order to ensure the implementation of those requirements.
Another approach would be based on whether the processor has
developed an approved Environmental Management System (EMS) that is
implemented by all of its contract producers and regularly audited by
an independent third party. EPA anticipates that the alternative
program would be designed to achieve superior environmental and public
health outcomes by addressing factors beyond those required in this
proposed regulation, such as odor, pests, etc. The following section
describes the principles of such a system.
Environmental Management System as Alternative to Co-Permitting. An
increasing number of organizations, in both the private and public
sector, are using environmental management systems (EMS) as a tool to
help them not only comply with environmental legal requirements, but
also address a full range of significant environmental impacts, many of
which are not regulated. Environmental management systems include a
series of formal procedures, practices, and policies that allow an
organization to continually assess its impacts on the environment and
take steps to reduce these impacts over time, providing an opportunity
and mechanism for continuous improvement. EMSs do not replace the need
for regulatory requirements, but can complement them and help
organizations improve their overall environmental performance. EPA
supports the adoption of EMSs that can help organizations improve their
compliance and overall performance and is working with a number of
industries to help them adopt industry-wide EMS programs.
Under this alternative, EPA would not require a processor to be co-
permitted with their producers if the processor has developed, in
conjunction with its contract producers, an EMS program that is
approved by the permit authority and EPA, including opportunities for
review and comment by EPA and the public. The EMS would identify the
environmental planning and oversight systems, and critical management
practices expected to be implemented by all of the processors' contract
growers. Independent third-party auditors annually would verify
effective implementation of the EMS to the permit authority and
integrator. If a processor agreed to implement such a program, and then
one or more of its contract producers failed to meet these
requirements, the processor would remove animals from the contract
producers farm, in a time and manner as defined in the approved EMS,
and not supply additional animals until the contract producer is
certified as being in compliance with the EMS by the third party
auditor. Once the animals have been removed, processors would not
continue contractual relationships with producers not capable or
willing to meet the minimum requirements of the EMS. Processors who
fail the independent audit would be required to apply for an NPDES
permit or be included as a co-permittee on contract producers' permits.
Each permitted facility's EMS would also require that programs be
in place to ensure that it remained in compliance with its NPDES permit
(if a permitted facility). For all contractors, the EMS would address
all activities that could have a significant impact on the environment,
including activities not subject to this proposed regulations. These
best management practices could be adapted to meet the particular needs
of individual States, as appropriate.
To ensure consistency, contract growers and the processor would be
required to be annually audited by an independent third party. The
permit authority would be expected to develop criteria for the audit,
including what constitutes acceptable implementation of the EMS by both
contract producers and the processor. Such an EMS would require
contract producers to comply with their NPDES permit (if a permitted
facility) and to implement the terms of the EMS that address manure
management as well as other unregulated impacts like odor, pests, etc.
Contract producers would need to employ specific Best Management
Practices (BMPs) when addressing unregulated impacts and maintain
specific records on their use. BMPs could be adapted to meet the needs
of a particular state or region.
The EMS would be required to be consistent with guidance developed
by the processor and approved by the permit authority and EPA.
Processors would assume responsibility for developing, in conjunction
with contract producers, the proposed EMS as well as the proposed third
party auditing guidance, which would be subject to approval by the
permit authority and EPA. Further, the processors would facilitate
implementation by their producers through training and technical
assistance.
Each facility's EMS would be required to successfully complete an
audit conducted by an independent third party organization approved by
the permit authority. Facilities would also be subject to annual follow
up audits designed to determine if the EMS was in place and being
adequately implemented. Contractors would not continue contractual
relationships with producers that did not remain in compliance and did
not continue to adequately implement their EMSs, as determined by
annual third party follow-up audits.
Each processor would be required to seek input from local
stakeholders as it developed and implemented its EMS. Further,
information about EMS implementation, including audit results, would be
publicly available.
Because geographic areas tend to be dominated by few processors,
contract growers tend to have limited choice in selecting with whom to
have a production contract. Thus, EPA expects that processors would
provide economic and technical assistance to help contract producers
implement the EMS.
EPA sees potential benefits to this type of approach. Besides
giving processors an incentive to develop regional approaches to
managing excess manure nutrients from CAFO generated manure, it would
involve the processors in ensuring that permittees meet their permit
requirements, thus relieving burden on the resources of permit
authorities and EPA. Further, an EMS goes beyond what NPDES requires,
in that it addresses issues beyond the scope of this rulemaking, such
as odor, pests, etc., and, most important, it will address manure
generated by all CAFOs as well as all AFOs under contract with the
processors. Finally, this approach will provide local stakeholders with
important information about the operations of producers and give these
[[Page 3028]]
stakeholders meaningful opportunities to provide input to the facility
on its operations throughout the permitting and EMS development
process.
On the other hand, an EMS approach could be more difficult to
administer and enforce. Some also question whether it would be
appropriate to impose the requirements of an EMS on independent growers
or AFO operators who trade with the processors, but who are not subject
to this regulation. Further, it could be a concern that a producer
might, seemingly arbitrarily, refuse resources to assist with
implementing the EMS, and then subsequently withholding animals from
the grower and effectively terminating the contract.
EPA solicits comment on whether EPA should provide an option for
States to develop an alternative program for addressing excess manure
in lieu of requiring co-permitting. EPA also requests comment on the
EMS concept described in detail in this proposal.
6. How Does EPA Propose To Regulate Point Source Discharges at AFOs
That Are Not CAFOs?
EPA is proposing to clarify in today's proposed rulemaking that all
point source discharges from AFOs are covered by the NPDES regulations
even if the facility is not a CAFO (except for certain discharges
composed entirely of storm water, as discussed below). See proposed
Sec. 122.23(g).
The definition of point source in the CWA and regulations lists
both discrete conveyances (such as pipes and ditches) and CAFOs. CWA
Sec. 502(14); 40 CFR 122.2. EPA wants to confirm as explicitly as
possible that the NPDES regulatory program applies to both types of
discharges. Thus, where an AFO is not a CAFO (either because it has not
met the definition criteria or has not been designated) discharges from
the AFO are still regulated as point source discharges under the NPDES
program if the discharge is through a discrete conveyance that would
qualify itself as a point source. An AFO is not excluded from the NPDES
regulatory program altogether simply because it is not a CAFO. That is,
if an AFO has a point source discharge through a pipe, ditch, or any
other type of discernible, confined and discrete conveyance, it is
subject to NPDES requirements just the same as any other facility that
has a similar point source discharge and that is not an AFO.
Today's proposal would clarify that, even though an AFO is not a
CAFO, an AFO may nevertheless require an NPDES permit due to discharges
from a point source at the facility. See proposed Sec. 122.23(g). More
specifically, under existing regulation and today's proposal, an AFO
may be subject to regulation under the Clean Water Act in any of the
following ways:
(1) Non-storm water discharges. A non-storm water discharge of
pollutants from a point source, such as a ditch, at the production area
or land application area of an AFO, into waters of the U.S. is a
violation of the CWA unless the owner or operator of the facility has
an NPDES permit for the discharge from that point source (as discussed
further below); or
(2) Storm water discharges. A discharge from a point source, such
as a ditch, at the land application area of an AFO that does not
qualify for the agricultural storm water discharge exemption may be
designated as a regulated storm water point source under
Sec. 122.26(a)(1)(v), and, therefore, require an NPDES permit. The
agricultural storm water exemption is discussed further in the
following section D; or
(3) Discharge as a CAFO. An AFO may be designated as a CAFO and,
therefore, require an NPDES permit on that basis (as discussed in the
section on designation).
In addition to listing ``physical'' conveyances (such as pipes and
ditches), the definition of point source in the CWA and EPA's
regulations identifies CAFOs as a point source. CWA Sec. 502(14); 40
CFR 122.2. Because all CAFOs are point sources, even surface run off
from a CAFO that is not channelized in a discrete conveyance is
considered a point source discharge that is subject to NPDES permit
requirements. AFOs, on the other hand, are not defined as point
sources. Because of that, under today's proposal, AFOs will be subject
to NPDES permitting requirements if they have a point source discharge
including under the circumstances described above.
First, today's proposal states clearly that an AFO which has a
discharge of pollutants through a point source, such as a pipe or
ditch, at either the production area or the land application area, to
the waters of the United States which is not the direct result of
precipitation is in violation of the Clean Water Act. See proposed
Sec. 122.23(g). The existing regulations are silent and some AFO
operators have argued that none of their discharges can be considered
point source discharges unless their AFO is defined or designated as a
CAFO under 40 CFR 122.23. Today's proposal would make it clear that
certain discharges at AFOs are subject to NPDES requirements and no
designation by the permitting authority is required. For example, if
the operator of an AFO with less than 500 animal units (in the two-tier
structure) or less than 300 animal units (in the three-tier structure)
empties its lagoon via a pipe directly into a stream without an NPDES
permit, that would be a violation of the Clean Water Act.
Second, today's proposal clarifies that a storm water discharge
composed entirely of storm water from a point source at the land
application area of an AFO into waters of the U.S. requires an NPDES
permit if: (1) the discharge does not quality for the agricultural
storm water discharge exemption, discussed below; and (2) it is
designated as a regulated storm water point source. Generally, all
point source discharges are prohibited unless authorized by an NPDES
permit. Section 402(p) of the Clean Water Act exempts certain storm
water discharges from that general prohibition. Section 402(p)(2)(E)
and the EPA regulations that implement Section 402(p)(6) provide for
regulation of unregulated point sources on a case by case basis upon
designation by EPA or the State permitting authority (40 CFR
122.26(a)(1)(v)).
EPA considered proposing that only 40 CFR 122.23 may be used to
designate an AFO based on discharges from its land application area.
Designation as a CAFO, however, could unnecessarily subject the AFO's
production area to NPDES permit requirements. Also, because the land
application area of third party applicators of manure may be designated
using 122.26(a)(1)(v), EPA is proposing that AFO controlled land
application areas could also be designated under that section, even if
the AFO has not been designated as a CAFO. AFOs may be required to get
a permit based on storm water discharges from their production areas
only if they have been designated as a CAFO under Sec. 122.23.
An AFO operator is not required to obtain a permit for a point
source discharge at the land application area which consists entirely
of storm water, and which does not qualify for the agricultural storm
water discharge exemption, unless the point source has been designated
under 40 CFR 122.26(a)(1)(v). A discharge consists entirely of storm
water if it is due entirely to precipitation. It may include incidental
pollutants that the storm water picks up while crossing the facility.
The discharge would not consist entirely of storm water if, for
example, a non-storm water (e.g., process waste water) discharge occurs
during the storm and is mixed with the storm water. Once a permit
authority has determined that a point source
[[Page 3029]]
discharge from the land application area of an AFO is not composed
entirely of storm water and does not qualify for the agricultural storm
water discharge exemption, the permit authority may designate that
point source as a regulated storm water point source if the permit
authority further determines under 40 CFR 122.26(a)(1)(v) that the
discharge contributes to a violation of a water quality standard or is
a significant contributor of pollutants to waters of the U.S.
Designation under Sec. 122.26 is separate from the designation of
an operation as a CAFO. The criteria for designation as a CAFO based on
discharges from either the land application or the production area are
discussed above in C.4.
D. Land Application of CAFO-generated Manure
1. Why Is EPA Regulating Land Application of CAFO-generated Manure?
As discussed in Section IV.B of this preamble, agricultural
operations, including animal production facilities, are considered a
significant source of water pollution in the United States. The
recently released National Water Quality Inventory indicates that
agriculture is the leading contributor of identified water quality
impairments in the nation's rivers and streams, as well as in lakes,
ponds, and reservoirs. Agriculture is also identified as a major
contributor to identified water quality impairments in the nation's
estuaries.
Pollutant discharges from CAFOs arise from two principal routes.
The first route of discharges from CAFOs is from manure storage or
treatment structures, especially catastrophic failures, which cause
significant volumes of often untreated manure and wastewater to enter
waters of the U.S. resulting in fish kills. The second route of
pollutant discharges is from the application of manure to land, usually
for its fertilizer value or as a means of disposal. Additional
information on how pollutants from CAFOs reach surface waters is
provided in Section V.B of this document and in the rulemaking record.
The proposed regulation seeks to improve control of discharges that
occur from land applied manure and wastewater. Analysis conducted by
USDA indicates that, in some regions, the amount of nutrients present
in land applied manure has the potential to exceed the nutrient needs
of the crops grown in those regions. Actual soil sample information
compiled by researchers at various land grant universities provides an
indication of areas where there is widespread phosphorus saturation.
Other research by USDA documents the runoff potential of land applied
manure under normal and peak precipitation. Furthermore, research from
a variety of sources indicates that there is a high correlation between
areas with impaired lakes, streams and rivers due to nutrient
enrichment and areas where there is dense livestock and poultry
production. This information is documented in the Technical Development
Document. Additional information is available in the Environmental
Assessment of the Proposed Effluent Limitations Guidelines for
Concentrated Animal Feeding Operations and other documents that support
today's rulemaking.
2. How Is EPA Interpreting the Agricultural Storm Water Exemption With
Respect to Land Application of CAFO-generated Manure?
Today, EPA is proposing to define the term ``agricultural
stormwater discharge'' with respect to land application of manure and
wastewater from animal feeding operations. Section 502(14) of the Clean
Water Act excludes ``agricultural stormwater discharges'' from the
definition of the term point source. The Clean Water Act does not
further define the term, and the Agency has not formally interpreted
it. Under today's proposal, an ``agricultural stormwater discharge''
would be defined as ``a discharge composed entirely of storm water, as
defined in 40 CFR 122.26(a)(13), from a land area upon which manure
and/or wastewater from an animal feeding operation or concentrated
animal feeding operation has been applied in accordance with proper
agricultural practices, including land application of manure or
wastewater in accordance with either a nitrogen-based or, as required,
a phosphorus-based manure application rate.'' Sec. 122.23(a)(1).
The CWA defines a point source as: ``any discernible, confined and
discrete conveyance, including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may be discharged. The
term does not include agricultural stormwater discharges and return
flows from irrigated agriculture.'' 33 U.S.C. Sec. 1362(14).
Congress added the exemption from the definition of point source
for ``agricultural stormwater discharges'' in the Water Quality Act of
1987. There is limited legislative history for this provision; Congress
simply stated that the ``provision expands the existing exemption for
return flows from irrigated agriculture to include agricultural
stormwater discharges.'' Legislative History of the Water Quality Act
of 1987, 100th Cong., 2d. Sess. at 538 (1988).
The courts have found that the EPA Administrator has the discretion
to define point and nonpoint sources. NRDC v. Costle, 568 F.2d 1369,
1382 (D.C. Cir. 1977). EPA is proposing to exercise that discretion by
defining the exemption for ``agricultural stormwater discharges'' to
include only those discharges that (1) are composed entirely of storm
water; and, (2) occur only after the implementation of proper
agricultural practices.
EPA believes the first component is clear on the face of the
statute. Only discharges that result from precipitation can qualify for
an agricultural storm water discharge exemption. Therefore, the
addition of pollutants as a result of a discharge from a point source
to waters of the United States that is not due to precipitation is a
violation of the Clean Water Act (except in compliance with an NPDES
permit). For example, the application of CAFO manure onto a field in
quantities that are so great that gravity conveys the manure through a
ditch even in dry weather into a nearby river would not be eligible for
the exemption for agricultural storm water discharges. Furthermore, it
is possible for a discharge to occur during a precipitation event yet
not be considered to be ``composed entirely of stormwater.'' As the
Second Circuit found, a discharge during a storm could be ``primarily
caused by the over-saturation of the fields rather than the rain and *
* * sufficient quantities of manure were present so that the run-off
could not be classified as ``stormwater'.'' CARE v. Southview Farms, 34
f. 3d 114,121 (Sept. 2, 1994).
Second, EPA is proposing that to be eligible for the exemption for
agricultural storm water, any addition of manure and/or wastewater to
navigable waters must occur despite the use of proper agricultural
practices. EPA interprets the statute to reflect Congress' intent not
to regulate additions of manure or wastewater that are truly
agricultural because they occur despite the use of proper agricultural
practices. Application of manure or wastewater that is not consistent
with proper rates and practices such that there are adverse impacts on
water quality would be considered waste disposal rather than
agricultural usage. In today's action, EPA is proposing to interpret
the term ``proper agricultural practices'' to incorporate the concept
of protecting
[[Page 3030]]
water quality. This is consistent with USDA's Technical Guidance for
Developing Comprehensive Nutrient Management Plans, which states that:
``[t]he objective of a CNMP is to provide AFO owners/operators with a
plan to manage generated nutrients and by-products by combining
conservation practices and management activities into a system that,
when implemented, will protect or improve water quality.'' EPA believes
that proper agricultural practices do encompass the need to protect
water quality. While EPA recognizes that there may be legitimate
agricultural needs that conflict with protecting water quality in some
instances, EPA believes that its proposed definition of proper
agricultural practices strikes the proper balance between these
objectives. Since one focus of agricultural management practices,
whether through guidance or regulation, at the state or federal level,
is the minimization of water quality impacts, and since this is of
particular concern to EPA, the Agency is proposing a definition of
``agriculture'' for Clean Water Act purposes which would be flexible
enough so that an assessment of the actual impacts of a discharge of
animal waste on a specific waterbody could be factored in. Today's
proposal identifies the proper agricultural practices which land
appliers seeking to qualify for the agricultural storm water discharge
exemption would need to implement. In addition, if a permit authority
determined that despite the implementation of the practices identified
in today's proposal, discharges from the land application area of a
CAFO were having an impact on water quality, the permit writer would
need to impose additional agricultural practice requirements to
mitigate such impacts. Only discharges that occur despite the
implementation of all these proper agricultural practices would be
considered ``agricultural stormwater discharges'' and be eligible for
the exemption. EPA requests comment on this interpretation of the
agricultural storm water exemption and on the proposal to define proper
agricultural practice.
For CAFOs which land apply their manure, the Agency is proposing to
require that owners or operators implement specific agricultural
practices, including land application of manure and wastewater at a
specified rate, development and implementation of a Permit Nutrient
Plan, a prohibition on the application of CAFO manure or wastewater
within 100 feet of surface water, and, as determined to be necessary by
the permit authority, restrictions on application of manure to frozen,
snow covered or saturated ground. See proposed Secs. 412.31(b) and
412.37; Sec. 122.21(j). The Agency is proposing to require these
specific agricultural practices under its CWA authority both to define
the scope of the agricultural storm water discharge exemption and to
establish the best available technology for specific industrial
sectors. Given the history of improper disposal of CAFO waste and
Congress' identification of CAFO's as point sources, the Agency
believes it should clearly define the agricultural practices which must
be implemented at CAFOs.
EPA considered limiting the scope of the proper agricultural
practices necessary to qualify for the agricultural storm water
discharge exemption to those specified in the effluent guideline and
NPDES regulations with no flexibility for the permit authority to
consider additional measures necessary to mitigate water quality
impacts. EPA chose not to propose this option because EPA was concerned
that permit authorities would then be unable to include any additional
permit conditions necessary to implement Total Maximum Daily Loads in
impaired watersheds. EPA seeks comment on this option and other ways to
address this concern.
The Agency is proposing to allow AFO owners or operators who land
apply manure (either from their own operations or obtained from CAFOs)
and more traditional, row crop farmers who land apply manure obtained
from CAFOs to qualify for the agricultural storm water exemption as
long as they are applying manure and wastewater at proper rates. As
discussed in VII.B, under one of today's co-proposed options, CAFOs
that transfer manure to such recipients would be required to obtain a
letter of certification from the recipient land applier that the
recipient intends to determine the nutrient needs of its crops based on
realistic crop yields for its area, sample its soil at least once every
three years to determine existing nutrient content, and not apply the
manure in quantities that exceed the land application rates calculated
using either the Phosphorus Index, Phosphorus Threshold, or Soil Test
Phosphorus method as specified in 40 CFR 412.13(b)(1)(iv). For purposes
of the CAFO's permit, recipient land appliers need not implement all of
the proper agricultural practices identified above which CAFOs would be
required to implement at their own land application areas. EPA believes
that this proposal enables the Agency to implement Congress' intent to
both exclude truly agricultural discharges due to storm water and
regulate the disposition of the vast quantities of manure and
wastewater generated by CAFOs.
EPA considered defining the agricultural storm water discharge
exemption for non-CAFO land appliers to apply only to those discharges
which occurred despite the implementation of all the practices required
by today's proposal at CAFO land application areas. EPA could require a
more comprehensive set of practices for land appliers of CAFO manure
and wastewater to qualify for the agricultural storm water discharge
exemption. Under any definition of proper agricultural practices, a
recipient who failed to implement the required practices and had a
discharge through a point source into waters of the U.S. could be
designated as a regulated storm water point source. However, that
recipient would not be vulnerable to enforcement under the Clean Water
Act for discharges prior to designation, and could only be designated
as a point source if the permitting authority (or EPA in authorized
States) found that the conditions of 40 CFR 122.26(a)(1)(v) were met.
See discussion below. EPA is requesting comment on this option.
Whether a discharger (who would otherwise be ineligible for the
agricultural storm water discharge exemption) is subject to the Clean
Water Act permitting requirements varies, because of the complex
interaction among the agricultural storm water discharge exemption, the
definition of ``point source,'' and other storm water discharge
provisions. The next sections clarify EPA's intentions with regard to
such regulation.
3. How is EPA Proposing To Regulate Discharges From Land Application of
CAFO-generated Manure by CAFOs?
In today's action, EPA is proposing that the entire CAFO operation
(e.g. the feedlot/production area and the land application areas under
the operational control of a CAFO owner or operator) is subject to the
revised effluent limitations guideline and the revised NPDES permitting
regulation. See proposed Sec. 122.23(a)(2). Also, as discussed above,
EPA is proposing to interpret the CWA to allow CAFO land application
areas to be eligible for the agricultural storm water discharge
exemption. However, unless the CAFO could demonstrate that it has
absolutely no potential to discharge from the production area and the
land application area, the facility would be required to apply for an
NPDES permit.
[[Page 3031]]
See proposed Sec. 122.23(e). While EPA is proposing to interpret the
terms of the statute such that CAFOs may qualify for the agricultural
storm water exemption, EPA is also proposing that such CAFOs must apply
for a permit even if the CAFO's only discharges may potentially qualify
for the agricultural storm water discharge exemption. EPA is proposing
such a requirement because it has the authority to regulate point
source discharges and any discharge from the land application area of a
CAFO which is not agricultural storm water is subject to the Clean
Water Act. EPA believes that the only way to ensure that all
nonagricultural, and therefore point source, discharges from CAFOs are
permitted is to require that CAFOs apply for NPDES permits which will
establish effluent limitations based on proper agricultural practices.
As noted above, the CWA explicitly defines the term ``point
source'' to include CAFOs, and explicitly excludes agricultural storm
water discharges. In today's action, EPA is attempting to interpret
both provisions in a way that establishes meaningful controls over a
significant source of pollution in our Nation's waters. EPA is
proposing to interpret the definition of ``point source'' such that the
exclusion of ``agricultural stormwater discharges'' may be an exclusion
from any and all of the conveyances listed in the definition of ``point
source,'' including ``concentrated animal feeding operations.'' The
production area of the CAFO would continue to be ineligible for the
agricultural storm water discharge exemption because it involves the
type of industrial activity that originally led Congress to single out
concentrated animal feeding operations as point sources. However, the
land application areas under the operational control of the CAFO, where
CAFO manure or wastewater is appropriately used as a fertilizer for
crop production, appear to have the kind of agricultural activity that
Congress intended to exempt. Consequently, EPA proposes to interpret
the CWA so that its authority to regulate discharges of CAFO manure due
to precipitation from land application areas is used in a way that
ensures that any discharge is the result of agricultural practices. Any
such discharges would be from the CAFO and, therefore, no separate,
confined and discrete conveyance need be present.
Under today's proposal, permit writers would establish effluent
limits for land application areas in the form of rates and practices
that constitute proper agricultural practices to the extent necessary
to fulfill the requirements of the effluent guidelines or based on BPJ,
as well as to the extent necessary to ensure that a CAFO's practices
are agricultural in that they minimize the operation's impact on water
quality.
As noted above, EPA believes the statute does not directly address
the interaction between the specific listing of ``concentrated animal
feeding operations'' and the specific exemption of ``agricultural
stormwater discharges'' in the definition of ``point source.'' While
EPA is proposing to interpret the Act to allow the land application
areas of CAFOs to be eligible for the agricultural storm water
discharge exemption, EPA is considering an interpretation of the Act
under which all additions of pollutants associated with CAFOs could be
regulated as ``point source'' discharges, and, thus, the agricultural
storm water exemption would never apply to discharges from a CAFO. By
singling out ``concentrated animal feeding operations,'' a far more
specific conveyance reference compared to the other, more general,
terms in the definition of ``point source'' (such as ``ditch,''
``channel,'' and ``conduit''), Congress may have intended the addition
of pollutants to waters of the United States from these facilities to
be considered ``industrial'' and not ``agricultural'' discharges. As
such, the tremendous amount of manure and wastewater generated by CAFOs
could be considered industrial waste. Thus, any discharge, even if
caused by storm water after land application of the manure could be
considered a discharge ``associated with industrial activity'' under
the statute's storm water discharge provisions.
EPA is soliciting comments on four additional approaches under
which the agricultural storm water exemption would not apply to CAFOs.
Each of these approaches would require that all CAFO permits restrict
discharges from land application sites to the extent necessary to
prevent them from causing or contributing to a water quality
impairment.
First, EPA is soliciting comment on an alternate approach that
would regulate CAFO waste as ``process waste'' that is not eligible for
the agricultural storm water exemption, when it is applied on land that
is owned or controlled by the CAFO owner or operator, because it is
industrial process waste and therefore not agricultural. Any storm
water associated discharges would be regulated under the existing storm
water statutory provisions and EPA's implementing regulations. Under
that approach, in addition to the requirements in the proposed effluent
limitation guideline, the NPDES permit issued to the CAFO operator
would include any additional limitations necessary to protect water
quality.
Second, EPA solicits comment on classifying discharges from land
application sites as discharges regulated under ``Phase I'' of the
NPDES storm water program (CWA Section 402(p)(2)(B)). EPA's existing
storm water regulations already identify discharges from land
application sites that receive industrial wastes as a ``storm water
discharge associated with industrial activity.'' 40 CFR
122.26(b)(14)(v). Under the storm water regulation, EPA does not
currently interpret that category (i.e., storm water discharge
associated with industrial activity) to include land application of
CAFO manure because the Agency did not assess the cost of such
regulation when it promulgated the rule. With today's proposal,
however, EPA has calculated the cost of proper land application of
CAFO-generated manure and wastewater and could clarify that
precipitation-induced discharges from land application areas are
subject to the storm water discharge regulations. If EPA finalizes a
definition of CAFO which includes the land application area, then EPA
could also regulate any storm water discharges from CAFOs under its
existing regulations as a storm water discharge associated with
industrial activity because facilities subject to storm water effluent
guidelines are considered to be engaging in ``industrial activity.'' 40
CFR 122.26 (b)(14)(i). EPA would have to conclude that no discharges
from CAFO land application areas qualify for the agricultural storm
water discharge exemption, even discharges which occur despite
implementation of proper agricultural practices.
Third, EPA could consider discharges from the CAFO's land
application area to be discharges of ``process wastewater,'' and,
therefore, not ``composed entirely of stormwater,'' rendering the
statutory storm water provisions entirely inapplicable. Under this
alternate interpretation of the statutory terms, NPDES permit
provisions for the CAFO, including both the production area and the
land application area, could include both technology-based limits and
any necessary water quality-based effluent limits.
Fourth, EPA could clarify that once a facility is required to be
permitted because it is a CAFO, the agricultural storm water discharge
exemption no longer applies to the land application area subject to the
permit. Thus, all permit conditions, including a water
[[Page 3032]]
quality-based effluent limitation, could be required on both the
production area and the land application area.
EPA is also requesting comment on whether the land application
practices established under the effluent guidelines will be sufficient
to ensure that there will be little or no discharge due to
precipitation from CAFO land application areas. If there were no such
discharges, then EPA wouldn't need to adopt any of the four alternative
approaches described above, because the effluent guidelines
requirements would protect water quality. If there would be significant
run-off even when manure is applied in accordance with agricultural
practices, EPA is requesting comment on the extent and the potential
adverse water quality impacts from that increment.
4. How is EPA Proposing to Regulate Land Application of Manure and
Wastewater by non-CAFOs?
In some instances, CAFO owners or operators transport their manure
and/or wastewater off-site. If off-site recipients land apply the CAFO-
generated manure, they may be subject to regulation under the Clean
Water Act. In addition, AFOs may land apply their own manure and
wastewater, and they too may be subject to regulation under the Clean
Water Act. A land applier could be subject to regulation if: (1) its
field has a point source, as defined under the Act, through which (2) a
discharge occurs that is not eligible for the agricultural storm water
exemption, and (3) the land applier is designated on a case-by-case
basis as a regulated point source of storm water. 40 CFR
Sec. 122.26(a)(1)(v). EPA notes that under the three-tier structure, an
AFO with between 300 AU and 1,000 AU which has submitted a
certification that it does not meet any of the conditions for being
CAFO, and therefore does not receive an NPDES permit, would be
immediately subject to enforcement and regulation under the Clean Water
Act if it has a discharge which is not subject to the agricultural
storm water discharge exemption; EPA and the State do not need to
designate such a facility as either a CAFO or as a regulated storm
water point source.
With this proposal, EPA intends to give effect to both the
agricultural storm water discharge exemption and the other storm water
provisions of the Clean Water Act by subjecting to regulation a non-
CAFO land applier of AFO and/or CAFO-generated manure and wastewater
only if: (1) the discharge is not eligible for the agricultural storm
water discharge exemption (which, as discussed above, for AFOs and
other non-CAFO land appliers primarily consists of applying the manure
in accordance with proper agricultural practice, including soil test, P
threshold, or Phosphorus Index methods); and (2) a conveyance at the
land applier's operation has been designated as a regulated storm water
point source. EPA emphasizes again that this regulatory approach is
relevant only to discharges which are composed entirely of storm water.
If it is not due to precipitation, a discharge of manure or wastewater
through a point source, such as a ditch, into the waters of the U.S.
need not be designated to be subject to enforcement and regulation
under the Clean Water Act, as discussed in Section VII.C.6 of today's
proposal.
In addition, the Director (or Regional Administrator) could
exercise his or her authority to designate such dischargers within a
geographic area as significant contributors of pollution to waters of
the United States. 40 CFR 122.26(a)(9)(i)(D). The geographic area of
concern could be a watershed which is impaired for the pollutants of
concern in CAFO waste. To do so, the Director (or Regional
Administrator) would need to identify the point source at each land
application area or provide a record for presuming that the land
application areas in that watershed have point sources, and the
designation would only apply to those that do.
As noted above, case-by-case designation of point sources at land
application areas which are not under the control of a CAFO owner or
operator can already occur under existing regulations. Under section
122.26(a)(1)(v), either the permitting authority or EPA may designate a
discharge which he or she determines contributes to a violation of a
water quality standard or is a significant contributor of pollutants to
waters of the U.S. EPA is soliciting comment on whether to clarify the
term ``significant contributor of pollutants'' for the purposes of
designating a discharge of manure and/or wastewater. If a land applier
is applying manure and/or wastewater such that he or she is not
eligible for the agricultural storm water discharge exemption and if
the receiving waterbody (into which there are storm water discharges
associated with manure and/or wastewater) is not meeting water quality
standards for a pollutant in the waste (such as phosphorus, nitrogen,
dissolved oxygen or fecal coliform), then EPA could propose that, by
regulation, such a discharge constitutes a ``significant contributor of
pollutants.'' For example, if a land applier is applying manure and/or
wastewater at a rate above the rate which qualifies the recipient for
the agricultural storm water discharge exemption, and if, due to
precipitation, waste runs off the land application area through a ditch
into a navigable water that is impaired due to nutrients, then the
permit authority may designate that point source as a regulated storm
water point source. The designee would then need to apply for an NPDES
permit or risk being subject to enforcement for unpermitted discharges.
EPA solicits comment on the proposed means of ensuring that manure
and wastewater from AFOs and CAFOs is used in an environmentally
appropriate manner, whether on-site at the CAFO or AFO or off-site
outside of the control of the CAFO operator.
E. What are the Terms of an NPDES Permit?
EPA is proposing to include several new requirements in the NPDES
permit for CAFOs. See proposed Sec. 122.23(i). As discussed in section
VIII on the proposed effluent guidelines, EPA is proposing to require
all CAFO operators to develop and implement a Permit Nutrient Plan,
which is a site-specific plan for complying with the effluent
limitations requirements contained in the NPDES permit. EPA is
proposing to require permit authorities to develop special conditions
for each individual or general NPDES permit that address: (1)
development of the allowable manure application rate; and (2) timing
and method for land applying manure. Permits would also include a
special condition that clarifies the duty to maintain permit coverage
until the facility is properly closed.
NPDES permits are comprised of seven sections: cover page; effluent
limitations; monitoring and reporting requirements; record keeping
requirements; special conditions; and standard conditions, discussed
below.
1. What is a Permit Nutrient Plan (PNP) and What is the difference
between USDA's CNMP and EPA's PNP?
EPA is proposing to require all CAFO operators to develop and
implement a Permit Nutrient Plan, or PNP. See proposed
Sec. 412.31(b)(1)(i)(iv) and Sec. 122.23(k)(4). The PNP is a site-
specific plan that describes how the operator intends to meet the
effluent discharge limitations and other requirements of the NPDES
permit. Because it is the primary planning document for determining
appropriate practices at the CAFO, EPA is also proposing to require
that it be developed, or reviewed and modified, by a certified planner.
The PNP must be developed within three months of submitting either a
notice of intent for coverage under an NPDES
[[Page 3033]]
general permit, or an application for an NPDES individual permit.
EPA is proposing to include a permit requirement for the CAFO to
develop and implement a PNP and modify it when necessary. EPA believes
this approach will maintain flexibility for modifications as the
agricultural practices of the CAFO change. PNPs are intended to be
living documents that are updated as circumstances change. Formal
permit modification procedures would not have to be followed every time
the PNP was modified.
As described in section VIII of today's proposed revisions to the
effluent guidelines, CAFO operators would be required to prepare a PNP
that establishes the allowable manure application rate for land
applying manure and wastewater, and that documents how the rate was
derived. The plan would also address other site-specific conditions
that could affect manure and wastewater application. It would also
describe sampling techniques to be used in sampling manure and soils,
as well as the calibration of manure application equipment, and would
describe operational procedures for equipment at the production area.
EPA is proposing to use the term ``Permit Nutrient Plan'' in
today's proposed regulation in order to have a separate and distinct
term that applies solely to the subset of activities in a CNMP that are
directly connected with the effluent guideline and NPDES permit
requirements, which are related to the best available technology
currently available. EPA expects that many CAFOs will satisfy the
requirement to develop a PNP by developing a Comprehensive Nutrient
Management Plan (CNMP). EPA recognizes that creating a new term has the
potential to create some initial confusion, and cause concern about
overlapping or duplicative requirements. However, EPA believes the term
PNP more clearly articulates to the regulated community the important
distinctions between the broad requirements of a CNMP and the more
specific effluent guideline requirements for a PNP.
EPA invites comment on today's proposal to define PNPs as the
subset of elements in the CNMP that are written to meet the effluent
guideline requirements. EPA is especially interested in knowing whether
PNP is the best term to use to refer to the regulatory components of
the CNMP, and whether EPA's explanation of both the differences and
relationship between these two terms (PNP and CNMP) is clear and
unambiguous.
In the Unified National Strategy for Animal Feeding Operations, EPA
and USDA agreed that the development and implementation of CNMPs was
the best way to minimize water quality impairment from confinement
facilities and land application of manure and wastewater. The Strategy
also articulated the expectation that all AFOs would develop and
implement CNMPs, although certain facilities (CAFOs) would be required
to do so while others (AFOs) would do so on a voluntary basis.
In December 2000, USDA published its Comprehensive Nutrient
Management Planning Technical Guidance (referred to here as the ``CNMP
Guidance''). Federal Register: December 8, 2000 (Volume 65, Number 237)
Page 76984-76985. The CNMP Guidance is intended for use by NRCS,
consultants, landowners/operators, and others that will either be
developing or assisting in the development of CNMPs. USDA published the
CNMP Guidance to serve only as a technical guidance document, and it
does not establish regulatory requirements for local, tribal, State, or
Federal programs. Rather, it is intended as a tool to support the
conservation planning process, as contained in the NRCS National
Planning Procedures Handbook. The objective of the CNMP technical
guidance is to identify management activities and conservation
practices that will minimize the adverse impacts of animal feeding
operations on water quality. The CNMP Guidance provides a list of
elements that USDA believes should be considered when developing a
CNMP. The strength of the CNMP Guidance is the breadth of conservation
practices and management activities that it recommends AFO operators
should consider.
Initially, it was EPA's expectation to simply adopt USDA's
voluntary program into its NPDES permitting program. However, by
intentionally avoiding establishing regulatory requirements and
limiting its role to that of technical guidance only, USDA's CNMP
Guidance lacks many of the details EPA believes are necessary to ensure
discharges of manure and other process wastewater are adequately
controlled and nutrients applied to agricultural land in an acceptable
manner. In addition, the CNMP Guidance addresses certain elements that
address aspects of CAFO operations that EPA will not include as a part
of the effluent guidelines and standards.
Nonetheless, it is important to ensure that the regulatory program
that would be established by the effluent guidelines and standards and
NPDES permit regulations proposed today is complementary to and
leverages the technical expertise of USDA with its CNMP Guidance,
rather than present CAFO operators with programs that they might
perceive as contradictory. EPA believes this goal will be accomplished
by the requirements being proposed today. EPA is proposing that CAFOs,
covered by the effluent guideline, develop and implement a PNP that is
narrower in scope than USDA's CNMP Guidance, but that establishes
specific actions and regulatory requirements.
One of the key differences between the effluent guideline PNP and
USDA's CNMP is the scope of elements included in each plan. USDA's CNMP
includes certain aspects that EPA does not require CAFO operators to
address within the regulatory program. For example, element 4.2.2.1 of
USDA's CNMP Guidance (``Animal Outputs--Manure and Wastewater
Collection, Handling, Storage, Treatment, and Transfer'') tells
operators that the CNMP should include insect control activities,
disposal of animal medical wastes, and visual improvement
considerations. Additionally, Element 4.2.2.1 of the CNMP Guidance
(``Evaluation and Treatment of Sites Proposed for Land Application'')
states the CNMP should identify conservation practices and management
activities needed for erosion control and water management. The
regulations (and PNP) being proposed today include no such requirement.
EPA is not including conservation practices which control erosion as
part of a PNP because erosion control is not needed on all CAFO
operations and because the costs associated with controlling erosion
would add $150 million dollars to the cost of this proposal. These
elements of a CNMP are, however, key components to protect water
quality from excessive nutrients and sediments. EPA solicits comment
and data on the costs and benefits of controlling erosion and whether
erosion control should be a required component of PNPs.
There are a number of elements that are addressed by both the CNMP
and PNP. Examples of common elements include soil and manure analyses
to determine nutrient content; calibration of application equipment;
developing nutrient budgets; and records of Plan implementation.
However, USDA's CNMP Guidance is indeed presented only as technical
guidance. The CNMP Guidance identifies a number of elements that AFOs
should consider, but there is no avenue for ensuring that AFOs
implement any management practices or achieve a particular performance
standard. In contrast,
[[Page 3034]]
EPA's proposed PNP would establish requirements for CAFOs that are
consistent with the technical guidance published by USDA experts, but
that go beyond that guidance by identifying specific management
practices that must be implemented.
For example, EPA is proposing the effluent guidelines to require
CAFOs to analyze soil samples at least once every three years, and
manure and lagoon samples at least annually. 40 CFR 412.37(a)(4)(ii).
The CNMP Guidance addresses such analyses, but imposes no mandatory
duty to perform such analyses, nor to conform to a particular
monitoring frequency. Given the degree to which overflows and
catastrophic failures of lagoons have been due to poor operation or
maintenance of manure storage structures, EPA is proposing to establish
specific requirements under Sections 308 and 402 that would: (1) More
precisely monitor lagoon levels to prevent overflows that could be
reasonably avoided; (2) require operators to periodically inspect the
structural integrity of manure handling and storage structures, and
expeditiously take corrective action when warranted; and (3) maintain
records to ensure the proper operation and maintenance of manure
handling and storage structures. USDA's CNMP Guidance establishes no
such requirements.
The regulations proposed today would also require permit
authorities to establish more specific requirements for application of
manure and wastewater to land, where appropriate, including: how the
CAFO operator is to calculate the allowable manure application rate;
when it is appropriate to apply manure to frozen, snow covered or
saturated land; and facility closure.
a. How are PNPs Developed and What is the Role of Certified
Specialists? Under today's proposed rule, CAFO owners and operators
would be required to seek qualified technical assistance for developing
PNPs to meet their effluent guidelines and NPDES permit requirements.
EPA is proposing that PNPs be developed, or reviewed and modified, by
certified planners. See proposed Sec. 412.31(b)(1)(ii).
Since PNPs are a defined subset of activities covered in CNMPs, as
described above, owners and operators are expected to take advantage of
the same technical assistance that is available for CNMP development,
including appropriate Federal agencies, such as the NRCS, State and
Tribal agricultural and conservation agency staff, Cooperative
Extension Service agents and specialists, Soil and Water Conservation
Districts, and Land Grant Universities. In addition, there are a
growing number of non-governmental sources of qualified technical
assistance, including integrators, industry associations, and private
consultants who are certified to develop CNMPs, as well as the defined
subset of activities covered in PNPs. In addition to the help of these
experts, a growing number of computer-based tools are either available
or under development to facilitate development and implementation of
CNMPs, and should be equally useful for PNPs.
Although CAFO owners and operators are ultimately responsible for
developing and implementing effective PNPs, EPA is today proposing that
PNPs be developed and/or reviewed and approved by a certified
specialist. A certified PNP specialist is a person who has a
demonstrated capability to develop CNMPs in accordance with applicable
USDA and State standards, as well as PNPs that meet the EPA effluent
guideline, and is certified by USDA or a USDA-sanctioned organization.
Certified specialists include qualified persons who have received
certifications through a State or local agency, personnel from NRCS,
certification programs recognized as third party vendors of technical
assistance, or other programs recognized by States. In addition, USDA
is now developing agreements with third-party vendors similar to the
1998 agreement with the Certified Crop Advisors (CCAs) and consistent
with NRCS standards and specifications (or State standards if more
restrictive). CCAs are expected to be available to provide technical
assistance to producers in nutrient management, pest management, and
residue management.
The purpose of using certified specialists is to ensure that
effective PNPs are developed and/or reviewed and modified by persons
who have the requisite knowledge and expertise to ensure that plans
fully and effectively address the need for PNPs that meet the minimum
effluent guideline requirements in the NPDES permit, and that plans are
appropriately tailored to the site-specific needs and conditions at
each CAFO.
EPA recognizes that some States already have certification programs
in place for nutrient management planning, and expects that the USDA
and EPA guidance for AFOs and CAFOs will provide additional impetus for
new and improved State certification programs. These programs provide
an excellent foundation for producing qualified certified specialists
for CNMPs, and can be modified relatively easily to include a special
module on how to develop an effective PNP as a defined subset of
activities in the CNMP. EPA expects that, as a result of experience
gained in the initial round of CAFO permitting under the existing
regulations (2000--2005), certification programs will be well equipped
to deal with both CNMPs and PNPs by the time today's regulations go
into effect and States begin issuing the next round of CAFO permits
that reflect these regulations. Thus, PNPs won't be expected to be
developed before 2005.
The issue of CNMP preparer requirements was also discussed by the
SERs and SBAR Panel during the SBREFA outreach process. (Note that at
that time, EPA was still using the term CNMP to apply to regulatory as
well as voluntary nutrient management plans.) Several SERs were
concerned that requiring the use of a certified planner could
significantly increase the cost of plan development, as well as limit
the operator's influence over the final product. These SERs felt that,
with adequate financial and technical assistance, they could write
their own plans and suggested that EPA work to facilitate such an
option through expanded training and certification of farmers and
provision of a user-friendly computer program to aid in plan
development.
The Panel recognized the need for plan preparers to have adequate
training to write environmentally sound plans, particularly for large
operations. However, the Panel also recognized the potential burden on
small entities of having to use certified planners, especially
considering the large number of AFOs and the limited number of
certified planners currently available. The Panel recommended that EPA
work with USDA to explore ways for small entities to minimize costs
when developing CNMPs, and indicated that EPA should continue to
coordinate with other Federal, State and local agencies in the
provision of low-cost CNMP development services and should facilitate
operator preparation of plans by providing training, guidance and tools
(e.g., computer programs). EPA indicated in the Panel Report that it
expected that many operations could become certified through USDA or
land grant universities to prepare their own CNMPs.
EPA is requesting comment on the proposal to require that PNPs be
developed, or reviewed and modified, by certified planners, and on ways
to structure this requirement in order to minimize costs to small
operators.
b. Submittal of Permit Nutrient Plan to the Permit Authority.--EPA
is proposing to require that applicants for
[[Page 3035]]
individual permits and operators of new facilities submitting notices
of intent for coverage under a general permit submit a copy of the
cover sheed and executive summary of their draft PNP to the permit
authority at the time of application or NOI submittal.
Sec. 122.21(i)(1)(iv) and 122.28(b)(2)(ii). Operators of existing
facilities seeking coverage under a general permit must submit a notice
of final PNP development within 90 days of seeking coverage, but are
not required to provide a copy of the PNP to the Permit Authority
unless requested. The reporting requirements, including the notice of
PNP development and notice of PNP amendment, are discussed in more
detail in section VII.E.3 below.
Initial installation of manure control technologies are
significantly less costly compared to retrofitting existing facilities,
and early development of a PNP will help to ensure that, when a new
facility is being designed, the operator is considering optimal control
technologies. In addition, in situations where individual permits are
warranted, the public interest demands early review of the PNP, rather
than waiting for its availability after the permit has been in effect
for some time.
EPA is requesting comment on the proposal to require new facilities
seeking coverage under a general permit, as well as applicants for
individual permits, to submit a copy of the cover sheet and executive
summary of their PNP to the permit authority along with the NOI or
permit application. EPA is further requesting comment on whether the
entire draft PNP should be submitted along with the NOI or permit
application.
EPA is further requesting comment on whether, for individual
permits, the PNP, in part or in its entirety, should be part of the
public notice and comment process along with the permit.
c. Availability of the Permit Nutrient Plan Information to the
Public.--EPA is proposing to require the operator of a permitted CAFO
to make a copy of the PNP cover sheet and executive summary available
to the public for review. The CAFO operator could choose to make this
information directly available to the public in any of several ways,
such as: (1) maintaining a copy of these documents at the facility and
making them available to the permit authority as publicly viewable
documents upon request; (2) maintaining a copy of these documents at
the facility and making them available directly to the requestor; (3)
placing a copy of them at a publicly accessible site, such as at a
public library; or (4) submitting a copy of them to the permit
authority. EPA is proposing that, if the operator has not made the
information available by other means, the permit authority would be
required, upon request from the public, to obtain a copy of the PNP
cover sheet and executive summary and make them available. It is
important to ensure that the public has access to this information,
which is needed to determine whether a CAFO is complying with its
permit, including the land application provisions.
EPA is also considering adding a provision in the final rule that
would state that all information in the PNP, not just the cover sheet
and executive summary, must be publicly available and cannot be claimed
as confidential business information. Some stakeholders have claimed
that all or a portion of the PNPs should be entitled to protection as
confidential business information (CBI). EPA does not believe that the
PNP cover sheet or executive summary would ever contain confidential
business information. The information in these two sections of the plan
is simply too general ever to be considered as CBI. However, EPA is
sensitive to the concerns of CAFOs that there may be information in the
remaining, more detailed portions of the PNP that is legitimately
proprietary to the CAFOs' businesses and that the permit authorities
should therefore protect. We therefore request comments on whether the
final rule should require the entire PNP to be publicly available, or
alternatively, whether the CAFO should be able to make a
confidentiality claim as to the remaining information in the PNP. Any
such claim of confidentiality would be governed by EPA's regulations at
40 CFR, Part 2 and relevant statutes.
There would be two bases on which EPA could base a determination
that no portion of the Permit Nutrient Plans would be entitled to CBI
status. First, CWA Section 402(j) states that ``[a] copy of each permit
application and each permit issued under this section shall be
available to the public.'' It may be that the PNPs that would be
required by today's proposal are properly viewed as a part of the
CAFO's NPDES permit. The permits would require each CAFO to develop and
carry out a PNP, as specified in the proposed Part 122 regulations. In
addition, today's proposed effluent limitations guidelines would
specify detailed requirements that PNPs must meet. Failure to develop
and properly carry out a PNP would be enforceable under each permit as
a permit violation. Therefore, for purposes of Section 402(j), EPA may
conclude that PNPs are properly viewed as a part of the permit or
permit application and, accordingly, must be available to the public.
EPA issued a ``Class Determination'' in 1978 that addresses this
issue. See ``Class Determination 1-78'' (March 22, 1978) (a copy of
which is in the public record for today's proposal). This Class
Determination addressed how to reconcile Section 402(j) of the Clean
Water Act with Section 308 of the Act. Section 308, which authorizes
EPA to collect information, states that information obtained under that
section shall be available to the public, except upon a showing
satisfactory to the Administrator that the information, if made public,
would divulge methods or processes entitled to protection as trade
secrets. Upon such a showing, the Administrator shall protect that
information as confidential. Section 308 makes an exception for
``effluent data,'' which is not entitled to such protection.
This Class Determination concludes that information contained in
NPDES permits and permit applications is not entitled to confidential
treatment because Section 402(j) mandates disclosure of this
information to the public, notwithstanding the fact that it might be
trade secrets or commercial or financial information. Referring to the
legislative history of the CWA, the Class Determination notes that
Congress sought to treat the information in permits and permit
applications differently from information obtained under Section 308.
It concludes that Congress intended Section 402(j) to be a disclosure
mandate in contrast to the basic approach of Section 308, which
provides protection for trade secret information. (Class Determination
at pp. 2-4.) Therefore, consistent with the Class Determination, if EPA
were to conclude that the PNPs are a part of the permit, the entire PNP
would be a public document that would not be entitled to
confidentiality protection.
A second basis for finding that PNPs must be available to the
public would be that, even apart from Section 402(j), the information
in PNPs may be ``effluent data'' and if so, also would not be entitled
to protection under Section 308. EPA's regulations define the term
``effluent data,'' among other things, as ``[i]nformation necessary to
determine the identity, amount, frequency, concentration, temperature,
or other characteristics (to the extent related to water quality) of
any pollutant which has been discharged by the source (or of any
pollutant resulting from any discharge from the source), or any
combination of the foregoing.'' 40 CFR 2.302(a)(2)(i). There is a
limited exception for information that is related to research and
development activities.
[[Page 3036]]
EPA believes that the information in PNPs may fit this definition of
``effluent data.'' The information in PNPs has direct bearing on the
amount of pollutants that may be discharged by a CAFO and on
characteristics of the pollutants that may be discharged (such as the
identity and presence of nutrients) that would be related to water
quality.
On the other hand, the Agency could conclude that the information
in the PNP is not part of the CAFO's permit. Each permit would indeed
require the CAFO to develop and carry out a PNP that is approved by a
certified specialist. Nevertheless, the CAFO will be developing the
terms of the final PNP, as well as periodic modifications to the PNP,
outside of the permitting process. It may be appropriate not to
consider the PNP to be part of the permit for purposes of section
402(j). If 402(j)--which states that all information in the permit must
be publicly available--is therefore not a relevant provision, then
whether PNPs could be protected as confidential would be determined
under section 308.
Section 308, as noted above, allows information to be protected as
CBI where the submitter can demonstrate the trade secret nature of the
information to the satisfaction of the Administrator, except that
``effluent data'' is never confidential. EPA could find that the
information in PNPs is not ``effluent data.'' That is, EPA could
conclude that the information in PNPs primarily concerns operational
practices at the facility and does not have enough of a bearing on the
characteristics of pollutants in the effluent to be considered
``effluent data.'' Because it would not be ``effluent data,'' the PNP
information would not be categorically excluded from being treated as
confidential. EPA's regulations at 40 CFR Part 2 specify the procedures
for parties to make case-specific claims that information they submit
to EPA is confidential and for EPA to evaluate those claims. Consistent
with these regulations, each CAFO could claim that the information in
its PNP is confidential (except for the cover sheet and executive
summary). EPA would evaluate these claims and determine in each case
whether the CAFO's CBI claim should be approved or denied. In sum, EPA
could adopt final regulations that would require a CAFO's CBI claims
for the more detailed information in the remaining parts of the PNP to
be decided in each case.
The Agency notes that EPA itself would, of course, always be able
to request and review the CAFO's full PNP. The issues raised in this
discussion concern only the availability of these plans to outside
parties.
EPA requests comments on all aspects of this proposal, including
whether it would be proper to determine that the full PNP must be
publicly available under CWA Section 402(j) and under CWA Section 308
as ``effluent data.'' EPA also requests comments on whether the cover
sheet and executive summary should always be made available to the
public, as proposed, or whether there are elements of the cover sheet
or executive summary that might appropriately be claimed as CBI, and
not considered to be either part of the permit or ``effluent data.''
The PNP would be narrower than the CNMP and would contain only
requirements that are necessary for purposes of the effluent guideline.
A CNMP may contain other elements that go beyond the effluent
guideline. EPA is not proposing any separate requirements for CNMPs
themselves to be made publicly available and is not proposing any
findings as to whether information in a CNMP may be confidential.
2. What are the Effluent Limitations in the Permit?
The effluent limitations section in the permit serves as the
primary mechanism for controlling discharges of pollutants to receiving
waters. This section describes the specific narrative or numeric
limitations that apply to the facility and to land application. It can
contain either technology-based effluent limits or water quality-based
effluent limits, or both, and can contain additional best management
practices, as needed.
a. What Technology Based Effluent Limitations Would be in the
Permit? Under the two-tier structure, for CAFOs with 500 AU or more,
the effluent guidelines and standards regulations [40 CFR 412] would
establish the technology-based effluent limitations to be applied in
NPDES permits. Under the three-tier structure, any operation defined as
a CAFO would be subject to the revised effluent guidelines. The
proposal to revise the effluent guidelines and standards regulation is
described in section VIII of today's proposed rule.
Operations with fewer than 500 AU under the two-tier structure, or
fewer than 300 AU under the three-tier structure, which have been
designated as CAFOs by the permit authority would not be subject to the
effluent guidelines and standards. For these CAFOs, the permit writer
would use ``Best Professional Judgement,'' or BPJ, to establish, on a
case-by-case basis, the appropriate technology-based requirements.
Often, permit writers adopt requirements similar to, or the same as the
effluent guidelines requirements.
b. What Water Quality-based Effluent Limitations Would be in the
Permit? Section 301(b)(1)(C) of the Clean Water Act requires there to
be achieved ``any more stringent limitation, including those necessary
to meet water quality standards.'' Therefore, where technology-based
effluent limitations are not sufficient to meet water quality
standards, the permit writer must develop more stringent water quality-
based effluent limits. Under today's proposal, the permit writer must
include any more stringent effluent limitations for the waste stream
from the production area as necessary to meet water quality standards.
If necessary to meet water quality standards, permit writers may
consider requiring more stringent BMPs (e.g., liners for lagoons to
address a direct hydrologic connection to surface waters; covers for
lagoons to prevent rainwater from causing overflows; allowing
discharges only from catastrophic storms and not from chronic storms;
pollutant limits in the overflow; particular treatments, such as
grassed waterways for the overflows discharged; etc.).
If EPA chose to promulgate one of the options discussed in section
VII.D.2 above under which the agricultural storm water discharge
exemption did not apply to land application areas under the operational
control of a permitted CAFO, then the permit writer would be required
to establish water quality-based effluent limits where necessary to
meet water quality standards. If EPA chose to promulgate the option
described in section VII.D.2 above, under which the appropriate rates
and practices identified in the effluent guidelines and the NPDES
regulations established the scope of the term ``agriculture'' without
additional consideration of water quality impacts or water quality
standards, only the limitations and practices required by the effluent
guidelines and the NPDES regulations could be required by the permit
authority for land application discharges.
c. What Additional Best Management Practices Would be in the
Permit? Under Sec. 122.44(k)(4) of the existing NPDES regulations,
permit writers may include in permits best management practices ``that
are reasonably necessary to achieve effluent limitations and standards
or to carry out the purposes and intent of the CWA.'' Under today's
proposal, the permit writer may include BMPs for land application areas
in
[[Page 3037]]
addition to those required by the effluent guidelines, as necessary to
prevent adverse impacts on water quality. As discussed in section
VII.D.2 above, EPA is today defining proper agricultural practices
required to qualify for the agricultural storm water discharge
exemption to include practices necessary to minimize adverse water
quality impacts. Therefore, if a permit writer determines that despite
the implementation of the BMPs required by the effluent guidelines
discharges from a CAFO will have adverse water quality impacts, the
permit writer should impose additional BMPS designed to minimize such
impacts.
3. What Monitoring and Reporting Requirements are Included in the
Permit?
The section of the NPDES permit on monitoring and reporting
requirements identifies the specific conditions related to the types of
monitoring to be performed, the frequencies for collecting samples or
data, and how to record, maintain, and transmit the data and
information to the permit authority. This information allows the NPDES
permit authority to determine compliance with the permit requirements.
As described in section VIII, today's proposed revisions to the
effluent guidelines would require the operator to conduct periodic
visual inspection and to maintain all manure storage and handling
equipment and structures as well as all runoff management devices. See
proposed Sec. 412.33(c). The NPDES permit would also require the
permittee to: (1) test and calibrate all manure application equipment
annually to ensure that manure is land applied in accordance with the
proper application rates established in the NPDES permit; (2) sample
manure for nutrient content at least once annually, and up to twice
annually if manure is applied more than once or removed to be sent off-
site more than once per year; and (3) sample soils for phosphorus once
every three years. Today's proposed effluent guidelines would also
require the operator to review the PNP annually and amend it if
practices change either at the production area or at the land
application area, and submit notification to the permit authority.
Examples of changes in practice necessitating a PNP amendment include:
a substantial increase in animal numbers ( e.g., more than 20 percent)
which would significantly increase the volume of manure and nutrients
produced on the CAFO; a change in the cropping program which would
significantly alter land application of animal manure and wastewater;
elimination or addition of fields receiving animal waste application;
or changes in animal waste collection, storage facilities, treatment,
or land application method.
As discussed in section VII.E.1.c above, CAFO operators would be
required to submit their PNPs, as well as any information necessary to
determine compliance with their PNPs and other permit requirements, to
the permit authority upon request. The CAFO operator could make a copy
of the cover sheet and executive summary of the PNP available to the
public in any of several ways. Operators of new facilities seeking
coverage under a general permit and applicants for individual permits
would be required to submit a copy of their draft PNP to the permit
authority at the time of NOI submittal or application.
EPA is also proposing to require operators to submit a written
notification to the permit authority, signed by the certified planner,
that the PNP has been developed or amended, and is being implemented,
accompanied by a fact sheet summarizing certain elements of the PNP.
See Sec. 412.31(b)(1)(ii). This written notice of PNP availability
would serve an important role in verifying that the permittee is
complying with one of the requirements of the NPDES permit. EPA is
proposing that the PNP notification and fact sheet contain the
following information:
The number and type of animals covered by the plan
The number of acres to which manure and wastewaters will be
applied
The phosphorus conditions for those fields receiving the
manure
Nutrient content of the manure
Application schedule and rate
The quantity to be transferred off-site
Date PNP completed or amended
Key implementation milestones
4. What are the Record Keeping Requirements?
The record keeping requirements section of the permit specifies the
types of records to be kept on-site at the permitted facility.
Operation and Maintenance of the CAFO. As described in section VIII
of today's proposal, EPA is proposing to require operators to maintain
records at the facility that document: (1) the visual inspections,
findings, and preventive maintenance; (2) the date, rate, location and
methods used to apply manure and wastewater to land under the control
of the CAFO operators; (3) the transfer of the CAFO-generated manure
off-site; (4) the results of annual manure and wastewater sampling and
analyses to determine the nutrient content; and (5) the results of
representative soil sampling and analyses conducted at least every
three years to determine nutrient content.
Transfer to Off-site Recipients of CAFO Manure. As described in
Chapter IV.B and V.B, inappropriate land application of CAFO-generated
manure poses a significant risk to water quality. Further, EPA
estimates that the majority of CAFO-generated manure is in excess of
CAFO's crop needs, and will very likely be transferred off-site. The
ultimate success of the CAFO program depends on whether recipients
handle manure appropriately, and in a manner that prevents discharge to
waters. As discussed fully in section VII.D.4, EPA is not proposing to
regulate off-site recipients through CAFO permit requirements, however,
EPA believes that the certification and record-keeping requirements
described here will help to ensure responsible handling of manure.
Thus, EPA is co-proposing additional record keeping requirements under
the NPDES program.
Under one co-proposed option, EPA would require that owners or
operators of CAFOs obtain from off-site land appliers a certification
that, if land applying CAFO-generated manure, they are doing so at
proper agricultural rates. In addition, the CAFO owner or operator
would be required to maintain records of transfer, including the name
of the recipient and quantity transferred, and would be required to
provide the recipient with an analysis of the contents of the manure
and a brochure describing the recipient's responsibilities for proper
management of the manure.. Under another co-proposed option, EPA would
not require the certification, but would require the CAFO owner or
operator to keep records and provide information.
Certification Option. Under one option, EPA is proposing that CAFOs
obtain a certification and that recipients of CAFO-generated manure so
certify, pursuant to Sec. 308 of the CWA. Under Sec. 308, EPA has the
authority to require the owner or operator of a point source to
establish and maintain records and provide any information the Agency
reasonably requires. The Agency has documented historic problems
associated with over application of CAFO manure and wastewater by both
CAFO operators and recipients of CAFO manure and wastewater. Today's
proposal would establish effluent limitations designed to prevent
discharges due to over application. In order to determine whether or
not CAFOs are meeting the effluent
[[Page 3038]]
limitations which would be established under today's proposals, EPA
believes it is necessary for the Agency to have access to information
concerning where a CAFO's excess manure is sent. Furthermore, in order
to determine whether or not the recipients of CAFO manure should be
permitted (which may be required if they do not land apply the CAFO
manure in accordance with proper agricultural practices and they
discharge from a point source, see section VII.D.2), EPA has determined
that it will be necessary for such recipients to provide information
about their land application methods. Recipients who certify that they
are applying manure in accordance with proper agricultural practices as
detailed in section VII.D.2 are responding to a request under Section
308 of the CWA. Therefore, a recipient who falsely certifies is subject
to all applicable civil and criminal penalties under Section 309 of the
CWA.
In some cases, CAFOs give or sell manure to many different
recipients, including those taking small quantities, and this
requirement could result in an unreasonable burden. EPA is primarily
concerned with recipients who receive and dispose of large quantities,
presuming that recipients of small quantities pose less risk of
inappropriate disposal or over-application. To relieve the paperwork
burden, EPA is proposing that CAFOs not be required to obtain
certifications from recipients that receive less than twelve tons of
manure per year from the CAFO. The CAFO would, however, be required to
keep records of transfers to such recipients, as described below.
The Agency believes that it would be reasonable to exempt from the
PNP certification requirements recipients who receive small amounts of
manure from CAFOs. EPA considered exempting amounts such as a single a
truckload per day or a single truckload per year. EPA decided that an
appropriate exemption would be based on an amount that would be
typically used for personal, rather than commercial, use. The exemption
in today's proposal regulation is based on the amount of manure that
would be appropriately applied to five acres of land, since five acres
is at the low end of the amount of land that can be profitably farmed.
See, e.g., ``The New Organic Grower,'' Eliott Coleman (1995).
To determine the maximum amount of manure that could be
appropriately applied to five acres of land, an average nutrient
requirement per acre of cropland and pasture land was computed. Based
on typical crops and national average yields, 160 pounds of nitrogen
and 14.8 pounds of phosphorous are required annually per acre. See
``Manure Nutrient Relative to the Capacity of Cropland and Pastureland
to Assimilate Nutrients,'' Kellogg et al (USDA, July, 25, 2000). The
nutrient content of manure was based on USDA's online software, Manure
Master, available on the world wide web at http://www2.ftw.nrcs.usda.gov/ManureMaster/MM21.html.
The nitrogen content of manure at the time of land application
ranges from 1.82 pounds per ton for heifers and dairy calves to 18.46
pounds per ton for hens and pullets. Using the low end rate of 1.82
pounds of nitrogen per ton, 87.4 tons of manure would be needed for a
typical acre or 439 tons of manure for five acres in order to achieve
the 160 pounds per acre rate. Using the high end rate of 18.46 pounds
of nitrogen per ton, 8.66 tons of manure would be needed for a typical
acre or 43.3 tons of manure for five acres in order to achieve the 160
pounds per acre rate. Thus, the quantity of manure needed to meet the
nitrogen requirements of a five acre plot would range from 43.3 tons to
439 tons, depending on the animal type.
The phosphate content of manure at the time of land application
ranges from 1.10 pounds per ton for heifers and dairy calves to 11.23
pounds per ton for turkeys for breeding. Using the high end 11.23 pound
per ton rate for phosphorous, only about 1.3 tons would be needed for
an average acre, or 6.5 tons for five acres in order to meet the 14.8
pounds of phosphorous required annually for a typical acre of crops.
Using the low end 1.1 pound per ton rate for phosphorous, about 13.2
tons would be needed for an average acre, or 66 tons for five acres.
Using the phosphate content for broilers of 6.61 pounds per ton is more
typical of the phosphate content of manure and would result in 2.23
tons per acre being needed for an average acre, or 11.2 tons for five
acres.
Clearly, exempting the high end amount of manure based on nitrogen
content could lead to excess application of phosphorous. Regulating
based on the most restrictive phosphate requirement could lead to
manure not being available for personal use.
The exemption is only an exemption from the requirement that the
CAFO obtain a certification. The recipient would remain subject to any
requirements of State or federal law to prevent discharge of pollution
to waters of the U.S.
EPA is proposing to set the threshold at 12 tons per recipient per
year. This is rounding the amount based on typical phosphate content.
It also allows one one-ton pick up load per month, which is consistent
with one of the alternative approaches EPA considered. Recipients that
receive more than 12 tons would have to certify that it will be
properly managed. EPA is interested in comments on alternative
thresholds for exempting small quantity transfers by the CAFO from the
requirement that CAFOs receive certifications from the recipients.
For CAFO owners or operators who transfer CAFO-generated manure and
wastewater to manure haulers who do not land apply the waste, EPA is
proposing that the CAFO owner or operator must: (1) obtain the name and
address of the recipients, if known; (2) provide the manure hauler with
an analysis of the nutrient content of the manure, to be provided to
the recipients; and (3) provide the manure hauler with a brochure to be
given to the recipients describing the recipient's responsibility to
properly manage the land application of the manure to prevent discharge
of pollutants to waters of the U.S. The certification form would
include the statement,
``I understand that the information is being collected on behalf of
the U.S. Environmental Protection Agency or State and that there are
penalties for falsely certifying. The permittee is not liable if the
recipient violates its certification.''
Concern has been expressed that many potential recipients of CAFO
manure will choose to forego CAFO manure, and buy commercial
fertilizers instead, in order to avoid signing such a certification and
being brought under EPA regulation. The result could be that CAFO
owners and operators might be unable to find a market for proper
disposal, thereby turning the manure into a waste rather than a
valuable commodity. EPA requests comment on this concern.
This alternative is potentially protective of the environment
because non-CAFO land appliers would be liable for being designated as
a point source in the event that there is a discharge from improper
land application. EPA's proposed requirements for what constitutes
proper agricultural practices, described in VII.D.2 above, would ensure
that CAFO-generated manure is properly managed.
No Certification Option. In the second alternative proposal for
ensuring proper management of manure that is transferred off-site, EPA
is not proposing to require CAFO owners or operators to obtain the
certification described above. Rather, CAFO owners or operators would
be required to maintain records of transfer, described in the following
section.
[[Page 3039]]
Concern has been expressed that many potential recipients of CAFO
manure will choose to forego CAFO manure, and buy commercial
fertilizers instead, in order to avoid signing such a certification and
being brought under EPA regulation. The result could be that CAFO
owners and operators might be unable to find a market for proper
disposal, thereby turning the manure into a waste rather than a
valuable commodity.
This alternative is potentially protective of the environment
because non-CAFO land appliers would be liable for being designated as
a point source in the event that there is a discharge from improper
land application. EPA's proposed requirements for what constitutes
proper agricultural practices, described in VII.D.2 above, would ensure
that CAFO-generated manure is properly managed.
Records of Transfer of Manure Off-site. In both alternative
proposals for whether or not to require CAFO owners or operators to
obtain certifications from off-site recipients, EPA is proposing to
require CAFO operators to maintain records of the off-site transfer of
the CAFO-generated manure and wastewater, e.g., when manure is sold or
given away for land application on land not under their operational
control, to ensure the environmentally acceptable use of the CAFO-
generated manure. See Sec. 122.23(i)(5). When CAFO-generated manure is
sold or given away to be used for land application, the specific manner
of land application does not need to be addressed in the CAFO's PNP.
However, to help ensure the environmentally acceptable use of the CAFO-
generated manure, the CAFO operator would be required to do the
following: See Sec. 122.23(j)(4) and (5).
Maintain records showing the amount of manure and/or
wastewater that leaves the operation;
Record the name and address of the recipient(s), including
the intended recipient(s) of manure and/or wastewater transferred to
contract haulers, if known;
Provide the recipient(s) with representative information
on the nutrient content of the manure to be used in determining the
appropriate land application rates; and
Provide the recipient with information provided by the
permit authority of his/her responsibility to properly manage the land
application of the manure to prevent discharge of pollutants to waters
of the U.S.
[Under one co-proposed option, obtain and retain on-site a
certification from each recipient of the CAFO-generated manure and
wastewater that they will do one of the following: (a) land apply in
accordance proper agricultural practices as defined in today's
proposal; (b) obtain an NPDES permit for discharges resulting from non-
agricultural spreading; (c) or utilize it for other than land
application purposes.]
EPA proposes to require these records to be retained on-site at the
CAFO, and to be submitted to the permit authority upon request.
5. What are the Special Conditions and Standard Conditions in an NPDES
Permit?
Standard conditions in an NPDES permit list pre-established
conditions that apply to all NPDES permits, as specified in 40 CFR
122.41.
The special conditions in an NPDES permit are used primarily to
supplement effluent limitations and ensure compliance with the CWA. EPA
is proposing at 40 CFR 122.23(i) to (k) to require permit authorities
to develop special conditions that: (a) specify how the permittee is to
calculate the allowable manure application rate; (b) specify timing
restrictions, if necessary, on land application of manure and
wastewater to frozen, snow covered or saturated ground; (c) establish
requirements for facility closure; (d) specifying conditions for
groundwater with a direct hydrological connection to surface water; (e)
require certification for off-site transfer of manure and wastewater
(co-proposed with omitting this requirement). Finally, EPA is
soliciting comment on whether a special condition should be included
regarding erosion control.
a. Determining Allowable Manure Application Rate. EPA is proposing
that the permit authority be required to include a term in the NPDES
permit that establishes the method to be used for determining the
allowable manure application rate for applying manure to land under the
control of the CAFO operator. See proposed Sec. 122.23(j)(1).
As described in detail in section VIII, three methods are available
which may be used to determine the allowable manure application rate
for a CAFO. These three methods are: (1) the Phosphorus Index; (2) the
Soil Phosphorus Threshold Level; and (3) the Soil Test Phosphorus
Level.
EPA is proposing to adopt these three methods from USDA Natural
Resource Conservation Service's (NRCS) nutrient management standard
(Standard 590). State Departments of Agriculture are developing State
nutrient standards which incorporate one of these three methods. EPA is
proposing to require that each authorized permit authority adopt one or
more of these three methods as part of the State NPDES program, in
consultation with the State Conservationist. The permit would require
the permittee to develop the appropriate land application rates in the
site-specific PNP based upon the State's adopted method. EPA solicits
comment on whether the special conditions in an NPDES permit should
require permit authorities to adopt the USDA Natural Resource
Conservation Service's (NRCS) Nutrient Management Standard (Standard
590) in its entirety rather than just the portion that applies to
determining the allowable manure application rate.
b. Would Timing Restrictions on Land Application of CAFO-generated
Manure be Required? EPA is proposing to require that the permit writer
include in the CAFO's NPDES permit regionally appropriate prohibitions
or restrictions on the timing and methods of land application of manure
where necessary. See proposed Sec. 122.23(i)(3). The permit writer
would develop the restrictions based on a consideration of local crop
needs, climate, soil types, slope and other factors.
The permit would prohibit practices that would not serve an
agricultural purpose and would have the potential to result in
pollutant discharges to waters of the United States. A practice would
be considered not to be agricultural if significant quantities of the
nutrients in the manure would be unavailable to crops because they
would leach, run off or be lost due to erosion before they can be taken
up by plants.
EPA considered establishing a national prohibition on applying
CAFO-generated manure to frozen, snow covered or saturated ground in
today's proposed effluent guidelines. Disposal of manure or wastewater
to frozen, snow covered or saturated ground is generally not a
beneficial use for agricultural purposes. While such conditions can
occur anywhere in the United States, pollutant runoff associated with
such practice is a site specific consideration and is dependent on a
number of variables, including climate and topographic variability,
distance to surface water, and slope of the land. Such variability
makes it difficult to develop a national technology-based standard that
is consistently reasonable, and does not impose unnecessary cost on
CAFO operators.
While EPA believes that many permit writers will find a prohibition
on applying CAFO-generated manure to frozen, snow covered or saturated
ground to be reasonably necessary to achieve the effluent limitations
and to carry out the purposes and intent of the
[[Page 3040]]
CWA, EPA is aware that there are areas where these practices might be
allowed provided they are restricted. Application on frozen ground, for
example, may be appropriate in some areas provided there are
restrictions on the slope of the ground and proximity to surface water.
Many States have already developed such restrictions.
While the proposed regulations would not establish a national
technology-based limitation or BMP, EPA is proposing at
Sec. 122.23(j)(2) that permit writers consider the need for these
limits. Permit authorities would be expected to develop restrictions on
timing and method of application that reflect regional considerations,
which restrict applications that are not an appropriate agricultural
practice and have the potential to result in pollutant discharges to
waters of the United States. It is likely that the operators would need
to consider means of ensuring adequate storage to hold manure and
wastewater for the period which manure may not be applied. EPA
estimates that storage periods might range from 45 to 270 days,
depending on the region and the proximity to surface water, and to
ground water with a direct hydrological connection to surface water.
Permit authorities are expected to work with State agricultural
departments, USDA's Natural Resource Conservation Service, the EPA
Regional office, and other local interests to determine the appropriate
standard, and include the standard consistently in all NPDES permits
for CAFOs.
EPA's estimate that storage periods would range from 45 days to 270
days is derived using published freeze/frost data from the National
Oceanic and Atmospheric Administration, National Center for Disease
Control. For the purpose of estimating storage requirements to prevent
application to frozen ground, EPA assumed CAFOs could only apply manure
between the last spring frost and the first fall frost, called the
``freeze free period''. With a 90 percent probability, EPA could also
use a 28 degree temperature threshold to determine the storage time
required, rounded to the nearest 45 day increment. This calculation
results in 45 days of storage in the South; 225 days in parts of the
Midwest and the Mid-Atlantic; and as high as 270 days storage in the
Central region.
EPA is soliciting comment on alternate approaches of prohibiting
land application at certain times or using certain methods. For
example, EPA might develop a nationally applicable prohibition against
applying manure on frozen land that is greater than a certain slope
such as 15 percent. EPA is also interested in whether to prohibit
application to saturated soils.
c. Closure. EPA is proposing to require permit authorities to
require the CAFO operator to maintain permit coverage (e.g., after the
facility ceases operation as a CAFO or drops below the size for being
defined as a CAFO) until all CAFO-generated manure and wastewater is
properly disposed and, therefore, the facility no longer has the
potential to discharge. See proposed Sec. 122.23(i)(3). Specifically,
the permit writer would need to impose a permit condition requiring the
owner or operator to reapply for a permit unless and until the owner or
operator can demonstrate that the facility has no potential to
discharge wastes generated by the CAFO. This requirement would be
included as a special condition in the NPDES permits.
EPA considered several options for ensuring that manure and
wastewater from CAFOs is properly disposed after the operation
terminates or ceases being a CAFO. Section VII.C.2.g above discusses
the options in detail. In this proposal, EPA is also proposing to
ensure that permits explicitly address closure requirements. While EPA
is today proposing to only require ongoing permit coverage of the
former CAFO, permit authorities are encouraged to consider including
other conditions such as those discussed in Section VII.C.2.g above.
EPA is soliciting comment on these proposed provisions.
d. Discharge to Surface Water via a Direct Hydrological Connection
with Ground Water. EPA is proposing requirements to address the serious
environmental harms caused by discharges from CAFOs to surface waters
via direct hydrologic connection with ground water. As described in
section V.B.2.a, studies in Iowa, the Carolinas, and the Delmarva
Peninsula have shown that CAFO lagoons do leak, and that leaks from
lagoons contaminate ground water and the surface water to which that
ground water is hydrologically connected, often severely. EPA believes
that it is reasonable to include a requirement to ensure that
discharges to surface water via a direct hydrologic connection with
ground water do not occur from CAFOs, either by requiring the permit
applicant to implement appropriate controls or to provide evidence that
no such connection exists at the facility.
Section VII.C.2.J of today's preamble discusses the legal and
technical basis for the proposed ground water controls, and provides
information on tools and resources available to permit writers to make
determinations as to whether the production area of a CAFO may
potentially discharge to surface waters via direct hydrologic
connection with ground water.
EPA requests comment on the following proposals.
CAFOs Subject to Effluent Guideline Requirements for Ground water.
EPA is proposing that, for all CAFOs that are subject to an effluent
guideline that includes requirements for zero discharge from the
production area to surface water via direct hydrologic connection to
ground water (all beef and dairy operations, as well as new swine,
poultry and veal operations), the permit would require the appropriate
controls and monitoring. See proposed 40 CFR 412.33(a)(3), 412.35(a)(3)
and 412.45(a)(3). The permittee would be able to avoid the requirements
by submitting a hydrologist's report demonstrating, to the satisfaction
of the permit authority, that the ground water beneath the production
area is not connected to surface water through a direct hydrologic
connection.
EPA is also requesting comment on other options for determining
which CAFOs must implement appropriate monitoring and controls to
prevent discharges from the production area to hydrologically connected
groundwater. One option would be for EPA to narrow the rebuttable
presumption to areas with topographical characteristics that indicate
the presence of ground water that is likely to have a direct hydrologic
connection to surface water. For example, the final rule could specify
that only CAFOs located in certain areas, such as an area with certain
types of lithologic settings (e.g., karst, fractured bedrock, or
gravel); or an area defined by the USGS as a HLR1 or HLR9; or an area
with a shallow water table; would need to either comply with the
groundwater monitoring requirements and appropriate controls in the
effluent guideline or provide a hydrologist's statement demonstrating
that there is no direct hydrologic connection to surface waters.
Another option would be to require States, through a public process, to
identify the areas of the State in which there is the potential for
such discharges. In those areas, CAFOs subject to an effluent guideline
that includes requirements to prevent discharges to surface water via
hydrologically connected ground water would again need to either comply
with the monitoring requirements and appropriate controls in the
guideline or provide a hydrologist's statement demonstrating that there
is no hydrologic connection to surface waters.
Requirements for CAFOs Not Subject to Effluent Guidelines Ground
Water
[[Page 3041]]
Provisions. Certain facilities are not subject to today's revised
effluent guideline (412 Subpart C and D) that includes requirements to
prevent discharges to surface water via hydrologically connected ground
water. Such CAFOs include: (1) Facilities below the effluent guideline
applicability threshold that are designated as CAFOs; (2) existing
swine, poultry and veal operations; and (3) CAFOs in sectors other than
beef, dairy, poultry, swine and veal. For such CAFOs not subject to an
effluent guideline that includes ground water requirements, EPA is
proposing that the permit writer must assess whether the facility is in
an area with topographical characteristics that indicate the presence
of ground water that is likely to have a direct hydrologic connection
to surface water. For instance, if the facility is in an area with
topographical characteristics that indicate the presence of ground
water that is likely to have a hydrologic connection to surface water,
as discussed above, the permit writer is likely to determine that there
is the potential for a discharge to surface water via ground water with
a direct hydrologic connection.
For existing swine, poultry, and veal operations, if the permit
writer determines that pollutants may be discharged at a level which
may cause or contribute to an excursion above any State water quality
standard, the permit writer would be required to decide on a case-by-
case basis whether effluent limitations (technology-based and water
quality-based, as necessary) should be established to address potential
discharges to surface water via hydrologically connected ground water.
EPA is proposing that a permittee for whom the permit authority has
made the above determinations would be required to comply with those
conditions, or could avoid having those conditions imposed by providing
a hydrologist's statement that the facility does not have a direct
hydrologic connection to surface water. 40 CFR 122.23(j)(6) and (k)(5).
For CAFOs not subject to today's revised effluent guidelines, if
the permit writer determines that there is likely to be a discharge
from the CAFO to surface waters via a direct hydrologic connection, the
permit writer must impose technology-based or water quality-based, or
both, effluent limitations, as necessary. Again, EPA is proposing that
a permittee for whom the permit authority has made the above
determinations would be required to comply with those conditions, or
could avoid having those conditions imposed by providing a
hydrologist's statement that the facility does not have a direct
hydrologic connection to surface water. 40 CFR 122.23(j)(6) and (k)(5).
EPA is soliciting comments on the alternative provisions discussed
here. EPA is also requesting comment on the proposal to place the
burden on the permittee to establish to the satisfaction of the
permitting authority that the ground water beneath the production area
is not connected to surface waters through a direct hydrologic
connection.
e. Certification for Off-site Recipients of CAFO Manure. EPA is co-
proposing either to include the following requirement or to omit it. In
the inclusionary proposal, EPA would require permit writers to include
a special condition in each permit that requires CAFO owners or
operators to transfer manure off-site only to recipients who can
certify that they will either: (1) Land apply manure according to
proper agricultural practices, as defined for off-site land appliers in
today's proposed rule; (2) obtain an NPDES permit for potential
discharges; or (3) use the manure for purposes other than land
application. EPA proposes to define the term ``proper agriculture
practice'' to mean that the recipient shall determine the nutrient
needs of its crops based on realistic crop yields for its area, sample
its soil at least once every three years to determine existing nutrient
content, and not apply the manure in quantities that exceed the land
application rates calculated using either the Phosphorus Index,
Phosphorus Threshold, or Soil Test Phosphorus method as specified in 40
CFR 412.13(b)(1)(iv).
EPA is also proposing to allow States to waive this requirement if
the recipient is complying with the requirements of a State program
that are equivalent to proposed 40 CFR 412.13(b).
f. Erosion Control. EPA is not proposing to specify erosion
controls as a necessary element of the PNP, but permit writers should
consider whether to add special conditions on a case-by-case basis as
appropriate.
As described in previous sections, EPA recognizes that sediment
eroding from cropland can have a significant negative impact on surface
waters. While EPA realizes that it is not possible to completely
prevent all erosion, erosion can be reduced to tolerable rates. In
general terms, tolerable soil loss is the maximum rate of soil erosion
that will permit indefinite maintenance of soil productivity, i.e.,
erosion less than or equal to the rate of soil development. The USDA-
NRCS uses five levels of erosion tolerance (``T'') based on factors
such as soil depth and texture, parent material, productivity, and
previous erosion rates. These T levels are equivalent to annual losses
of about 1-5 tons/acre/year (2-11 mt/ha/year), with minimum rates for
shallow soils with unfavorable subsoils and maximum rates for deep,
well-drained productive soils (from Ag Management Measures).
Options for controlling erosion are: (1) Implementation of one of
the three NRCS Conservation Practices Standards for Residue Management:
No-Till and Strip Till (329A), Mulch Till (329B), or Ridge Till (329C)
in the state Field Office Technical Guide; (2) requiring a minimum 30
percent residue cover; (3) achieving soil loss tolerance or ``T''; or
(4) following the Erosion and Sediment Control Management Measure as
found in EPA's draft National Management Measures to Control Nonpoint
Source Pollution from Agriculture which is substantially the same as
EPA's 1993 Guidance Specifying Management Measure for Sources of
Nonpoint Pollution in Coastal Waters.
EPA is requesting public comment on the suitability of requiring
erosion control as a special condition of an NPDES permit to protect
water quality from sediment eroding from fields where CAFO manure is
applied to crops. If erosion control is desirable, EPA is soliciting
comment as to which method would be the most cost-efficient.
g. Design Standards for Chronic Rainfall. In this section, EPA is
soliciting comments on whether additional regulatory language is needed
to clarify when a discharge is considered to be caused by ``chronic
rainfall.'' EPA also solicits comment on whether design standards to
prevent discharges due to chronic rainfall should be specified in the
effluent limitations or as a special condition in the NPDES permit.
CAFOs in the beef and dairy sub-category [412-subpart C] are
prohibited from discharging except during a ``25-year, 24-hour rainfall
event or chronic rainfall'' and then only if they meet the criteria in
Sec. 412.13(a)(2). Section 412.13(a)(2)(i) allows a discharge caused by
such rainfall events only if ``(i) The production area is designed and
constructed to contain all process wastewaters including the runoff
from a 25-year, 24-hour rainfall event; and (ii) the production area is
operated in accordance with the requirements of Sec. 412.37(a).''
The term ``25-year, 24-hour rainfall event'' is clearly defined in
40 CFR 412.01(b). In addition, proposed Sec. 412.37(c)(1)(iv) would
require all surface impoundments to have a depth
[[Page 3042]]
marker which indicates the design volume and clearly indicates the
minimum freeboard necessary to allow for the 25-year, 24-hour rainfall
event. A discharge may be caused by a 25-year, 24-hour storm when it
occurs despite the fact that the CAFO operator maintained adequate
freeboard.
The term ``chronic rainfall'' has not been specifically defined.
Generally, a chronic rainfall event is one that lasts longer than 24
hours and causes a discharge from a system that has been designed,
constructed, maintained and operated to contain all process wastewaters
plus the runoff from a 25-year, 24-hour rainfall event. Persistent
rainfall over a period longer than 24 hours may overwhelm a system
designed for the 25-year, 24-hour rainfall event even though such
persistent rainfalls may be expected to occur more frequently than
every 25 years.
In order for a discharge to be ``caused'' by chronic rainfall, it
would need to be contemporaneous with the rainfall. The discharge could
not continue after the event any longer than is necessary. For example,
once a flooded lagoon has been drawn down to the level necessary to
protect the integrity of the lagoon (which in no case should be below
the level of the freeboard necessary for a 25/24-hour storm), the
discharge should cease. If the lagoon could not then accept additional
waste from the CAFO, no animals that would contribute waste to the
lagoon should be brought to the facility until additional capacity can
be generated by properly land applying the waste or shipping the waste
off-site.
A discharge also would not be considered to be ``caused'' by the
chronic storm if the operator should have foreseen the event in time to
properly land apply the waste and thereby have avoided an overflow or
the need to apply wastes to saturated grounds. Similarly, a discharge
is not considered to be caused by the chronic storm if the operator
should have foreseen the event and maintained adequate facilities for
managing the waste. Although (in the absence of more specific
regulatory requirements) operators would be responsible for foreseeing
and planning for chronic rainfall events, they would be liable for
discharges during chronic events only where they were not reasonable in
their decision regarding what would be adequate capacity.
An approach that would provide more certainty to the operator but
place a greater burden on permitting authorities would be for EPA to
require permit authorities to specify regionally-specific minimum free
board requirements necessary to contain runoff from foreseeable chronic
events. For example, it may be known that, in a given area, the free
board necessary to contain the runoff from a 25-year, 24-hour storm
will not be sufficient to contain the run off that typically
accumulates during the region's rainy season, especially when it would
not be appropriate to draw down the lagoon by land applying wastes
during that time. In that case, it may be necessary for the permit
writer to specify a greater freeboard requirement that would apply to
the CAFO at the beginning of that season. For example, Nebraska
requires CAFOs to be able to capture the average rainfall for the three
summer months. EPA notes that such additional permit conditions are
already required where they are necessary to eliminate potential
discharges that would cause or contribute to violations of state water
quality standards.
Another approach would be to require the operator to notify the
permitting authority as soon as it knows that a discharge will occur or
is occurring and to come to an agreement on how long the discharge will
occur. This approach has several disadvantages. Because many facilities
located in the same area may be experiencing the same problem,
permitting authorities may not have the resources to address several
simultaneous requests. It is not clear how a disagreement between the
operator and permit authority would be resolved. Perhaps most
importantly, this approach also does not address the need to foresee
and prepare for such events in advance of the event.
EPA solicits comment on all of these approaches for clarifying when
a discharge is considered to be caused by ``chronic rainfall,'' and
whether technology guidelines are necessary in either section 412 or
122 to address discharges due to chronic rainfall.
F. What Type of NPDES Permit is Appropriate for CAFOs?
NPDES permit authorities can exercise one of two NPDES permitting
options for CAFOs: general permits or individual permits. A general
NPDES permit is written to cover a category of point sources with
similar characteristics for a defined geographic area.
1. What Changes Are Being Made to the General Permit and NOI
Provisions?
The majority of CAFOs may appropriately be covered under an NPDES
general permit because CAFOs generally involve similar types of
operations, require the same kinds of effluent limitations and permit
conditions, and discharge the same types of pollutants. In the past,
about 70 percent of permitted CAFOs have been permitted under an NPDES
general permit, and EPA expects this trend to continue. General permits
offer a cost-effective approach for NPDES permit authorities because
they can cover a large number of facilities under a single permit. The
geographic scope of a general permit is flexible and can correspond to
political or other boundaries, such as watersheds. At the same time,
the general permit can also provide the flexibility for the permittee
to develop and implement pollution control measures that are tailored
to the site-specific circumstances of the permittee. The public has an
opportunity for input during key steps in the permit development and
implementation process.
EPA is proposing to clarify that CAFOs may obtain permit coverage
under a general permit. See proposed Sec. 122.28(a)(2)(iii). Although
section 122.28 currently authorizes CAFOs to be regulated using a
general permit, some stakeholders have questioned whether CAFOs fall
within the current language of that section. Today's proposal would
clarify that permit writers may use a general permit to regulate a
category of CAFOs that are appropriately regulated under the terms of
the general permit.
A complete and timely NOI indicates the operator's intent to abide
by all the conditions of the permit, and the NOI fulfills the
requirements for an NPDES permit application. The contents of the NOI
are specified in the general permit.
The current regulation requires NOIs to include legal name and
address of the owner and operator; facility name and address; type of
facility or discharges; and the receiving stream(s). EPA is proposing
to amend Sec. 122.28(b)(2)(ii) to require, in addition:
Type and number of animals at the CAFO
Physical location, including latitude and longitude of the
production area
Acreage available for agricultural use of manure and
wastewater;
Estimated amount of manure and wastewater to be
transferred off-site
Name and address of any other entity with substantial
operational control of facility
If a new facility, provide a copy of the draft PNP
If an existing facility, the status of the development of
the PNP
If an area is determined to have vulnerable ground water
(karst, sandy soil, shallow water table, or in a hydrological landscape
region 1 (HLR1), submit a hydrologist's statement that the
[[Page 3043]]
ground water under the production area of the facility is not
hydrologically connected to surface water, if the applicant asserts as
such
Provide a topographic map as described in 40 CFR
122.21(f)(7), showing any ground water aquifers and depth to ground
water that may be hydrologically connected to surface water
Sec. 122.21(f) requires the applicant to submit a topographic map
extending one mile beyond the facility's boundary that shows potential
discharge points and surface water bodies in the area. EPA is proposing
to include a requirement that the operator also identify on the
topographic map any ground water aquifers that may be hydrologically
connected to surface water, as well as the depth to ground water.
EPA is proposing to require permit authorities to make the NOI and
the notification of PNP development or amendment available to the
public and other interested parties in a timely manner, updated on a
quarterly basis. See proposed Sec. 122.23(j)(2). EPA encourages States
to develop and use Internet-based sites as a supplemental means to
provide ready public access to CAFO NPDES general permits, facility
NOIs, and other information.
EPA will explore ways to adapt the Permit Compliance System, EPA's
national wastewater database, so that permit authorities may use it to
track CAFO compliance information. This information might include:
NPDES permit number; facility name; facility location; latitude and
longitude of the production of area; animal type(s); number of animals;
the name and address of the contract holder (for contract operations);
PNP date of adoption or, where a PNP has not yet been developed, the
schedule for developing and implementing the PNP, including interim
milestones.
EPA is proposing to clarify that CAFOs may obtain permit coverage
under a general permit. See proposed Sec. 122.28(a)(2)(iii), which
would expressly add ``concentrated animal feeding operations'' to the
list of sources that are eligible for general permits. In fact, CAFOs
are already eligible for general permits under the existing regulations
at Sec. 122.28(a)(2), both because they are storm water point sources
(see subsection (a)(2)(i)) and because they are a category of point
sources that involve the same or substantially similar types of
operations, may be more appropriately controlled under a general permit
than under individual permits, and otherwise meet the criteria of
subsection (a)(2)(ii). Some stakeholders, however, have questioned
whether CAFOs meet these existing criteria for general permit
eligibility. Therefore, to remove any such questions among
stakeholders, EPA is proposing to expressly add CAFOs to the list of
sources that are eligible for general permits. In sum, this proposed
change would be for purposes of clarity only; it would effect no
substantive change to the regulations.
2. Which CAFOs May Be Subject to Individual Permits?
Although EPA is not proposing to require NPDES individual permits
in particular circumstances, the Agency is proposing additional
criteria for when general permits may be inappropriate for CAFOs. See
proposed Sec. 122.28(b)(3)(i)(G). Under the existing regulation, the
public may petition the permit authority when it believes that, based
on the criteria in section 122.28(b)(3)(i), that coverage under a
general permit is inappropriate. Finally, EPA is proposing to require
the permit authority to conduct a public process for determining which
criteria, if any, would require a CAFO owner or operator to apply for
an individual permit. See proposed Sec. 122.28(b)(3)(i)(G). Permit
authorities would be required to conduct this public process and set
forth its policy prior to issuing any general permit for CAFOs. Permit
authorities would have flexibility as to how to conduct this public
process.
Besides requiring a public process to develop criteria for
requiring individual permits, the proposed regulation would also add
the following CAFO-specific criteria for when the Director may require
an individual permit: (1) CAFOs located in an environmentally or
ecologically sensitive area; (2) CAFOs with a history of operational or
compliance problems; (3) CAFOs that are exceptionally large operations
as determined by the permit authority; and (4) significantly expanding
CAFOs. See proposed Sec. 122.28(b)(3)(i)(G)(i)-(iv). Any interested
member of the public may petition the Director to require an individual
permit for a facility covered by a general permit. Section
122.28(b)(3).
EPA believes these criteria on the availability of general permits
for CAFOs are desirable because of keen public interest in
participating in the process of issuing permits to CAFOs. The public
may participate in notice and comment during the development of general
permits, but once issued, public participation regarding facilities
submitting notices of intent is limited. On the other hand, the public
does have access to notice and comment participation with regard to
individual permits.
EPA considered requiring all CAFOs, or all new CAFOs, to obtain an
individual permit, but considered this potentially burdensome to permit
authorities. Using general permits to cover classes of facilities by
type of operation, by jurisdiction, or by geographic boundary such as a
watershed, offers positive environmental as well as administrative
benefits.
EPA also considered identifying a threshold to establish when
exceptionally large facilities would be required to apply for an
individual permit, such as 5,000 AU or 10,000 AU, or by defining such a
threshold as the largest ten percent or 25 percent of CAFOs within each
sector. EPA did not propose this approach because, as shown in table 7-
9, it was difficult to establish a consistent basis across sectors for
making this determination. While EPA's cost models assume that 30% of
operations might obtain individual permits, and thus such thresholds
are taken into account in the cost analyses for this proposed
regulation, EPA did not believe particular thresholds would be
appropriate across all sectors or all states. EPA is interested in
comments on whether it should establish a size threshold above which
individual permits would be required, recommendations of what the
threshold should be, and data to support such recommendations.
Table 7-9. Potential Definition of ``Exceptionally Large'' Facilities
----------------------------------------------------------------------------------------------------------------
5,000 AU 10,000 AU Top 10% (Est.) Top 25% (Est.)
-------------------------------------------------------------------------
Animal sector Head Head
equivalent equivalent Head AU Head AU
----------------------------------------------------------------------------------------------------------------
Beef/Heifer........................... 5,000 10,000 11,000 11,000 3,500 3,500
[[Page 3044]]
Dairy................................. 3,500 7,000 3,800 5,440 2,170 3,100
Veal.................................. 5,000 10,000 1,500 1,500 950 950
Swine................................. 12,500 25,000 9,000 3,600 5,000 2,000
Broiler............................... 500,000 1,000,000 150,000 1,500 110,000 1,100
Layer................................. 500,000 1,000,000 500,000 5,000 180,000 1,800
Turkey................................ 275,000 550,000 100,000 1,820 55,000 1,000
----------------------------------------------------------------------------------------------------------------
Note: Except for beef, these values are interpolations based on best professional judgement.
EPA also considered whether operations that significantly expand
should be required to reapply for a permit. Public concern has been
expressed as to whether operations that significantly expand should be
required to undergo a public process to determine whether new limits
are necessitated by the expansion. EPA believes, however, that if the
general permit covers operations similar to the newly expanded
operation, there would be no basis for requiring an individual permit.
In section VIII above, EPA also has explained why it would not be
appropriate to classify facilities that expand their production
capacities as new sources. If a member of the public believes that the
requirements of a proposed general permit are not adequate for CAFOs
above a certain size, it should raise that issue when the permit
authority proposes the general permit and request that it be limited to
certain size operations. As is discussed above, the public could also
petition the permit authority if it believes that a specific facility
should be covered by an individual permit.
Under existing regulations the permit authority may modify a permit
if there are material and substantial alterations to the permitted
facility or activity that occur after the permit is issued and justify
different permit conditions. 40 CFR 122.62(a)(1). The public would be
able to participate in the permit modification process to incorporate
the new standards. 40 CFR 123.5(c).
EPA is interested in comment on whether the above procedures are
adequate to ensure public participation or whether individual permits
should be required for any of the categories of facilities discussed
above. Specifically, EPA is interested in comments on whether
individual permits should be required for (a) facilities over a certain
size threshold, (b) new facilities; (c) facilities that are
significantly expanding; (d) facilities that have historical compliance
problems; or (e) operations that are located in areas with significant
environmental concerns.
3. Demonstrating No Potential to Discharge
As described in section VII.C.2.d above, today's proposal would
require all CAFO owners or operators to apply for an NPDES permit,
based on a presumption that all CAFOs have a potential to discharge
pollutants to waters of the U.S. There would, however, be one exception
to this requirement: A CAFO owner or operator would not need to apply
for a permit if it received a determination by the permit authority
that the CAFO does not have a potential to discharge. It would be the
CAFO owner's or operator's burden to ask for a ``no potential to
discharge'' determination and to support the request with appropriate
data and information. See proposed Sec. 122.23(c) and (e).
The term ``no potential to discharge'' means that there is no
potential for any CAFO manure or wastewaters to be added to waters of
the United States from the operation's production or land application
areas, without qualification. For example, if a CAFO land applies its
manure according to a permit nutrient plan, it may not claim ``no
potential to discharge'' status on the basis that it would have runoff,
but any runoff would be exempt as agricultural storm water. CAFOs
owners or operators should not be able to avoid permitting by claiming
that they already meet the land application requirements that would be
in a permit--in this case, the requirement of zero discharge from land
application areas except for runoff from properly applied manure and
wastewater (see today's proposed effluent limitation guidelines).
Moreover, today's proposed effluent limitation guidelines would include
not only restrictions on the rate of land application but also a set of
best management practices to further protect against inadvertent
discharges from land applied manure and wastewater (for example, the
requirement for 100 foot setbacks, consideration of timing of
application, etc.). EPA's intention would be to require a permit that
imposes both types of requirements unless an operation has clearly
established the absence of a potential to discharge. A CAFO's claim
that it already meets the restrictions on the rate of land application
would not ensure, as a permit would, that the CAFO has employed and is
continuing to employ these additional management practices.
Instead, EPA proposes to allow ``no potential to discharge'' status
in order to provide relief where there truly is no potential for a
CAFO's wastes to reach the waters. This would include, for example,
CAFOs that are far from any water body, or those that have closed cycle
systems for managing their wastes and that do not land apply their
wastes. In particular, EPA believes that the act of land applying its
manure and wastewater would, in many cases, be enough by itself to
indicate that a CAFO does have a potential to discharge. It would be
very difficult, in general, for CAFOs that land apply their wastes to
demonstrate that they have no potential to discharge (although
conceivably such a showing could be made if the physical features of
the site, including lack of proximity to the waters, slope, etc.
warrant it).
It is only where there is no potential for a CAFO's wastes to reach
the waters that EPA believes it is appropriate not to require a permit.
Indeed, where a CAFO has demonstrated that it has no potential to
discharge, it no longer qualifies as a point source under the Act (see
Section 502(14), which defines ``point source'' to include conveyances
such as CAFOs from which pollutants ``are or may be'' discharged).
Under today's proposal, the burden of proof to show that there is
no potential to discharge would be with the CAFO owner or operator, not
the permitting authority. There would be a presumption that the CAFO
does have the potential to discharge unless the CAFO owner or operator
has rebutted this presumption by showing, to the satisfaction of the
permit authority, that it does not.
[[Page 3045]]
It is not EPA's intention to allow a broad interpretation of this
provision but, rather, to establish that ``no potential to discharge''
is to be narrowly interpreted and applied by permit authorities. This
provision is intended to be a high bar that provides an exemption only
to those facilities that can demonstrate to a degree of certainty that
they have no potential to discharge to the waters of the U.S.
Today's proposal would specify that an operation that has had a
discharge within the past five years cannot receive a determination
that it has no potential to discharge. The Agency is not proposing to
specify further the exact conditions that would indicate that a
facility has no potential to discharge. However, any such demonstration
would need to account for all manure generated at the facility,
specifying how the design of the animal confinement areas, storage
areas, manure and wastewater containment areas, and land application
areas eliminates any possibility of discharge to surface waters or to
groundwater with a direct hydrological connection to surface water.
Further, the CAFO operator must be able to provide assurance that all
CAFO-generated manure and wastewater that is transported off-site are
transferred to a recipient that provides for environmentally
appropriate handling, such as by: (1) land applying according to proper
agricultural practices as defined in this regulation; (2) obtaining an
NPDES permit for discharges resulting from land application; or (3)
having other non-land application uses.
If an owner or operator is able to demonstrate no potential to
discharge at the production area, but cannot demonstrate an assurance
that manure transported off-site is being appropriately disposed of,
the facility would be required to apply for a zero discharge permit
that includes the record keeping requirements described in section
VII.E. of today's proposal.
EPA requests comment on whether it should include additional
specific criteria for determining whether a CAFO has ``no potential to
discharge,'' and what those criteria should be. The Agency is concerned
that without more specific criteria, this provision could be subject to
abuse. Therefore, EPA is seeking comment on whether safeguards are
necessary to ensure that only those CAFOs which truly pose no risk to
the environment are able to avoid permitting requirements.
The fact that a CAFO owner or operator submits a request for a
determination that the facility has no potential to discharge would not
change the deadline to apply for a permit. The CAFO owner or operator
would need to apply for a permit according to the date specified in
Sec. 122.23(f) unless it receives a no potential to discharge
determination before that date. It would be inappropriate, in EPA's
view, to allow otherwise--i.e., to postpone the deadline to apply for a
permit if the CAFO has not yet received a determination on its ``no
potential to discharge'' request. Under that approach, even CAFOs
owners or operators who could not make a serious claim of ``no
potential to discharge'' could apply for such a determination simply as
a way of delaying the permitting process, and the process could in fact
be delayed if permitting authorities are faced with large numbers of
such requests. We recognize that under the approach we are proposing,
some CAFOs who really do have no potential to discharge will be forced
to file a complete permit application if their permitting authority has
not ruled on their request prior to the deadline for the permit
application. However, EPA expects there to be few such cases, since we
expect relatively few CAFOs to be able to demonstrate no potential to
discharge; and in light of the problems of the alternative approach,
EPA's proposed approach seems preferable.
It is important to recognize that if a CAFO receives a ``no
potential to discharge'' determination but subsequently does have a
discharge, that operation would be in violation of the Clean Water Act
for discharging without a permit. The ``no potential to discharge''
determination would not identify an operation as forever a non-point
source. To the contrary, there would be no basis for excluding an
operation from the requirements for point sources if it meets the
criteria for being a CAFO and has an actual discharge of pollutants to
the waters. The operation, upon discharging, would immediately revert
to status as a point source.
EPA is requesting comment on whether the Director's ``no potential
to discharge'' determination should be subject to the same types of
administrative procedures that are required for the Director's decision
to issue or deny a permit. That is, EPA is considering a requirement
that, before EPA or the State could issue a final determination that
there is no potential to discharge, the public would have the formal
right to comment on, and EPA would have the opportunity to object to
(in authorized States), the Director's draft determination. These
procedures may be appropriate, for example, in light of anticipated
public interest in the Director's determination. Alternatively, EPA
requests comment on not requiring the Director to follow these
procedures for public and EPA input into the Director's decision. EPA
could conclude that the types of procedures that apply to permitting
decisions are not appropriate here (since the ``no potential to
discharge'' determination is neither the issuance nor denial of a
permit), but that the environment is sufficiently protected by the fact
that any actual discharge from either the production or land
application areas would be a violation of the Clean Water Act. Under
this latter interpretation, EPA would not itself follow the types of
procedures that apply to permit decisions (such as providing the public
with the formal opportunity to submit public comments on the Director's
draft decision) and would not require States to follow those
procedures; however, States could make those procedures available if
they chose, since they would be more stringent than the procedures
required by EPA. EPA requests comment on which of these two alternative
approaches to adopt in the final rule.
It should be noted that under the three-tier proposal, in some
cases owners of operations in the middle tier (300 AU to 1,000 AU)
would not need to demonstrate ``no potential to discharge'' to avoid a
permit because they would not be defined as CAFOs in the first
instance. That is, if they do not meet any of the conditions under that
regulatory option for being defined as a CAFO (insufficient storage and
containment to prevent discharge, production area located within 100
feet of waters, evidence of discharge in the last five years, land
applying without a PNP, or transporting manure to an off-site recipient
without appropriate certification) then they would not be subject to
permitting as CAFOs. (They could, however, still be subject to NPDES
permitting as other, non-CAFO types of point sources, as discussed
elsewhere in this preamble.)
4. NPDES Permit Application Form 2B
EPA is proposing to amend the NPDES permit application form 2B for
CAFOs and Aquatic Animal Production Facilities in order to reflect the
revisions included in today's proposed rulemaking, and in order to
facilitate consideration of the permit application. EPA is proposing to
require applicants for individual CAFO permits to submit the following
information:
acreage available for agricultural use of manure and
wastewater;
estimated amount of manure and wastewater to be
transferred off-site.
[[Page 3046]]
name and address of any person or entity that owns animals
to be raised at the facility, directs the activity of persons working
at the CAFO, specifies how the animals are grown, fed, or medicated; or
otherwise exercises control over the operations of the facility, in
other words, that may exercise substantial operational control.
provide a copy of the draft PNP.
whether buffers, setbacks or conservation tillage are
implemented to protect water quality.
On the topographic map required by Form 1, identify
latitude and longitude of the production area, and identify depth to
ground water that may be hydrologically connected to surface water, if
any.
See proposed Sec. 122.21(i)(1).
The existing Form 2B currently only requires: whether the
application is for a proposed or existing facility; type and number of
animals in confinement (open confinement or housed under roof); number
of acres for confinement feeding; if there is open confinement, whether
a runoff diversion and control system has been constructed and, if so,
indicate whether the design basis is for a 10-year, 24-hour storm, a
25-year, 24-hour storm, or other, including inches; number of acres
contributing to drainage; design safety factor; name and official
title, phone number, and signature. In addition, Sec. 122.21(f) of the
current NPDES regulation requires applicants to submit a topographic
map extending one mile beyond the facility's boundary that shows
discharge points and surface water bodies in the area.
EPA is proposing to update form 2B and requests comment on what
information should be required of applicants for individual permits.
BILLING CODE 6560-50-P
[[Page 3047]]
[GRAPHIC] [TIFF OMITTED] TP12JA01.013
[[Page 3048]]
[GRAPHIC] [TIFF OMITTED] TP12JA01.014
[[Page 3049]]
[GRAPHIC] [TIFF OMITTED] TP12JA01.015
BILLING CODE 6560-50-C
It is anticipated that as a result of the requirement that all
CAFOs have a duty to apply, there will be a large number of CAFOs
applying for NPDES permits. Some of these operations represent a
greater risk to water quality than others. In order for the permit
writer to prioritize NPDES permit writing activities based on the risk
to water quality, Section G is being proposed to add to Form 2B as a
screening mechanism. Those facilities without
[[Page 3050]]
buffers, setbacks, or conservation tillage potentially pose a greater
risk to water quality; therefore the permit writer could use this
information to develop and issue NPDES permits to these facilities on
an expedited basis.
VIII. What Changes to the Feedlot Effluent Limitations Guidelines
Are Being Proposed?
A. Expedited Guidelines Approach
EPA has developed today's proposed regulation using an expedited
rulemaking process which relies on communication between EPA, the
regulated community, and other stakeholders, rather than formal data
and information gathering mechanisms. At various stages of information
gathering, USDA personnel, representatives of industry and the national
trade associations, university researchers, Agricultural Extension
agencies, States, and various EPA offices and other stakeholders have
presented their ideas, identified advantages and disadvantages to
various approaches, and discussed their preferred options.
EPA encourages full public participation in commenting on these
proposals.
B. Changes to Effluent Guidelines Applicability
1. Who is Regulated by the Effluent Guidelines?
The existing effluent guidelines regulations for feedlots apply to
operations with 1,000 AU and greater. EPA is proposing to establish
effluent guidelines requirements for the beef, dairy, swine, chicken
and turkey subcategories that would apply to any operations in these
subcategories that are defined as a CAFO under either the two-tier or
three-tier structure. Also as discussed in detail in Section VII.B.3,
EPA is also requesting comment on an option under which the effluent
guidelines proposed today would not be applicable to facilities under
1,000 AU. Under this approach, AFOs below this threshold would be
permitted based on an alternate set of effluent guidelines, or the best
professional judgment of the permit writer. After evaluating public
comments EPA may decide to consider this option. At that time EPA would
develop and make available for comment an analysis of why it is
appropriate to promulgate different effluent guidelines requirements or
no effluent guidelines for CAFOs that have between 300 and 1,000 AU as
compared to the effluent guidelines for operations with greater than
1,000 AU.
EPA also proposes to establish a new subcategory that applies to
the production of veal cattle. Veal production is included in the beef
subcategory in the existing regulation. However, veal production
practices and wastewater and manure handling are very different from
the practices used at beef feedlots; therefore, EPA proposes to
establish a separate subcategory for veal.
Under the three-tier structure the proposed effluent guidelines
requirements for the beef, dairy, swine, veal and poultry subcategories
will apply to all operations defined as CAFOs by today's proposal
having at least as many animals as listed below.
200 mature dairy cattle (whether milked or dry);
300 veal;
300 cattle other than mature dairy cattle or veal;
750 swine weighing over 55 pounds;
3,000 swine weighing 55 pounds or less;
16,500 turkeys; or
30,000 chickens.
Under the two-tier structure, the proposed requirements for the
beef, dairy, swine, veal and poultry subcategories will apply to all
operations defined as CAFOs by today's proposal having at least as many
animals as listed below.
350 mature dairy cattle (whether milked or dry);
500 veal;
500 cattle other than mature dairy cattle or veal;
1,250 swine weighing over 55 pounds;
5,000 swine weighing 55 pounds or less;
27,500 turkeys; or
50,000 chickens.
EPA is proposing to apply the Effluent guidelines requirements for
the beef, dairy, veal, swine, chicken and turkey subcategories, to all
operations in these subcategories that are defined as CAFOs under
either of today's proposed permitting scenarios. Operations designated
as CAFOs are not subject to the proposed effluent guidelines.
EPA is proposing to rename the Effluent Guidelines Regulations,
which is entitled Feedlots Point Source Category. Today's proposal
changes the name to the Effluent Guidelines Regulation for the CAFOs
Point Source Category. EPA is proposing this change for consistency and
to avoid confusion between who is defined as a CAFO under Part 122 and
whether the Effluent guidelines apply to the operation.
EPA is not proposing to revise the Effluent guidelines requirements
or the applicability for the horses, sheep and lambs and ducks
subcategories even though the definition of CAFO for these
subcategories is changing as described previously in Section VII. These
sectors have not undergone the same level of growth and consolidation
that the other livestock sectors have experienced in the past 25 years.
In 1992, an estimated 260 farms in these sectors were potentially CAFOs
based on size, and relatively few of these operations were expected to
maintain horses or sheep in confinement. Finally, the CAFOs in these
sectors have not been identified as significant contributors of
wastewater pollutants that result in water quality impairment.
EPA has evaluated the technology options described in this section
and evaluated the economic achievability for these technologies for all
operations with at least as many animals listed above for both the two-
tier and three-tier NPDES structures. The technology requirements for
operations defined as CAFOs under the two-tier structure are the same
requirements for operations defined as CAFOs under the three-tier
structure. Therefore for the purpose of simplifying this discussion and
emphasizing the differences in technology requirements for the various
technology options, the following discussion will not distinguish
between the two CAFO definition scenarios. For more discussion of the
costs and differences in costs between the different CAFO definition
scenarios, refer to Section X of this preamble or the EA. For
discussion of the benefits achieved for the different technology
options and scenarios, refer to Section XI of this preamble.
EPA proposes to make the Effluent guidelines and standards
applicable to those operations that are defined as CAFOs as described
previously under Section VII. EPA is not proposing to apply the
Effluent guidelines to those operations that fall below the proposed
thresholds but are still designated as CAFOs. As described in Section
VII, EPA anticipates that few AFOs will be designated as CAFOs and that
these operations will generally be designated due to site-specific
conditions. Examples of these conditions could include, not capturing
barnyard runoff which runs directly into the stream, or siting open
stockpiles of manure inappropriately. EPA believes that establishing
national technology based requirements for designated CAFOs is not
efficient or appropriate because historically a small number of
facilities has been designated and facilities which are designated in
the future will be designated for a wide variety of reasons. EPA
believes that a permit will best control pollutant discharges from
those operations if it is based on the permit writer's best
professional judgment and is tailored to address the specific
[[Page 3051]]
problems which caused the facility to be designated.
EPA is proposing to make substantial changes to the applicability
for chickens, mixed animal operations and immature animals as described
below.
Chickens. The current regulations apply to chicken operations with
liquid manure handling systems or continuous flow watering systems.
Unlimited continuous flow watering systems have been replaced by more
efficient systems for providing drinking water to the birds.
Consequently, many state permitting authorities and members of the
regulated community contend that the existing effluent guidelines do
not apply to most broiler and laying hen operations, despite the fact
that chicken production poses risks to surface water and groundwater
quality from improper storage of dry manure, and improper land
application. EPA is proposing to clarify the effluent guidelines to
ensure coverage of broiler and laying hen operations with dry manure
handling. The proposed applicability is identical to the definition of
chicken CAFOs described in Section VII.C.2.f. EPA is thus proposing to
establish effluent guidelines for chicken operations that use dry
manure handling systems regardless of the type of watering system or
manure handling system used. EPA is using the term chicken in the
regulation to include laying hens, pullets, broilers and other meat
type chickens. See Section VII for more details on the proposed
applicability threshold for chickens.
Mixed Animal Types. Consistent with the proposed changes to the
definition of CAFO as described in Section VII.C.2.b, EPA is proposing
to eliminate the calculation in the existing regulation that apply to
mixed animals operations.
Immature Animals. EPA is proposing to apply technology based
standards to swine nurseries and to operations that confine immature
dairy cows or heifers apart from the dairy. EPA currently applies
technology based standards to operations based on numbers of swine each
weighing over 55 pounds. Modern swine production has a phase of
production called a nursery that only confines swine weighing under 55
pounds. These types of operations are currently excluded from the
technology based standards, but are increasing in both number and size.
Therefore, EPA proposes to establish technology based standards to
operations confining immature pigs. Under the two-tier structure EPA
proposes to establish a threshold of 5,000 immature pigs or pigs
weighing 55 pounds or less. Under the proposed three-tier structure
operations that confine between 3,000 and 10,000 immature pigs could be
defined as CAFOs and all operations with more than 10,000 immature pigs
would be CAFOs. EPA also proposes to establish requirements for
immature heifers when they are confined apart from the dairy, at either
stand alone heifer operations similar in management to beef feedlots,
or at cattle feedlots. Therefore EPA proposes to include heifer
confinement off-site from the dairy under the beef feedlot subcategory,
and today's proposed technology standards for beef feedlots would apply
to those stand alone heifer operations defined as CAFOs. Also any
feedlot that confines heifers along with cattle for slaughter is
subject to the beef feedlot requirements.
EPA is proposing to establish a new subcategory for the effluent
guidelines regulations which applies to veal operations. The existing
regulation includes veal production in the beef cattle subcategory. EPA
is proposing to create a distinct subcategory for veal operations
because these operations use different production practices than other
operations in the beef subcategory however, we are proposing to retain
the sized threshold that pertained to veal while included in the beef
subcategory. Veal operations maintain their animals in confinement
housing as opposed to open outdoor lots as most beef feedlots operate.
They also manage their manure very differently than typical operations
in the beef cattle subcategory. Due in large part to the diet the
animals are fed, the manure has a lower solids content and is handled
through liquid manure handling systems, such as lagoons, whereas beef
feedlots use dry manure handling systems and only collect stormwater
runoff in retention ponds. EPA is proposing to define a veal CAFO as
any veal operation which confines 300 veal calves or greater under the
three-tier structure, or 500 veal calves or greater under two-tier
structure.
C. Changes to Effluent Limitations and Standards
EPA is today proposing to revise BAT and new source performance
standards for the beef, dairy, veal, swine and poultry subcategories.
EPA is proposing to establish technology-based limitations on land
application of manure to lands owned or operated by the CAFO, maintain
the zero discharge standard and establish management practices at the
production area.
1. Current Requirements
The existing regulations, which apply to operations with 1,000 AU
or greater, require zero discharge of wastewater pollutants from the
production area except when rainfall events, either chronic or
catastrophic cause an overflow of process wastewater from a facility
designed, constructed and operated to contain all process generated
wastewaters plus runoff from a 10-year, 24-hour event under the BPT
requirements and a 25-year, 24-hour event under the BAT and NSPS
requirements. In other words, wastewater and wastewater pollutants are
allowed to be discharged as the result of a chronic or catastrophic
rainfall event so long as the operation has designed, constructed and
operated a manure storage and/or runoff collection system to contain
all process generated wastewater, including the runoff from a specific
rainfall event. The effluent guidelines do not set discharge
limitations on the pollutants in the overflow.
2. Authority to Establish Requirements Based on Best Management
Practices
The regulations proposed today establish a zero discharge
limitation and include provisions requiring CAFOs to implement best
management practices (BMPs) to prevent or otherwise contain CAFO waste
to meet that limitation at the production area. The regulations also
establish non-numeric effluent limitations in the form of other BMPs
when CAFO waste is applied to land under the control of the CAFO owner
or operator. For toxic pollutants of concern in CAFO waste,
specifically cadmium, copper, lead, nickel, zinc and arsenic, EPA is
authorized to establish BMPs for those pollutants under CWA section
304(e). EPA also expects reductions in conventional and nonconventional
water pollutants as a result of BMPs. To the extent these pollutants
are in the waste streams subject to 304(e), EPA has authority under
that section to regulate them. EPA also has independent authority under
CWA sections 402(a) and 501(a) and 40 CFR 122.44(k) to require CAFOs to
implement BMPs for pollutants not subject to section 304(e). In
addition, EPA has authority to establish non-numeric effluent
limitations guidelines, such as the BMPs proposed today, when it is
infeasible to establish numeric effluent limits. Finally, EPA is
authorized to impose the BMP monitoring requirements under section
308(a).
Production Area. EPA has determined that the BMPs for the
production area are necessary because the requirement of zero discharge
has historically not been attained. As described in Section V, of this
preamble, there are numerous reports of discharges from CAFOs that are
unrelated to storm events which would be less likely to occur if the
[[Page 3052]]
proposed BMPs described below were required.
Section 304(e) provides that ``[t]he Administrator, after
consultation with appropriate Federal and State agencies and other
interested persons, may publish regulations, supplemental to any
effluent limitations specified under (b) and (c) of this section for a
class or category of point sources, for any specific pollutant which
the Administrator is charged with a duty to regulate as a toxic or
hazardous pollutant under section 1317(a)(1) or 1321 of this title, to
control plant site runoff, spillage or leaks, sludge or waste disposal,
and drainage from raw material storage which the Administrator
determines are associated with or ancillary to industrial manufacturing
or treatment process within such class or category of point sources and
may contribute significant amounts of such pollutants to navigable
waters.'' Sec. 304(e). There are studies showing the presence of a
number of listed metals in animal manure. Numerous sources such as the
American Society of Agricultural Engineers, and Universities such as
North Carolina State University have acknowledged the presence of
metals in manure. Metals are present in the manure because they are
added or present in the animal feed. EPA has estimated metal loadings
being applied to land before and after this regulation would take
effect. Although the concentration of metals present in untreated
manure are less than the limits for metals established in EPA's
biosolids regulations (40 CFR Part 503), EPA still anticipates that
there would be a substantial reduction in pollutant loadings reaching
the edge of the field through use of the land application practices
included in today's proposal. See the Development Document for more
discussion.
EPA's authority to require these BMPs does not require a
determination that the toxics present in CAFO waste are significant.
The federal courts have held that EPA has extensive authority to carry
out its duties under the Clean Water Act:
EPA is not limited by statute to the task of establishing effluent
standards and issuing permits, but is empowered by section 501(a) of
the Act to prescribe regulations necessary to carry out its functions
under the Act. 33 U.S.C. Sec. 1361(a). It is also clear that
permissible conditions set forth in NPDES permits are not limited to
establishing limits on effluent discharge. To the contrary, Congress
has seen fit to empower EPA to prescribe as wide a range of permit
conditions as the agency deems appropriate in order to assure
compliance with applicable effluent limits. 33 U.S.C. Sec. 1342(a)(2);
see also id. Sec. 1314(e). NRDC v. EPA, 822 F.2d 104, 122 (D.C. Cir.
1987).
This authority operates independent of section 304(e). EPA's
authority under section 402(a)(2) to establish NPDES permit conditions,
including BMPs, for any pollutant when such conditions are necessary to
carry out the provisions of the statute has been further implemented
through regulations at 40 CFR 122.44(k). Although a requirement to
establish and implement BMPs of the type proposed in this regulation
could be imposed on a case-by-case basis, EPA has decided to promulgate
this requirement on a categorical basis for those facilities which are
CAFOs by definition. In light of the more than twenty years of
experience with the regulation of CAFOs and their failure to achieve
the zero discharge limit originally promulgated, EPA has determined
that certain management practices are necessary to ensure that the zero
discharge limit is actually met. The stated goal of the Clean Water Act
is to eliminate the discharge of pollutants into the Nation's waters.
CWA section 101(a)(1). EPA has determined that these BMPs, by
preventing or controlling overflows, leaks or intentional diversions,
are an important step toward that goal.
Finally, EPA has authority to impose monitoring and recordkeeping
requirements under section 308 of the Act. As described below EPA is
proposing to require that CAFOs periodically sample their manure and
soils to analyze for nutrient content. This is necessary to both
determine what is the appropriate rate to land apply manure and to
ensure that the application rate is appropriate. The proposed rule
would also require CAFOs to conduct routine inspections around the
production area to ensure that automated watering lines are functioning
properly, and to ensure that the manure level for liquid systems is not
threatening a potential discharge. The CAFO would also maintain records
that document manure application, including equipment calibration,
volume or amount of manure applied, acreage receiving manure,
application rate, weather conditions and timing of manure application,
application method, crops grown and crop yields. These records will
provide documentation that the manure was applied in accordance with
the PNP and has not resulted in a discharge of pollutants in excess of
the agricultural use. EPA has determined that these practices are
necessary in order to determine whether an owner or operator of a CAFO
is complying with the effluent limitation. Establishment and
maintenance of records, reporting, and the installation, use and
maintenance of monitoring equipment are all requirements EPA has the
authority to impose. 33 U.S.C. Sec. 1318(a).
Land Application Areas. For the land application areas of a CAFO,
EPA is proposing a nonnumeric effluent limitation consisting of best
management practices. The D.C. Circuit has concluded that ``[w]hen
numerical effluent limitations are infeasible, EPA may issue permits
with conditions designed to reduce the level of effluent discharges to
acceptable levels.'' NRDC v. Costle, 568 F.2d 1369, 1380 (D.C. Cir.
1977); 40 CFR 122.44(k)(3). EPA has determined that it is infeasible to
establish a numeric effluent limitation for discharges of land applied
CAFO waste and has also determined that the proposed BMPs are the
appropriate ones to reduce the level of discharge from land application
areas.
The proposed BMPs constitute the effluent limitation for one
wastestream from CAFOs. The statutory and regulatory definition of
``effluent limitation'' is very broad--``any restriction'' imposed by
the permitting authority on quantities, discharge rates and
concentrations of a pollutant discharged into a water of the United
States. Clean Water Act Sec. 502(11), 40 CFR 122.2. Neither definition
requires an effluent limitation to be expressed as a numeric limit.
Moreover, nowhere in the CWA does the term ``numeric effluent
limitation'' even appear and the courts have upheld non-numeric
restrictions promulgated by EPA as effluent limitations. See NRDC v.
EPA, 656 F.2d 768, 776 (D.C. Cir. 1981) (holding that a regulation
which allows municipalities to apply for a variance from the normal
requirements of secondary sewage treatment is an ``effluent
limitation'' for purposes of review under Sec. 509(b): ``[W]hile the
regulations do not contain specific number limitations in all cases,
their purpose is to prescribe in technical terms what the Agency will
require of section 1311(h) permit applicants.''). Thus, the statutory
definition of ``effluent limitation'' is not limited to a single type
of restriction, but rather contemplates a range of restrictions that
may be used as appropriate. Likewise, the legislative history does not
indicate that Congress envisioned a single specific type of effluent
limitation to be applied in all circumstances. Therefore, EPA has a
large degree of discretion in interpreting the term ``effluent
limitation,'' and determining whether an effluent limitation must be
expressed
[[Page 3053]]
as a numeric standard. EPA has defined BMPs as ``schedules of
activities, prohibitions of practices, maintenance procedures, and
other management practices to prevent or reduce the pollution of waters
of the United States.'' 40 CFR 122.2. A BMP may take any number of
forms, depending upon the problem to be addressed. Because a BMP must,
by definition, ``prevent or reduce the pollution of waters of the
United States,'' the practices and prohibitions a BMP embodies
represent restrictions consistent with the definition of an effluent
limitation set out in CWA Sec. 502(11).
Effluent limitations in the form of BMPs are particularly suited to
the regulation of CAFOs. The regulation of CAFOs often consists of the
regulation of discharges associated with storm water. Storm water
discharges can be highly intermittent, are usually characterized by
very high flows occurring over relatively short time intervals, and
carry a variety of pollutants whose nature and extent varies according
to geography and local land use. Water quality impacts, in turn, also
depend on a wide range of factors, including the magnitude and duration
of rainfall events, the time period between events, soil conditions,
the fraction of land that is impervious to rainfall, other land use
activities, and the ratio of storm water discharge to receiving water
flow. CAFOs would be required to apply their manure and wastewater to
land in a manner and rate that represents agricultural use. The manure
provides nutrients, organic matter and micronutrients which are very
beneficial to crop production when applied appropriately. The amount or
rate at which manure can be applied to provide the nutrient benefits
without causing excessive pollutant discharge will vary based on site
specific factors at the CAFO. These factors include the crop being
grown, the expected crop yield, the soil types, and soil concentration
of nutrients (especially phosphorus), and the amount of other nutrient
sources to be applied. For these reasons, EPA has determined that
establishing a numeric effluent limitation guideline is infeasible.
EPA has determined that the various BMPs specified in today's
proposed regulation represent the minimum elements of an effective BMP
program. By codifying them into a regulation of general applicability,
EPA intends to promote expeditious implementation of a BMP program and
to ensure uniform and fair application of the baseline requirements.
EPA is proposing only those BMPs which are appropriate on a nationwide
basis, while giving both States and permittees the flexibility to
determine the appropriate practices at a local level to achieve the
effluent limitations. The BMP's (described below) that are included in
the proposed technology options are necessary to ensure that manure and
wastewater are utilized for their nutrient content in accordance with
agricultural requirements for producing crops or pastures. EPA also
believes that the proposed regulations represent an appropriate and
efficient use of its technical expertise and resources that, when
exercised at the national level, relieves state permit writers of the
burden of implementing this aspect of the Clean Water Act on a case-by-
case basis.
3. Best Practicable Control Technology Limitations Currently Available
(BPT)
EPA is proposing to establish BPT limitations for the beef, dairy,
swine, veal chicken and turkey subcategories. There are BPT limitations
in the existing regulations which apply to CAFOs with 1,000 AU or more
in the beef, dairy swine and turkey subcategories. BPT requires that
these operations achieve zero discharge of process wastewater from the
production area except in the event of a 10-year, 24-hour storm event.
EPA is proposing to revise this BPT requirement and to expand the
applicability of BPT to all operations defined as CAFOs in these
subcategories including CAFOs with fewer than 1,000 AU.
The Clean Water Act requires that BPT limitations reflect the
consideration of the total cost of application of technology in
relation to the effluent reduction benefits to be achieved from such
applications. EPA considered two options as the basis for BPT
limitations.
Option 1. This option would require zero discharge from a facility
designed, maintained and operated to hold the waste and wastewater,
including storm water, from runoff plus the 25-year 24-hour storm
event. Both this option and Option 2 would add record keeping
requirements and practices that ensure this zero discharge standard is
met. As described in Section V there are numerous reports of operations
discharging pollutants from the production area during dry weather. The
reason for these discharges varies from intentional discharge to poor
maintenance of the manure storage area or confinement area. EPA's cost
models reflect the different precipitation and climatic factors that
affect an operations ability to meet this requirement; see Section X
and the Development Document for further details.
Option 1 would require weekly inspection to ensure that any storm
water diversions at the animal confinement and manure storage areas are
free from debris, and daily inspections of the automated systems
providing water to the animals to ensure they are not leaking or
spilling. The manure storage or treatment facility would have to be
inspected weekly to ensure structural integrity. For liquid
impoundments, the berms would need to be inspected for leaking,
seepage, erosion and other signs of structural weakness. The proposal
requires that records of these inspections would be maintained on-site,
as well as records documenting any problems noted and corrective
actions taken. EPA believes these inspections are necessary to ensure
proper maintenance of the production area and prevent discharges apart
from those associated with a storm event from a catastrophic or chronic
storm.
Liquid impoundments (e.g., lagoons, ponds and tanks) that are open
and capture precipitation would be required to have depth markers
installed. The depth marker indicates the maximum volume that should be
maintained under normal operating conditions allowing for the volume
necessary to contain the 25-year, 24-hour storm event. The depth of the
impoundment would have to be noted during each week's inspection and
when the depth of manure and wastewater in the impoundment exceeds this
maximum depth, the operation would be required to notify the Permit
Authority and inform him or her of the action will be taken to address
this exceedance. Closed or covered liquid impoundments must also have
depth markers installed, with the depth of the impoundment noted during
each week's inspection. In all cases, this liquid may be land applied
only if done in accordance with the permit nutrient plan (PNP)
described below. Without such a depth marker, a CAFO operator may fill
the lagoons such that even a storm less than a 25-year, 24-hour storm
causes the lagoon to overflow, contrary to the discharge limit proposed
by the BPT requirements.
An alternative technology for monitoring lagoon and impound meat
levels is remote sensors which monitor liquid levels in lagoons or
impoundments. This sensor technology can be used to monitor changes in
liquid levels, either rising or dropping levels, when the level is
changing rapidly can trigger an alarm. These sensors can also trigger
an alarm when the liquid level has reached a critical level. The alarm
can transmit to a wireless receiver to alert the CAFO
[[Page 3054]]
owner or operator and can also alert the permit authority. The
advantages of this type of system is the real time warning it can
provide the CAFO owner or operator that his lagoon or impoundment is in
danger of overflowing. It can provide the CAFO operator an opportunity
to better manage their operations and prevent catastrophic failures.
These sensors are more expensive than depth markers; however, the added
assurance they provide in preventing catastrophic failures may make
them attractive to some operations.
Option 1 would require operations to handle dead animals in ways
that prevent contributing pollutants to waters of the U.S. EPA proposes
to prohibit any disposal of dead animals in any liquid impoundments or
lagoons. The majority of operations have mortality handling practices
that prevent contamination of surface water. These practices include
transferring mortality to a rendering facility, burial in properly
sited lined pits, and composting.
Option 1 also would establish requirements to ensure the proper
land application of manure and other process wastes and wastewaters.
Under Option 1 land application of manure and wastewater to land owned
or operated by the CAFO would have to be performed in accordance with a
PNP that establishes application rates for manure and wastewater based
on the nitrogen requirements for the crop. EPA believes that
application of manure and wastewater in excess of the crop's nitrogen
requirements would increase the pollutant runoff from fields, because
the crop would not need this nitrogen, increasing the likelihood of it
being released to the environment.
In addition, Option 1 includes a requirement that manure be sampled
at least once per year and analyzed for its nutrient content including
nitrogen, phosphorus and potassium. EPA believes that annual sampling
of manure is the minimum frequency to provide the necessary nutrient
content on which to establish the appropriate rate. If the CAFO applies
its manure more frequently than once per year, it may choose to sample
the manure more frequently. Sampling the manure as close to the time of
application as practical provides the CAFO with a better measure of the
nitrogen content of the manure. Generally, nitrogen content decreases
through volatilization during manure storage when the manure is exposed
to air.
The manure application rate established in the PNP would have to be
based on the following factors: (1) the nitrogen requirement of the
crop to be grown based on the agricultural extension or land grant
university recommendation for the operation's soil type and crop; and
(2) realistic crop yields that reflect the yields obtained for the
given field in prior years or, if not available, from yields obtained
for same crop at nearby farms or county records. Once the nitrogen
requirement for the crop is established the manure application rate
would be determined by subtracting any other sources of nitrogen
available to the crop from the crop's nitrogen requirement. These other
sources of nitrogen can include residual nitrogen in the soil from
previous applications of organic nitrogen, nitrogen credits from
previous crops of legumes, and crop residues, or applications of
commercial fertilizer, irrigation water and biosolids. Application
rates would be based on the nitrogen content in the manure and should
also account for application methods, such as incorporation, and other
site specific practices.
The CAFO would have to maintain the PNP on-site, along with records
of the application of manure and wastewater including: (1) the amount
of manure applied to each field; (2) the nutrient content of manure;
(3) the amount and type of commercial fertilizer and other nutrient
sources applied; and (4) crop yields obtained. Records must also
indicate when manure was applied, application method and weather
conditions at the time of application.
While Option 1 would require manure to be sampled annually, it
would not require soil sampling and analysis for the nitrogen content
in the soil. Nitrogen is present in the soil in different forms and
depending on the form the nitrogen will have different potential to
move from the field. Nitrogen is present in an organic form from to the
decay of proteins and urea, or from other organic compounds that result
from decaying plant material or organic fertilizers such as manure or
biosolids. These organic compounds are broken down by soil bacteria to
inorganic forms of nitrogen such as nitrate and ammonia. Inorganic
nitrogen or urea may be applied to crop or pasture land as commercial
fertilizer. Inorganic nitrogen is the form taken up by the plant. It is
also more soluble and readily volatile, and can leave the field through
runoff or emissions. Nitrogen can also be added to the soil primarily
through cultivation of legumes which will ``fix'' nitrogen in the soil.
At all times nitrogen is cycling through the soil, water, and air, and
does not become adsorbed or built up in the soil in the way that
phosphorus does, as discussed under Option 2. Thus, EPA is not
proposing to require soil sampling for nitrogen. EPA would, however,
require that, in developing the appropriate application rate for
nitrogen, any soil residue of nitrogen resulting from previous
contributions by organic fertilizers, crop residue or legume crops
should be taken into account when determining the appropriate nitrogen
application rate. State Agricultural Departments and Land Grant
Universities have developed methods for accounting for residual
nitrogen contributed from legume crops, crop residue and organic
fertilizers.
Option 1 would also prohibit application of manure and wastewater
within 100 feet of surface waters, tile drain inlets, sinkholes and
agricultural drainage wells. EPA strongly encourages CAFOs to construct
vegetated buffers, however, Option 1 only prohibits applying manure
within 100 feet of surface water and would not require CAFOs to take
crop land out of production to construct vegetated buffers. CAFOs may
continue to use land within 100 feet of surface water to grow crops.
Under Option 1, EPA included costs for facilities to construct minimal
storage, typically three to six months, to comply with the manure
application rates developed in the PNP. EPA included these costs
because data indicate pathogen concentrations in surface waters
adjacent to land receiving manure are often not significantly different
from pathogen levels in surface waters near lands not receiving manure
when the manure has been stored and aged prior to land application. EPA
believes the 100 foot setback, in conjunction with proper manure
application, will minimize the potential runoff of pathogens, hormones
such as estrogen, and metals and reduce the nutrient and sediment
runoff.
EPA is aware of concerns that the presence of tile drain inlets,
sinkholes and agricultural drainage wells may be widespread in some
parts of the country. This could effectively preclude manure based
fertilization of large areas of crop land. EPA requests comment on the
presence of such features in crop land and the extent to which a 100
foot setback around such features would interfere with land application
of manure. EPA also requests comment on how it might revise the setback
requirement to address such concerns and still adequately protect water
quality.
EPA analysis shows application rates are the single most effective
means of reducing runoff. Nevertheless, no combination of best
management
[[Page 3055]]
practices can prevent pollutants from land application from reaching
surface waters in all instances; vegetated buffers provide an extra
level of protection. Buffers are not designed to reduce pollutants on
their own; proper land application and buffers work in tandem to reduce
pollutants from reaching surface waters. Data on the effectiveness of
vegetated buffers indicate that a 35 to 66 foot vegetated buffer
(depending primarily on slope) achieves the most cost-effective removal
of sediment and pollutants from surface runoff. However, EPA chose not
to propose requiring operations to take land out of production and
construct a vegetated buffer because a buffer may not be the most cost-
effective application to control erosion in all cases. There are a
variety of field practices that should be considered for the control of
erosion. EPA encourages CAFOs to obtain and implement a conservation
management plan to minimize soil losses, and also to reduce losses of
pollutant bound to the soils.
Today's proposal requires a greater setback distance than the
optimum vegetated buffer distance. Since EPA is not requiring the
construction of a vegetated buffer, the additional setback distance
will compensate for the loss of pollutant reductions in the surface
runoff leaving the field that would have been achieved with a vegetated
buffer without requiring CAFOs to remove this land from production.
EPA solicits comment on additional options to control erosion which
would, in turn, reduce the amount of pollutants reaching waters of the
U.S. The options for controlling erosion include: (1) implementing one
of the three NRCS Conservation Practice Standards for Residue
Management: No-Till and Strip Till (329A), Mulch Till (329B), or Ridge
Till (329C) in the state Field Office Technical Guide; (2) requiring a
minimum 30% residue cover; (3) achieving soil loss tolerance or ``T';
or (4) implementing of the Erosion and Sediment Control Management
Measure as found in EPA's draft National Management Measures to Control
Nonpoint Source Pollution from Agriculture. This measure is
substantially the same as EPA's 1993 Guidance Specifying Management
Measure for Sources of Nonpoint Pollution in Coastal Waters which says
to:
``* * * Apply the erosion control component of a Resource
Management System (RMS) as defined in the 1993 Field Office
Technical Guide of the U.S. Department of AgricultureBNational
Resources Conservation Service to minimize delivery of sediment from
agricultural lands to surface waters, or design and install a
combination of management and physical practices to settle the
settleable solids and associated pollutants in runoff delivered from
the contributing area for storms of up to and including a 10-year,
24-hour frequency.''
Farmers entering stream buffers in the Conservation Reserve
Program's (CRP) Continuous Sign-Up receive bonus payments, as an added
incentive to enroll, include a 20 percent rental bonus, a $100 per acre
payment up-front (at the time they sign up), and another bonus at the
time they plant a cover. These bonus payments more than cover costs
associated with enrolling stream buffers, (i.e., rents forgone for the
duration of their 10 or 15 year CRP contracts, and costs such as seed,
fuel, machinery and labor for planting a cover crop). The bonuses
provide a considerable incentive to enroll stream buffers because the
farmers receive payments from USDA well in excess of what they could
earn by renting the land for crop production. Farmers can enter buffers
into the CRP program at any time.
EPA may also consider providing CAFOs the option of prohibiting
manure application within 100 feet or constructing a 35 foot vegetated
buffer. EPA solicits comment on any and all of these options.
Option 2. Option 2 retains all the same requirements for the
feedlot and manure storage areas described under Option 1 with one
exception: Option 2 would impose a BMP that requires manure application
rates be phosphorus based where necessary, depending on the specific
soil conditions at the CAFO.
Manure is phosphorus rich, so application of manure based on a
nitrogen rate may result in application of phosphorus in excess of crop
uptake requirements. Traditionally, this has not been a cause for
concern, because the excess phosphorus does not usually cause harm to
the plant and can be adsorbed by the soil where it was thought to be
strongly bound and thus environmentally benign. However, the capacity
for soil to adsorb phosphorus will vary according to soil type, and
recent observations have shown that soils can and do become saturated
with phosphorus. When saturation occurs, continued application of
phosphorus in excess of what can be used by the crop and adsorbed by
the soil results in the phosphorus leaving the field with storm water
via leaching or runoff. Phosphorus bound to soil may also be lost from
the field through erosion.
Repeated manure application at a nitrogen rate has now resulted in
high to excessive soil phosphorus concentrations in some geographic
locations across the country. Option 2 would require manure application
be based on the crop removal rate for phosphorus in locations where
soil concentrations or soil concentrations in combination with other
factors indicate that there is an increased likelihood that phosphorus
will leave the field and contribute pollutants to nearby surface water
and groundwater. Further, when soil concentrations alone or in
combination with other factors exceed a given threshold for phosphorus,
the proposed rule would prohibit manure application. EPA included this
restriction because the addition of more phosphorus under these
conditions is unnecessary for ensuring optimum crop production.
Nutrient management under Option 2 includes all the steps described
under Option 1, plus the requirement that all CAFOs collect and analyze
soil samples at least once every 3 years from all fields that receive
manure. EPA would require soil sampling at 3 year intervals because
this reflects a minimal but common interval used in crop rotations.
This frequency is also commonly adopted in nutrient management plans
prepared voluntarily or under state programs. When soil conditions
allow for manure application on a nitrogen basis, then the PNP and
record keeping requirements are identical to Option 1. Permit nutrient
plans would have to be reviewed and updated each year to reflect any
changes in crops, animal production, or soil measurements and would be
rewritten and certified at a minimum of once every five years or
concurrent with each permit renewal. EPA solicits comment on
conditions, such as no changes to the crops, or herd or flock size,
under which rewriting the plan would not be necessary and would not
require the involvement of a certified planner.
The CAFO's PNP would have to reflect conditions that require manure
application on a phosphorus crop removal rate. The manure application
rate based on phosphorus requirements takes into account the amount of
phosphorus that will be removed from the field when the crop is
harvested. This defines the amount of phosphorus and the amount of
manure that may be applied to the field. The PNP must also account for
the nitrogen requirements of the crop. Application of manure on a
phosphorus basis will require the addition of commercial fertilizer to
meet the crop requirements for nitrogen. Under Option 2, EPA believes
there is an economic incentive to maximize proper handling of manure by
conserving nitrogen and minimizing the
[[Page 3056]]
expense associated with commercial fertilizer. EPA expects manure
handling and management practices will change in an effort to conserve
the nitrogen content of the manure, and encourages such practices since
they are likely to have the additional benefit of reducing the nitrogen
losses to the atmosphere.
EPA believes management practices that promote nitrogen losses
during storage will result in higher applications of phosphorus because
in order to meet the crops requirements for nitrogen a larger amount of
manure must be applied. Nitrogen volatilization exacerbates the
imbalance in the ratio of nitrogen to phosphorus in the manure as
compared to the crop's requirement. Thus application of manure to meet
the nitrogen requirements of the crop will result in over application
of phosphorus and the ability of the crops and soil to assimilate
phosphorus will reach a point at which the facility must revise the PNP
to reflect phosphorus based application rates. EPA solicits comment on
additional incentives that can be used to discourage those manure
storage, treatment, and handling practices that result in nitrogen
volatilization.
Under both Option 1 (N) and Option 2 (P), the application of
nitrogen from all sources may not exceed the crop nutrient
requirements. Since a limited amount of nutrients can be applied to the
field in a given year, EPA expects facilities will select the site-
specific practices necessary to optimize use of those nutrients.
Facilities that apply manure at inappropriate times run the risk of
losing the value of nutrients and will not be permitted to reapply
nutrients to compensate for this loss. Consequently crop yields may
suffer, and in subsequent years, the allowable application rates will
be lower. For these reasons, facilities with no storage are assumed to
need a minimal storage capacity to allow improved use of nutrients.
Option 2 provides three methods for determining the manure
application rate for a CAFO. These three methods are:
Phosphorus Index
Soil Phosphorus Threshold Level
Soil Test Phosphorus Level
These three methods are adapted from NRCS' nutrient management
standard (Standard 590), which is being used by States' Departments of
Agriculture to develop State nutrient standards that incorporate one or
a combination of these three methods. EPA is proposing to require that
each authorized state Permit Authority adopt one of these three methods
in consultation with the State Conservationist. CAFOs would then be
required to develop their PNP based on the State's method for
establishing the application rate. In those states where EPA is the
permitting authority, the EPA Director would adopt one of these three
methods in consultation with that State's Conservationist.
Phosphorus Index--This index assesses the risk that phosphorus will
be transported off the field to surface water and establishes a
relative value of low, medium, high or very high, as specified in
Sec. 412.33. Alternatively, it may establish a numeric ranking. At the
present time there are several versions of the P-Index under
development. Many states are working on a P-Index for their state in
response to the NRCS 590 Standard, and NRCS itself developed a P-Index
template in 1994 and is in the process of updating that template at the
present time. There are efforts underway in the scientific community to
standardize a phosphorus index and assign a numeric ranking.
At a minimum the phosphorus index must consider the following
factors:
Soil erosion
Irrigation erosion
Runoff class
Soil P test
P fertilizer application rate
P fertilizer application method
Organic P source application rate
Organic P source application method
Other factors could also be included, such as:
Subsurface drainage
Leaching potential
Distance from edge of field to surface water
Priority of receiving water
Each of these factors is listed in a matrix with a score assigned
to each factor. For example, the distance from edge of field to surface
water assigns a score to different ranges of distance. The greater the
measured distance, the lower the score. Other factors may not be as
straightforward. For example, the surface runoff class relates field
slope and soil permeability in a matrix, and determines a score for
this element based on the combination of these factors. The same kind
of approach could also be used for the subsurface drainage class,
relating soil drainage class with the depth to the seasonal high water
table. The values for all variables that go into determining a P-Index
can either be directly measured, such as distance to surface water, or
can be determined by data available from the state, such as soil
drainage class that is based on soil types found in the state and
assigned to all soil types. Finally, each factor is assigned a weight
depending on its relative importance in the transport of phosphorus.
When a P-Index is used to determine the potential for phosphorus
transport in a field and the overall score is high, the operations
would apply manure on a phosphorus basis (e.g., apply to meet the crop
removal rate for phosphorus). When a P-Index determines that the
transport risk is very high, application of manure would be prohibited.
If the P-Index results in a rating of low or medium, then manure may be
applied to meet the nitrogen requirements of the crop as described
under Option 1. However, the CAFO must continue to collect soil samples
at least every three years. If the phosphorus concentration in the soil
is sharply increasing, the CAFO may want to consider managing its
manure differently. This may include changing the feed formulations to
reduce the amount of phosphorus being fed to the animals, precision
feeding to account for nutrient needs of different breeds and ages of
animals. It may also include changing manure storage practices to
reduce nitrogen losses. There is a great deal of research on feed
management, including potential effects on milk production when
phosphorus in rations fed to dairy cows is reduced, and the cost
savings of split sex and multistage diets and the addition of or adding
the enzyme phytase to make the phosphorus more digestible by poultry
and swine. Phytase additions in the feed of monogastrics have proven
effective at increasing the ability of the animal to assimilate
phosphorus and can reduce the amount of phosphorus excreted. Phytase
use is also reported to increase bioavailability of proteins and
essential minerals, reducing the need for costly supplemental
phosphorus, and reducing necessary calcium supplements for layers. The
CAFO may also consider limiting the application of manure. For example,
the CAFO may apply manure to one field to meet the nitrogen
requirements for that crop but not return to that field until the crops
have assimilated the phosphorus that was applied from the manure
application.
Phosphorus Threshold--This threshold which would be developed for
different soil types is a measure of phosphorus in the soil that
reflects the level of phosphorus at which phosphorus movement in the
field is acceptable. Scientists are currently using a soluble
phosphorus concentration of 1 part per million (ppm) as a measure of
acceptable phosphorus movement. When the soil concentration of
phosphorus reaches this threshold the concentration of phosphorus in
the runoff would be expected to be 1 ppm. The 1 ppm value
[[Page 3057]]
has been used as an indicator of acceptable phosphorus concentration
because it is a concentration that has been applied to POTWs in their
NPDES permits. An alternative phosphorus discharge value could be the
water quality concentration for phosphorus in a given receiving stream.
States which adopt this method in their state nutrient management
standard would need to establish a phosphorus threshold for all types
of soils found in their state.
Use of the phosphorus threshold in developing an application rate
allows for soils with a phosphorus concentration less than three
quarters the phosphorus threshold to apply manure on a nitrogen basis.
When soils have a phosphorus concentration between 3/4 and twice the
phosphorus threshold then manure must be applied to meet the crop
removal requirements for phosphorus. For soils which have phosphorus
concentrations greater than twice the phosphorus threshold, no manure
may be applied.
Soil Test Phosphorus--The soil test phosphorus is an agronomic soil
test that measures for phosphorus. This method is intended to identify
the point at which the phosphorus concentration in the soil is high
enough to ensure optimum crop production. Once that concentration range
(often reported as a ``high'' value from soil testing laboratories) is
reached, phosphorus is applied at the crop removal rate. If the soil
test phosphorus level reaches a very high concentration, then no manure
may be applied. Most soils need to be nearly saturated with phosphorus
to achieve optimum crop yields. The soil phosphorus concentration
should take into account the crop response and phosphorus application
should be restricted when crop yield begins to level off.
The soil test phosphorus method establishes requirements based on
low, medium, high and very high soil condition, and applies the same
restrictions to these measures as are used in the P-Index. States that
adopt this method must establish the soil concentration ranges for each
of these risk factors for each soil type and crop in their state.
EPA anticipates that in most states, the permit authority will
incorporate the State's nutrient standard (590 Standard) into CAFO
permits. For example, if the permit authority, in consultation with the
State Conservationist, adopts a Phosphorus Index, then CAFO permits
would include the entire P-Index as the permit condition dictating how
the application rate must be developed. If a permit authority selects
the Phosphorus Threshold, then the CAFO permits must contain soil
concentration limitations that reflect phosphorus-based application, as
well as the level at which manure application is prohibited.
Each State Conservationist, in consultation with land grant
university scientists and the state, must develop a Phosphorus Index
for that state by May 2001. EPA may consider eliminating the use of the
soil phosphorus threshold level and the soil test phosphorus level as
methods for determining the manure application rate for a CAFO and
requiring the use of the state Phosphorus Index. Scientists studying
phosphorus losses from agricultural lands are supporting the
development and use of the Phosphorus Index since it combines the
factors critical in determining risk of phosphorus rate and transport
to surface waters, including the soil phosphorus threshold level, when
developed. EPA is soliciting comment on this option.
Finally, under Option 2 EPA is proposing to require CAFOs that
transfer manure off-site to provide the recipient of the manure with
information as to the nutrient content of the manure and provide the
recipient with information on the correct use of the manure. See
Section VII.E.4, for a complete discussion of the requirements for off-
site transfer of manure.
As discussed in Section VI, compliance costs for manure transfer
assessed to the CAFO include hauling costs and record keeping. If the
recipient is land applying the manure, the recipient is most likely a
crop farmer, and the recipient is assumed to already have a nutrient
management plan that considers typical yields and crop requirements.
The recipient is also assumed to apply manure and wastes on a nitrogen
basis, so the application costs are offset by the costs for commercial
fertilizer purchase and application. EPA assumes the recipient may need
to sample soils for phosphorus, and costs for sampling identically to
the CAFO, i.e. every three years. EPA has not accounted for costs that
would result from limiting the amount or way recipients are currently
using manure. EPA solicits comment on the impact to recipients who
currently use manure and may have to change their practices as a result
of this requirement. In cases where manure is received for alternative
uses, the recipient is deemed to already maintain the appropriate
records.
EPA solicits comments on whether there should be required training
for persons that will apply manure. There are some states which have
these requirements. Proper application is critical to controlling
pollutant discharges from crop fields. Some states have establish
mandatory training for persons that apply manure. EPA will consult with
USDA on the possibility of establishing a national training program for
manure applicators.
Rotational Grazing. At the request of the environmental community,
EPA has investigated rotational grazing as an alternative to
confinement-based livestock production. Any pasture or grazing
operation is by definition not a form of confinement, therefore use of
these practices are outside of the scope of these regulations.
Intensive rotational grazing is known by many terms, including
intensive grazing management, short duration grazing, savory grazing,
controlled grazing management, and voisin grazing management. This
practice involves rotating livestock and poultry among several pasture
subunits or paddocks, often on a daily basis, to obtain maximum
efficiency of the pasture land.
Due to the labor, fencing, water, and land requirements for
intensive rotational grazing, typically only small dairy operations
with less than 100 head use this practice. Few beef feedlots practice
intensive rotational grazing. Poultry on pasture is usually housed in a
portable building or pen holding up to 100 birds that is moved daily;
rarely are more than 1,000 birds in total raised in this manner. Swine
have also been successfully raised on pasture, most frequently as a
seasonal farrowing operation in combination with seasonal sheep or cow
grazing. Climate and associated growing seasons make it very difficult
for operations to use an intensive rotational grazing system throughout
the entire year. Most dairy operations and beef feedlots that use
rotational grazing typically operate between 3 and 9 months of the
year, with 12 months most likely only in the southern states. Poultry
on pasture are produced for about 6 months, and pigs are typically
farrowed once per year.
Grazing systems are not directly comparable to confined feeding
operations, as one system can not readily switch to the other.
Intensive rotational grazing systems are reported to have advantages
over confined feeding operations: reduced housing and feed costs,
improved animal health, less manure handling, and more economic
flexibility. Intensive rotational grazing also encourages grass growth
and development of healthy sod, which in turn reduces erosion. In a
good rotational system, manure is more evenly distributed and will
break up and disappear from the surface faster.
Despite these advantages, studies do not indicate significant
reductions of
[[Page 3058]]
pathogens or nutrients in runoff to nearby streams as compared to
manured fields. Rotational grazing systems may still require manure
maintenance near watering areas and paths to and from the paddock
areas. There are also limits to the implementation of intensive
rotational grazing systems, which are highly dependent upon: available
acreage, herd size, land resources, labor, water availability,
proximity of pasture area to milking center for dairy operations, and
feed storage capabilities. Grazing systems usually produce lower animal
weight gain and milk production levels, provide limited manure handling
options, and do not provide the level of biosecurity that confinement
farms can obtain.
Proposed Basis for BPT Limitations. EPA is not proposing to
establish BPT requirements for the beef, dairy, swine, veal and poultry
subcategories on the basis of Option 1, because it does not represent
the best practicable control technology. In areas that have high to
very high phosphorus build up in the soils, Option 1 would not require
that manure application be restricted or eliminated. Thus, the
potential for phosphorus to be discharged from land owned or controlled
by the CAFOs would not be controlled by Option 1. Consequently Option 1
would not adequately control discharges of phosphorus from these areas.
Option 2 would reduce the discharge of phosphorus in field runoff by
restricting the amount of phosphorus that may be applied to the amount
that is appropriate for agricultural purposes or prohibiting the
application of manure when phosphorus concentrations in the soil are
very high and additional phosphorus is not needed to meet crop
requirements.
EPA is proposing to establish BPT limitations for the beef, dairy,
swine, veal and poultry subcategories on the basis of Option 2 with the
exception that it is co-proposing options with and without the
certification regulations for off-site land application of manure.
EPA's decision to base BPT limitations on Option 2 treatment reflects
consideration of the total cost of application of technology in
relation to the effluent reduction benefits to be achieved from such
application. Option 2 is expected to cost $549 million under the two-
tier structure and achieve 107 million pounds of pollutant reductions
for a total cost to pound ratio of $0.57. The three-tier structure is
estimated to cost $551 for a total cost to pound ratio of $0.51.
The Option 2 technology is one that is readily applicable to all
CAFOs. The production area requirements represent the level of control
achieved by the majority of CAFOs in the beef, dairy, swine, poultry
and veal subcategories. USDA and the American Society of Agricultural
Engineers cite the 25-year, 24-hour storm as the standard to which
storage structures should comply. This has been the standard for many
years, and most existing lagoons and other open liquid containment
structures are built to this standard. As described above, the land
application requirements associated with Option 2 are believed to
represent proper agricultural practice and to ensure that CAFO manure
is applied to meet the requirements of the crops grown and not exceed
the ability of the soil and crop to absorb nutrients.
EPA believes any of the three methods for determining when manure
should be applied on a phosphorus basis would represent BPT. Each
method has distinct advantages which, depending on the circumstances,
could make one method preferred over another. There has been
considerable work done in this area within the past few years and this
work is continuing. EPA believes that this proposed BPT approach
provides adequate flexibility to allow states to develop an approach
that works best for the soils and crops being grown within their state.
Nonetheless, EPA will continue to work with soil scientists and may
consider standardizing the factors included in the phosphorus index to
develop a standard rating scale, for the purpose of CAFO requirements.
EPA also solicits comment on whether there should be some EPA oversight
or approval of the phosphorus method developed by the states.
Specifically EPA solicits comment whether of EPA should establish
standards that must be included in a phosphorus index. These standards
may include specifying additional criteria which should be considered
in the index, such as distance to surface water. EPA also seeks comment
on whether it should establish minimum standards on how these criteria
must be factored into a Phosphorus Index, such as specifying the weight
to be assigned to the various criteria included in the Index and
assigning the values for specific ranges for each criteria. EPA may
consider establishing a minimum standard for the phosphorus threshold
method for example requiring that at a minimum the phosphorus threshold
be based on the soil phosphorus concentration that would result in a
soluble phosphorus concentration in the runoff of 1 ppm. EPA may also
consider establishing specific sampling protocols for collecting manure
and soil samples and analyzing for nutrients.
CAFOs must also develop and implement a PNP that establishes the
appropriate manure application rate. EPA believes the land application
rates established in accordance with one of the three methods described
in today's proposed regulation, along with the prohibition of manure
application within 100 feet of surface water, will ensure manure and
wastewater are applied in a manner consistent with proper agricultural
use. EPA has included a discussion of how to develop a PNP in section
VIII.C.6.
EPA believes that state sampling and analytical protocols are
effective; however, soil phosphorus levels can vary depending on how
the soil samples are collected. For example, a CAFO that surface-
applies manure will deposit phosphorus in the surface layer of the soil
and should collect soil samples from the top layer of soil. If this
CAFO collects soil samples to a depth of several inches the analysis
may understate the phosphorus concentrations in the soil. EPA solicits
comments on the need to establish sampling protocols for soil sampling.
4. Best Control Technology for Conventional Pollutants (BCT)
In evaluating possible BCT standards, EPA first considered whether
there are any candidate technologies (i.e., technology options); that
are technologically feasible and achieve greater conventional pollutant
reductions than the proposed BPT technologies. (Conventional pollutants
are defined in the Clean Water Act as including: Total Suspended Solids
(TSS), Biochemical Oxygen Demand (BOD), pH, oil and grease and fecal
coliform.) EPA considered the same BAT technology options described
below and their effectiveness at reducing conventional pollutants.
EPA's analysis of pollutant reductions has focused primarily on the
control of nutrients, nitrogen and phosphorus. However, the Agency has
also analyzed what the technology options can achieve with respect to
sediments (or TSS), metals, and pathogens. Although livestock waste
also contains BOD, EPA did not analyze the loadings or loadings
reductions associated with the technology options for BOD. Thus, the
only conventional pollutant considered in the BCT analysis is TSS. EPA
identified no technology option that achieves greater TSS removals than
the proposed BPT technologies (see the Technical Development Document).
EPA does not believe that these technology options would substantially
[[Page 3059]]
reduce BOD loads. There are therefore no candidate technologies for
more stringent BCT limits. If EPA had identified technologies that
achieve greater TSS reductions than the proposed BPT, EPA would have
performed the two part BCT cost test. (See 51 FR 24974 for a
description of the methodology EPA employs when setting BCT standards.)
EPA solicits comment on the assumptions it used in considering BCT.
EPA is proposing to establish BCT limits for conventional
pollutants equivalent to the proposed BPT limits.
5. Best Available Technology Economically Achievable (BAT)
EPA is considering six technology options to control discharges
from CAFOs in the beef, veal and poultry subcategories, and seven
technology options for the dairy and hog subcategories. All of the
technology options include restrictions on land application of manure,
best management practices (BMPs), inspections and record keeping for
the animal confinement areas, and wastewater storage or treatment
structures. The following table summarizes the requirements for each of
the seven technology options. Note that a given technology option may
include a combination of technologies.
Table 8-1.--Requirements Considered in the Technology Options
----------------------------------------------------------------------------------------------------------------
Option 1 Option 2 Option 3 Option 4 Option 5 Option 6 Option 7
----------------------------------------------------------------------------------------------------------------
Zero Discharge w/overflow X X X X Cat.......... ..........
when a 25-24 Design Dairy
Standard is met............
Depth markers for lagoons... X X X X Cattle & X X
Dairy
Annual Manure Testing....... X X X X X X X
N-based PNP................. X .......... .......... .......... .......... .......... ..........
100' LA setback............. X X X X X X X
P-based PNP (where .......... X X X X X X
necessary).................
Soil Test--every 3yrs....... .......... X X X X X X
Zero discharge without any .......... .......... .......... .......... Swine & .......... ..........
allowance for overflow..... Poultry
Hydrologic Link Assessment & .......... .......... X X .......... .......... ..........
Zero Discharge to
Groundwater beneath
Production Area............
Ambient Surface Water .......... .......... .......... X .......... .......... ..........
Sampling (N,P,TSS).........
Anaerobic Digestion w/power .......... .......... .......... .......... Swine Swine & ..........
generation................. Dairy
Frozen/snow covered/ .......... .......... .......... .......... .......... .......... X
saturated application
prohibitions...............
----------------------------------------------------------------------------------------------------------------
X = All Subcategories.
Option 1. This option is equivalent to Option 1 described under BPT
Section VIII.3. Option 1 would require zero discharge from the
production area and that liquid storage be designed, constructed and
maintained to handle all process wastewater and storm water runoff from
the 25-year, 24-hour storm event. In addition, Option 1 requires
management practices to ensure that the production area (which includes
manure and wastewater storage) is being adequately maintained.
Option 1 also would establish a requirement to develop a PNP which
establishes the proper land application rate for manure and wastewater
to meet the nitrogen requirements for the crops being grown by the CAFO
and require a 100 foot setback from surface water, sinkholes, tile
drain inlets and agricultural drainage wells.
Option 2. This option is equivalent to Option 2 described under BPT
(section VII.3). Option 2 includes all of the requirements established
under Option 1. However, Option 2 would further restrict the amount of
manure that can be applied to crop land owned or controlled by the
CAFO. The CAFO would be required to apply manure and wastewater at the
appropriate rate taking into account the nutrient requirements of the
crop and soil conditions. Specifically, Option 2 would require that
manure be applied at crop removal rate for phosphorus if soil
conditions warrant and, if soils have a very high level phosphorus
build-up, no manure or wastewater could be applied to the crop land
owned or controlled by the CAFO.
Option 3. Option 3 includes all the requirements for Option 2 and
would require that all operations perform an assessment to determine
whether the ground water beneath the feedlot and manure storage area
has a direct hydrological connection to surface water. As described in
Section VII, EPA has authority to control discharges to surface water
through ground water that has a direct hydrological connection to
surface water. A hydrological connection refers to the interflow and
exchange between surface impoundments and surface water through an
underground corridor or ground water. EPA is relying on the permitting
authority to establish the region-specific determination of what
constitutes a direct hydrological link. Option 3 would require all
CAFOs to determine whether they have a direct hydrological connection
between the ground water beneath the production area and surface
waters. If a link is established, the facility would have to monitor
ground water up gradient and down gradient of the production area to
ensure that they are achieving zero discharge to ground water. EPA has
assumed that CAFOs would comply with the zero discharge requirement by
installing liners of synthetic material beneath lagoons and ponds, and
impervious pads below storage of dry manure stockpiles. EPA's costs for
liners reflect both a synthetic liner and compacted clay to protect the
liner and prolong its useful life.
CAFOs with a direct hydrologic link would be required to sample the
groundwater from the monitoring wells (located up gradient and down
gradient of the production area) at a minimum frequency of twice per
year. These samples are necessary to ensure that pollutants are not
being discharged through groundwater to surface water from the
production area. The samples shall be monitored for nitrate, ammonia,
total coliform, fecal coliform, Total Dissolved Solids (TDS) and total
chloride. Differences in concentration of these pollutants between the
monitoring
[[Page 3060]]
well(s) located up gradient and down gradient of the production area
are assumed to represent a discharge of pollutants and must be
prevented. As noted below, coliforms are not necessarily good
indicators of livestock discharges. Also, it is difficult to determine
``concentrations'' of coliforms as they are not necessarily evenly
distributed in the way chemical contaminants generally are. EPA
requests comment on technical concerns associated with including total
and fecal coliforms in the groundwater monitoring and protection
requirements and on ways to address such concerns.
Option 4. Option 4 includes all the requirements for Option 3 and
would require sampling of surface waters adjacent to feedlots and/or
land under control of the feedlot to which manure is applied. This
option would require CAFOs to sample surface water both upstream and
downstream from the feedlot and land application areas following a one
half inch rain fall (not to exceed 12 sample events per year). The
samples would be analyzed for concentrations of nitrogen, phosphorus
and total suspended solids (TSS). EPA selected these pollutants because
it believes these pollutants provide an adequate indication of whether
a discharge is occurring from the operation. All sampling results would
be reported to the permit authority. Any difference in concentration
between the upstream and downstream samples would be noted. This
monitoring requirement could provide some indication of discharges from
the land application or feedlot areas.
EPA also considered requiring that pathogens and BOD5 be
analyzed in samples collected. EPA decided that this would not be
practical, because sampling under Option 4 is linked to storm events
which limits the ability to plan in advance for analysis of the samples
and making arrangements for shipping samples to laboratories. Fecal
coliform and BOD samples all have very short holding times before they
need to be analyzed. Most CAFOs are located in rural areas with limited
access to overnight shipping services and are probably not near
laboratories that can analyze for these pollutants. Further, fecal
coliform and similar analytes that are typically used as indicators in
municipal wastewater are not necessarily good indicators of livestock
discharges. If CAFOs were required to monitor for pathogens which could
indicate discharges of manure or CAFO wastewater, it would be better to
require monitoring for fecal enterococci, or even specific pathogens
such as salmonella, Giardia, and Cryptosporidium. However, the cost for
analyzing these parameters is very high and the holding times for these
parameters are also very short.
Furthermore, EPA determined pathogen analyses are also
inappropriate because the pathogens in manure are found in areas
without animal agriculture. For example Enterobacter, Klebsiella,
Bacillus cereus, Clostridium, and Listeria are all naturally occurring
soil and plant microorganisms and are found in soils that have never
received manure. Pathogens may also be deposited onto land from
wildlife. Thus, EPA concluded that requiring analysis for these
pollutants was impractical at best and potentially very expensive.
Option 5. Option 5 includes the requirements established by Option
2 and would establish a zero discharge requirement from the production
area that does not allow for an overflow under any circumstances. By
keeping precipitation from contacting with the animals, raw materials,
waste handling and storage areas, CAFOs could operate the confinement
areas and meet zero discharge regardless of rainfall events. Option 5
includes the same land application requirements as Option 2, which
would restrict the rate of manure and wastewater application to a crop
removal rate for phosphorus where necessary depending on the specific
soil conditions at the CAFO. Additionally, as in Option 2, application
of manure and wastewater would be prohibited within 100 feet of surface
water.
EPA considered Option 5 for the poultry, veal and hog
subcategories, where it is common to keep the animals in total
confinement, feed is generally maintained in enclosed hoppers and the
manure and wastewater storage can be handled so as to prevent it from
contacting storm water. EPA considered a number of ways a facility
might meet the requirements of no discharge and no overflow. In
estimating the costs associated with Option 5, EPA compared the total
costs and selected the least expensive technology for a given farm
size, geographic region, and manure management system. Costs also
depend on whether the facility's PNP indicates land application must be
based on nitrogen or phosphorus, and how many acres the facility
controls. The technologies described below were used singularly or in
combination to meet the requirements of Option 5.
Many facilities can achieve Option 5 by covering open manure and
storage areas, and by constructing or modifying berms and diversions to
control the flow of precipitation. EPA costed broiler and turkey
operations for storage sheds sufficient to contain six months of
storage. Some poultry facilities, particularly turkey facilities,
compost used litter in the storage sheds, allowing recycle and reuse of
the litter. EPA costed swine, veal, and poultry facilities which use
lagoons or liquid impoundments for impoundment covers.
EPA believes that operations which have excess manure nutrients and
use flush systems to move manure out of the confinement buildings will
have an incentive to construct a second lagoon cell. A second storage
or treatment cell should accomplish more decomposition of the waste and
will allow flush water to be recycled out of the second cell or lagoon,
thus reducing the addition of fresh water to the system. Reducing the
total volume of stored waste reduces the risk of a catastrophic failure
of the storage structure. In the absence of large volumes of water,
facilities with an excess of manure nutrients will be able to transfer
the excess manure off-site more economically due to a lower volume of
waste needing to be hauled. Water reduction also results in a more
concentrated product which would have a higher value as a fertilizer.
Covered systems substantially reduce air emissions, and help
maintain the nutrient value of the manure. Covered systems also may
benefit facilities by reducing odors emanating from open storage. This
option also creates a strong incentive for facilities to utilize
covered lagoon digesters or multistage covered systems for treatment.
The use of covers will allow smaller and more stable liquid
impoundments to be constructed. Finally, the use of covered
impoundments encourages treatment and minimal holding times, resulting
in pathogen die-off and reduction of BOD and volatile solids.
Other technologies can be effectively used at some facilities, such
as conversion of flush systems to scrape systems, or by retrofit of
slatted floor housing to V-shaped under house pits that facilitate
solid liquid separation. Solids can be stored or composted in covered
sheds, while the urine can be stored in small liquid impoundments.
In the event the facility has insufficient land to handle all
nutrients generated, EPA evaluated additional nutrient management
strategies. First, the manure could pass through solid separation,
resulting in a smaller volume of more concentrated nutrients that is
more effectively transported offsite. Second, land application could be
based on the uppermost portion of a covered lagoon containing a more
dilute concentration of nutrients. Data indicates much of the
phosphorus
[[Page 3061]]
accumulates in the bottom sludge, which is periodically removed and
could be transported offsite for proper land application. Though many
facilities report sludge removal of a properly operating lagoon may
occur as infrequently as every 20 years, EPA assumed facilities would
pump out the phosphorus and metals enriched sludge every three years.
This is consistent with the ANSI/ASAE standards for anaerobic treatment
lagoons (EP403.3 JUL99) that indicates periodic sludge removal and
liquid drawdown is necessary to maintain the treatment volume of the
lagoon. Third, swine and poultry farms can implement a variety of
feeding strategies, as discussed under Option 2 (see Section VII.C.3).
Feed management including phytase, multistage diets, split sex feeding,
and precision feeding have been shown to reduce phosphorus content in
the manure by up to 50%. This results in less excess nutrients to be
transported offsite, and allows for more manure to be land applied at
the CAFO.
EPA is aware of a small number of swine facilities that are
potentially CAFOs and use either open lots or some type of building
with outside access to confine the animals. EPA data indicate these
types of operations are generally smaller operations that would need to
implement different technologies than those described above. CAFOs that
provide outdoor access for the animals need to capture contaminated
storm water that falls on these open areas. Open hog lots would find it
difficult to comply with a requirement that does not allow for
overflows in the event of a large storm. EPA costed these facilities to
replace the open lots with hoop houses to confine the animals and
storage sheds to contain the manure. Hoop structures are naturally
ventilated structures with short wooden or concrete sidewalls and a
canvas, synthetic, or reflective roof supported by tubes or trusses.
The floor of the house is covered with straw or similar bedding
materials. The manure and bedding is periodically removed and stored.
The drier nature of the manure lends to treatment such as composting as
well as demonstrating reduced hauling costs as compared to liquid
manure handling systems.
EPA considered a variation to Option 5 that would require CAFOs to
use dry or drier manure handling practices. This variation assumed
conversion to a completely dry manure handling system for hogs and
laying hens using liquid manure handling systems. In addition to the
advantages of reduced water use described above, a completely dry
system is more likely to minimize leaching to ground water and, where
directly connected hydrologically to surface water, will also reduce
loads to surface waters. For the beef and dairy subcategories EPA
assumes that the liquid stream would be treated to remove the solids
and the solids would be composted. It is not practical to assume beef
and dairy operations can avoid the generation of liquid waste because
operations in both subcategories tend to have animals in open areas
exposed to precipitation resulting in a contaminated storm water that
must be captured. Also dairies generate a liquid waste stream from the
washing of the milking parlor.
Option 6. Option 6 includes the requirements of Option 2 and
requires that large hog and dairy operations (hog operations and
dairies with 2,000 AUs) would install and implement enclosed anaerobic
digestion to treat their manure and use the captured methane gas for
energy or heat generation. With proper management, such a system can be
used to generate additional on-farm revenue. The enclosed system will
reduce air emissions, especially odor and hydrogen sulfide, and
potentially reduces nitrogen losses from ammonia volatilization. The
treated effluent will also have less odor and should be more
transportable relative to undigested manure, making offsite transfer of
manure more economical. Anaerobic digestion under thermophilic or
heated conditions would achieve additional pathogen reductions.
Option 7. Option 7 includes the requirements of Option 2 and would
prohibit manure application to frozen, snow covered or saturated
ground. This prohibition requires that CAFOs have adequate storage to
hold manure for the period of time during which the ground is frozen or
saturated. The necessary period of storage ranges from 45 to 270 days
depending on the region. In practice, this may result in some
facilities needing storage to hold manure and wastes for 12 months. EPA
requests comment on whether there are specific conditions which warrant
a national standard that prohibits application when the ground is
frozen, snow covered or saturated.
6. Proposed Basis for BAT
BAT Requirements for the Beef and Dairy Subcategories. EPA is
proposing to establish BAT requirements for the beef and dairy
subcategories based on the same technology option. The beef subcategory
includes stand-alone heifer operations and applies to all confined
cattle operations except for operations that confine mature dairy
cattle or veal. Under the two-tier structure, the BAT requirements
would apply to any beef operation with 500 head of cattle or more.
Under the three-tier structure, the BAT requirements for beef would
apply to any operation with more than 1,000 head of cattle and any
operation with 300 to 1,000 head which meets the conditions identified
in section VII.B.2 and 3 of this preamble.
EPA proposes to establish BAT requirements for dairy operations
which meet the following definitions: under the two-tier structure, all
dairy with 350 head of mature dairy cows or more would be subject to
today's proposed BAT requirements. Under the three-tier approach any
dairy with more than 700 head of mature dairy cows or 250 to 700 head
of mature dairy cows which meets the conditions identified in section
VII of this preamble would be subject to today's proposed BAT
requirements.
EPA proposes to establish BAT requirements for the beef and dairy
subcategories based on Option 3. BAT would require all beef and dairy
CAFOs to monitor the ground water beneath the production area by
drilling wells up gradient and down gradient to measure for a plume of
pollutants discharged to ground water at the production area. A beef or
dairy CAFO can avoid this ground water monitoring by demonstrating, to
the permit writer's satisfaction, that it does not have a direct
hydrological connection between the ground water beneath the production
area and surface waters.
EPA proposes to require CAFOs in the beef and dairy subcategories
to monitor their ground water unless they determine that the production
area is located above ground water which has a direct hydrological
connection to surface water. CAFOs would have to monitor for ammonia,
nitrate, fecal coliform, total coliform, total chlorides and TDS. EPA
selected these pollutants because they may be indicators of livestock
waste and are pollutants of concern to ground water sources. If the
down gradient concentrations are higher than the up gradient
concentration this indicates a discharge which must be controlled. As
discussed above, EPA requests comment on the inclusion of total and
fecal coliforms among the required analytes. For operations that do not
demonstrate that they do not have a direct hydrologic connection, EPA
based the BAT zero discharge requirement on the installation of liners
in liquid storage structures such as lagoons and storm water retention
ponds and concrete pads for the storage of dry manure stockpiles.
Beef and dairy CAFOs must also develop and implement a PNP that is
based on application of manure and
[[Page 3062]]
wastewater to crop land either at a crop removal rate for phosphorus
where soil conditions require it, or on the nitrogen requirements of
the crop. EPA believes the land application rates established in
accordance with one of the three methods described in today's proposed
regulation, along with the prohibition of manure application within 100
feet of that surface water will ensure manure and wastewater are
applied in a manner consistent with proper agricultural use. See EPA's
document entitled ``Managing Manure Nutrients at Concentrated Animal
Feeding Operations'' for the detailed discussion of how a PNP is
developed.
EPA believes that technology option 3 is economically achievable
and represents the best available technology for the beef and dairy
subcategories, and is therefore proposing this option as BAT for these
subcategories. The incremental annual cost of Option 3 relative to
Option 2 for these subcategories is $170 million pre-tax under the two-
tier structure, and $1205 million pre-tax under the three tier
structure. EPA estimated annual ground water protection benefits from
the proposed requirements of $70-80 million. EPA estimates Option 3 for
the beef and dairy subcategories will reduce loadings to surface waters
from hydrologically connected ground water by 3 million pounds of
nitrogen. To determine economic achievability, EPA analyzed how many
facilities would experience financial stress severe enough to make them
vulnerable to closure under each regulatory option. As explained in
more detail in the Economic Analysis, the number of facilities
experiencing stress may indicate that an option might not be
economically achievable, subject to additional considerations. Under
Option 2, no facilities in either the beef or dairy sectors were found
to experience stress, while under Option 3, the analysis projects 10
beef and 329 dairy CAFOs would experience stress under the two-tier
structure, and 40 beef and 610 dairy CAFOs would experience stress
under the three-tier structure. Of these, EPA has determined that 40
beef operations are considered small businesses based on size standards
established by the Small Business Administration. This analysis assumes
that 76% of affected operations would be able to demonstrate that their
ground water does not have a hydrological connection to surface water
and would therefore not be subject to the proposed requirements. EPA
projects the cost of making this demonstration to the average CAFO
would be $3,000. EPA is aware that concerns have been raised about
these cost estimates, and about its estimates of how many facilities
would be able to avoid the groundwater monitoring and protection
requirements on this basis. EPA requests comment on this analysis and
on its proposed determination that Option 3 is economically achievable
for the beef and dairy sectors.
EPA is not proposing to base BAT requirements for the beef and
dairy subcategories on Option 2 because it does not as comprehensively
control discharges of pollutants through ground water which has a
direct hydrological connection with surface water. However, EPA is
requesting comment on Option 2 as a possible basis for BAT in the beef
and dairy subcategories. EPA notes that even under Option 2, permit
writers would be required to consider whether a facility is located in
an area where its hydrogeology makes it likely that the ground water
underlying the facility is hydrologically connected to surface water
and whether a discharge to surface water from the facility through such
hydrologically connected ground water may cause or contribute to a
violation of State water quality standards. In cases where such a
determination was made by the permit writer, he or she would impose
appropriate conditions to prevent discharge via a hydrologic connection
would be included in the permit. The main difference between Option 2
and Option 3 is thus that under Option 3, the burden of proof would be
on the facility to demonstrate that it does not discharge to ground
water that is hydrologically connected to surface water, while under
Option 2, ground water protection and monitoring requirements would
only be included in the permit if there were an affirmative
determination by the permitting authority that such requirements were
necessary to prevent a discharge of pollutants to surface waters via
hydrologically connected ground water that may be sufficient to cause a
violation of State water quality standards. Under today's proposal, the
Option 2 approach to preventing discharges via hydrologically connected
ground water would be used for the veal, swine and poultry
subcategories. EPA requests comment on applying this approach to the
beef and dairy subcategories as well.
EPA is not proposing to establish BAT requirements for the beef and
dairy subcategories on the basis of Option 4 due to the additional cost
associated with ambient stream monitoring and because the addition of
in-stream monitoring does not by itself achieve any better controls on
the discharges from CAFOs as compared to the other options. In-stream
monitoring could be an indicator of discharges occurring from the CAFO;
however, it is equally likely that in-stream monitoring will measure
discharges that may be occurring from adjacent non-CAFO agricultural
sources. Through the use of commercial fertilizers these non-CAFO
sources would likely be contributing the same pollutants being analyzed
under Option 4. EPA has not identified a better indicator parameter
which would isolate constituents from CAFO manure and wastewater from
other possible sources contributing pollutants to a stream. Pathogen
analysis could be an indicator if adjacent operations do not also have
livestock or are not using manure or biosolids as fertilizer sources.
However, as described earlier, EPA has concerns about the ability of
CAFOs to collect and analyze samples for these pollutants because of
the holding time constraints associated with the analytical methods for
these parameters. Accordingly, EPA does not believe that specifying
these additional in-stream monitoring BMP requirements would be
appropriate; and would not be useful in ensuring compliance with the
Clean Water Act. Moreover, in-stream monitoring would be a very costly
requirement for CAFOs to comply with.
EPA is not proposing to establish BAT requirements for the beef and
dairy subcategories on the basis of Option 5. Option 5 would require
zero discharge with no overflow from the production area. Most beef
feedlots are open lots which have large areas from which storm water
must be collected; thus, it is not possible to assume that the
operation can design a storm water impoundment that will never
experience an overflow even under the most extreme storm. Stand alone
heifer operations (other than those that are pasture-based) are
configured and operated in a manner very similar to beef feedlots.
Unlike the hog, veal and poultry subcategories, EPA is not aware of any
beef operations that keep all cattle confined under roof at all times.
Dairies also frequently keep animals in open areas for some period
of time, whether it is simply the pathway from the barn to the milk
house or an open exercise lot. Storm water from these open areas must
be collected in addition to any storm water that contacts food or
silage. As is the case for beef feedlots, the runoff volume from the
exposed areas is a function of the size of the area where the cattle
are maintained, and the amount of precipation. Since the CAFO operator
cannot control the amount of precipation, there always remains the
possibility that an extreme storm event
[[Page 3063]]
can produce enough rainfall that the resulting runoff would exceed the
capacity of the lagoon.
EPA did consider a new source option for new dairies that would
enforce total confinement of all cattle at the dairy. This new source
option poses a barrier to entry for new sources, therefore, EPA assumes
that this option if applied to existing sources would be economically
unachievable. Furthermore, EPA did evaluate a variation of Option 5
that would apply to existing beef and dairy operations and would
require the use of technologies which achieve a less wet manure. These
technologies include solid-liquid separation and composting the solids.
EPA is not proposing to establish BAT on the use of these technologies,
but does believe these technologies may result in cost savings at some
operations. Additionally, composting will achieve pathogen reductions.
As described in section VIII.C.9., EPA is continuing to examine
pathogen controls and may promulgate requirements on the discharge of
pathogens. If EPA set limitations on pathogens, composting technology
would likely become a basis for achieving BAT limits. EPA invites
comment on composting and its application to dry beef and dairy manure.
For any operation that has inadequate crop land on which to apply
its manure and wastewater, solid-liquid separation and composting could
benefit the CAFO, as these technologies will make the manure more
transportable. Drier manure is easier to transport; and therefore, EPA
believes solid liquid separation and composting will be used in some
situations to reduce the transportation cost of excess manure. In
addition, composting is a value-added process that improves the
physical characteristics (e.g., reduces odor and creates a more
homogenous product) of the manure. It can also make the manure a more
marketable product. As a result, a CAFO with excess manure may find it
easier to give away, or even sell, its excess manure. EPA encourages
all CAFOs to consider technologies that will reduce the volume of
manure requiring storage and make the manure easier to transport.
Option 6, which requires anaerobic digestion treatment with methane
capture, was not considered for the beef subcategory, but was
considered for the dairy subcategory for treatment of liquid manure.
Anaerobic digestion can only be applied to liquid waste. As described
previously in Section VI, beef feedlots maintain a dry manure, yet they
capture storm water runoff from the dry lot and manure stockpile. The
storm water runoff is generally too dilute to apply digestion
technology.
Most dairies, however, handle manure as a liquid or slurry which is
suited to treatment through anaerobic digestion. EPA concluded that
application of anaerobic digesters at dairies will not necessarily lead
to significant reductions in the pollutants discharges to surface
waters from CAFOs. An anaerobic digester does not eliminate the need
for liquid impoundments to store dairy parlor water and barn flush
water and to capture storm water runoff from the open areas at the
dairy. Neither do digesters reduce the nutrients, nitrogen or
phosphorus. Thus, basing BAT on digester technology would not change
the performance standard that a production area at a CAFO would achieve
and would not reduce or eliminate the need for proper land application
of manure. Digesters were considered because they achieve some degree
of waste stabilization and more importantly they capture air emissions
generated during manure storage. The emission of ammonia from manure
storage structures is a potentially significant contributor of nitrogen
to surface waters. Covered anaerobic digesters will prevent these
emissions while the waste is in the digester, but the digester does not
convert the ammonia into another form of nitrogen, such as nitrate,
which is not as volatile. Thus as soon as the manure is exposed to air
the ammonia will be lost. Operations may consider additional management
strategies for land application such as incorporation in order to
maintain the nitrogen value as fertilizer and to reduce emissions.
As mentioned above, the application of ambient temperature or
mesophilic anaerobic digesters would not change the performance
standard that a CAFO would achieve. EPA considered anaerobic digestion
as a means to control pathogens. Thermophilic digestion which applies
heat to the waste will reduce pathogens. As described in Section
VIII.C.9. EPA is still evaluating effective controls for pathogens.
EPA is not proposing to base BAT requirements on Option 7 for the
beef and dairy subcategories. Option 7 would prohibit manure
application on saturated, snow covered or frozen ground. Pollutant
runoff associated with application of manure or wastewater to
saturated, snow covered or frozen ground is a site specific
consideration, and depends on a number of site specific variables,
including distance to surface water and slope of the land. EPA believes
that establishing a national standard that prohibits manure or
wastewater application is inappropriate because of the site specific
nature of these requirements and the regional variability across the
nation. This is described in Section VII.E.5.b, above. However, Section
VII also explains that EPA is proposing to revise 40 CFR Part 122 to
require the permit authority to include, on a case-by-case basis,
restrictions on the application of CAFO waste to frozen, snow covered
or saturated ground in CAFO permits. This permit condition should
account for topographic and climatic conditions found in the state.
Requirements for the beef and dairy subcategories would still allow
for an overflow in the event of a chronic or catastrophic storm that
exceeds the 25-year, 24-hour storm. EPA believes this standard reflects
the best available technology. Under the proposed revisions to Part
122, permits will require that any discharge from the feedlot or
confinement area be reported to the permitting authority within 24
hours of the discharge event. The CAFO operator must also report the
amount of rainfall and the approximate duration of the storm event.
BAT Requirements for the Swine, Veal and Poultry Subcategories. EPA
is proposing to establish BAT requirements for the swine, veal and
poultry subcategories based on Option 5. For the purpose of simplifying
this discussion, the term poultry is used to include chickens and
turkeys. Option 5 requires zero discharge of manure and process
wastewater and provides no overflow allowance for manure and wastewater
storage. Land application requirements for these operations would be
the same as the requirements under Option 2.
EPA is proposing Option 5 because swine, veal and poultry
operations can house the animals under roof and feed is also not
exposed to the weather. Thus, there is no opportunity for storm water
contamination. Broiler and turkey operations generate a dry manure
which can be kept covered either under a shed or with tarps. Laying
hens with dry manure handling usually store manure below the birds'
cages and inside the confinement building. Veal and poultry operations
confine the animals under roof, thus there are no open animal
confinement areas to generate contaminated storm water. Those
operations with liquid manure storage can comply with the restrictions
proposed under this option by diverting uncontaminated storm water away
from the structure, and covering the lagoons or impoundments.
The technology basis for the poultry BAT requirements at the
production
[[Page 3064]]
area are litter sheds for broiler and turkey CAFOs, and underhouse
storage for laying hens with dry manure handling systems. For laying
hen CAFOs with liquid manure handling systems, EPA's technology basis
is solid separation and covered storage for the solids and covered
lagoons.
Laying hen farms may also have egg wash water from in-line or off-
line processing areas. Only 10% of laying hen operations with fewer
than 100,000 birds have on farm egg processing, while 35% of laying hen
operations with more than 100,000 birds have on farm egg processing.
The wash water is often passed through a settling system to remove
calcium, then stored in above ground tanks, below ground tanks, or
lagoons. Today's proposal is based on covered storage of the egg wash
water from on-farm processing, to prevent contact with precipitation.
The ultimate disposal of egg wash water is through land application
which must be done in accordance with the land application rates
established in the PNP. EPA believes the low nutrient value of egg
washwater is unlikely to cause additional incremental costs to laying
hen facilities to comply with the proposed land application
requirements.
EPA assumes large swine operations (e.g., operations with more than
1,250 hogs weighing 55 pounds or greater) operate using total
confinement practices. EPA based BAT Option 5 on the same approach
described above of covering liquid manure storage. CAFOs can operate
covered lagoons as anaerobic digesters which is an effective technology
for achieving zero discharge and will provide the added benefits of
waste stabilization, odor reduction and control of air emissions from
manure storage structures. Anaerobic digesters also can be operated to
generate electricity which can be used by the CAFO to offset operating
costs.
Although Option 5 is the most expensive option for the hog
subcategory, as shown on Table X.E.2(a), EPA believes this option
reflects best available technology economically achievable because it
prevents discharges resulting from liquid manure overflows that occur
in open lagoons and pond. Similarly, the technology basis of covered
treatment lagoons and drier manure storage is believed to reduce the
likelihood of those catastrophic lagoon failures associated with heavy
rainfalls. Option 5 also achieves the greatest level of pollutant
reductions from runoff reaching the edge of the field. Non-water
quality environmental impacts include reduced emissions and odor, with
a concurrent increase in nitrogen value of the manure, however as
mentioned previously, the ammonia concentration is not reduced and once
the manure is exposed to air the ammonia will volatilize. Water
conservation and recycling practices associated with Option 5 will
promote increased nutrient value of the manure, reduced hauling costs
via reduced water content, and less fresh water use.
The technology basis of Option 5, solid-liquid separation and
storage of the solids, has the advantage of creating a solid fraction
which is more transportable, thus hog CAFOs that have excess manure can
use this technology to reduce the transportation costs.
EPA is aware of three open lot hog operations that have more than
1,250 hogs and there may be a small number of others, but the
predominant practice is to house the animals in roofed buildings with
total confinement. For open lot hog CAFOs, EPA is proposing to base BAT
the application of hoop structures as described above.
Veal operations use liquid manure management and store manure in
lagoons. EPA has based BAT on covered manure and feed storage. The
animals are housed in buildings with no outside access. Thus, by
covering feed and waste storage the need to capture contaminated storm
water is avoided.
In evaluating the economic achievability of Option 5 for the swine,
veal and poultry subcategories, EPA evaluated the costs and impacts of
this option relative to Option 2. For these subcategories, the
incremental annual cost of Option 5 over Option 2 would be $110 million
pre-tax under the two-tier structure, and $140 million pre-tax under
the three-tier structure. Almost all of these incremental costs are
projected to be in the swine sector. Since the majority of the costs
are borne by the swine subcategory, EPA solicits comment on
establishing BAT on the basis Option 5 for the only the veal and
poultry subcategories, and establishing BAT on the basis of Option 2
that the swine subcategory. EPA projects that there would be no
additional costs under the two-tier structure, and only very small
additional costs under the three-tier structure for the veal and
poultry subcategories to move from Option 2 to Option 5. Under Option
2, EPA estimates 300 swine operations and 150 broiler operations would
experience stress under the two-tier structure, and 300 swine
operations and 330 broiler operations would experience stress under the
three-tier structure. Under Option 5 an additional 1,120 swine
operations would experience stress under both the two-tier and three-
tier structures. All affected hog operations have more than 1000 AU.
None of these affected hog operations are small businesses based on the
Small Business Administration's size standards. There would be no
additional broiler operations experiencing stress under Option 5, and
no veal, layer, or turkey operations are projected to experience stress
under either Option 2 or Option 5. EPA did not analyze the benefits of
Option 5 relative to Option 2. Under Option 2 operations are required
to be designed, constructed and operated to contain all process
generated waste waters, plus the runoff from a 25-year, 24-hour
rainfall event for the location of the point source. Thus, the benefit
of Option 5 over Option 2 would be the value of eliminating discharges
during chronic or catastrophic rainfall events of a magnitude of the
25-year, 24-hour rainfall event or greater. Further benefit would be
realized as a result of increased flexibility on the timing of manure
application to land. By preventing the rainfall and run-off from mixing
with wastewater, CAFOs would not need to operate such that land
application during storm events was necessary.
EPA is not proposing Option 2 for these sectors. However, EPA notes
that at the time of the SBREFA outreach process, removing the 25-year,
24-hour design standard for any sector was not considered largely due
to concern that a different design standard would lead to larger
lagoons or impoundments. EPA staff explicitly stated this to the SERs
and other member of the Panel. Although not extensively discussed,
since it did not appear at that time to be an issue, retention of this
standard was supported by both the SERs and the Panel. At that time,
EPA was not planning to evaluate such an option because of the concern
that this would encourage larger lagoons. Since the Panel concluded it
outreach, EPA decided to evaluate, and ultimately propose removing this
design standard for the veal, swine and poultry subcategories because
of reports of lagoon failures resulting from rainfall and poor
management. As mentioned previously, all of these sectors maintain
their animals under roof eliminating the need to capture contaminated
storm water from the animal confinement area. In addition, most poultry
operations generate a dry manure, which when properly stored, under
some type of cover, eliminates any possibility of an overflow in the
event of a large storm. Therefore EPA believes that Option 5 technology
which prevents the introduction of storm water into manure
[[Page 3065]]
storage is achievable and represents Best Available Technology, without
redesigning the capacity of existing manure storage units. However, EPA
requests comment on retaining te 25-year, 24-hour storm design standard
(and thus basing BAT on Option 2) for these sectors, consistent with
its intention at the time of the SBREFA outreach process.
EPA is not proposing to base BAT for the swine, poultry and veal
subcategories on Option 3, because EPA believes Option 5 is more
protective of the environment. If operators move towards dry manure
handling technologies and practices to comply with Option 5, there
should be less opportunity for ground water contamination and surface
water contamination through a direct hydrological connection. EPA
strongly encourages any newly constructed lagoons or anaerobic
digesters to be done in such a manner as to minimize pollutant losses
to ground water. A treatment lagoon should be lined with clay or
synthetic liner or both and solid storage should be on a concrete pad
or preferably a glass-lined steel tank as EPA has included in its
estimates of BAT costs. Additionally, Option 5 provides the additional
non-water quality benefit of achieving reductions in air emissions from
liquid storage systems. EPA estimates that the cost of complying with
both Option 3 and 5 at existing facilities would be economically
unachievable.
EPA believes the proposed technology basis for broilers, turkeys
and laying hens with dry manure management will avoid discharges to
ground water since the manure is dry and stored in such a way as to
prevent storm water from reaching it. Without some liquid to provide a
transport mechanism, pollutants cannot move through the soil profile
and reach the ground water and surface water through a direct
hydrological connection.
EPA is not proposing to base BAT on Option 4 for the same reasons
described above for the beef and dairy subcategories.
EPA is not proposing to base BAT on Option 6, because EPA believes
that the zero discharge aspect of the selected option will encourage
operations to consider and install anaerobic digestion in situations
where it will be cost effective.
As with beef and dairy, EPA is not proposing to base BAT for swine,
veal and poultry on Option 7, but believes that permit authorities
should establish restrictions as necessary in permits issued to CAFOs.
Swine, veal and poultry operations should take the timing of manure
application into account when developing the PNP. Any areas that could
result in pollutant discharge from application of manure to frozen,
snow covered or saturated ground should be identified in the plan and
manure or wastewater should not be applied to those areas when there is
a risk of discharge.
EPA solicits comment on the use of remote liquid level monitoring
at livestock operations. As described above in Section VIII.C.3, this
technology could provide advanced notification that levels are reaching
a critical point, and corrective actions could then be taken. This
technology does not prevent precipitation from entering the lagoon and
does not prevent overflows, therefore EPA chose not to propose this
technology as BAT for swine or veal operations. However, EPA solicits
comments on applicability of this technology to livestock operations,
especially at swine and veal as an alternative to covers on lagoons.
PNP Requirements
There are a number of elements that are addressed by both USDA's
``Guidance for Comprehensive Nutrient Management Plans (CNMPs)'' and
EPA's PNP which would be required by the effluent guidelines and NPDES
proposed rules and is detailed in the guidance document ``Managing
Manure Nutrients at Concentrated Animal Feeding Operations.'' EPA's
proposed PNP would establish requirements for CAFOs that are consistent
with the technical guidance published by USDA experts, but go beyond
that guidance by identifying specific management practices that must be
implemented. What follows is a brief description of what must be
included in a PNP.
General Information. The PNP must have a Cover Sheet which contains
the name and location of the operation, the name and title of the owner
or operator and the name and title of the person who prepared the plan.
The date (month, day, year) the plan was developed and amended must be
clearly indicated on the Cover Sheet. The Executive Summary would
briefly describe the operation in terms of herd or flock size, total
animal waste produced annually, crop identity for the full 5 year
period including a description of the expected crop rotation and,
realistic yield goal. The Executive Summary must include indication of
the field conditions for each field unit resulting from the phosphorus
method used (e.g., phosphorus index), animal waste application rates,
the total number of acres that will receive manure, nutrient content of
manure and amount of manure that will be shipped off-site. It should
also identify the manure collection, handling, storage, and treatment
practices, for example animals kept on bedding which is stored in a
shed after removal from confinement house, or animals on slatted floors
over a shallow pull plug pit that is drained to an outdoor in-ground
slurry storage inpoundment. Finally, the Executive Summary would have
to identify the watershed(s) in which the fields receiving manure are
located or the nearest surface water body. While the General
Information section of a PNP would give a general overview of the CAFO
and its nutrient management plan, subsequent sections would provide
further detail.
Animal Waste Production. This subsection details types and
quantities of animal waste produced along with manure nutrient sampling
techniques and results. Information would be included on the maximum
number of livestock ever confined and the maximum livestock capacity of
the CAFO, in addition to the annual livestock production. This section
would provide an estimate of the amount of animal waste collected each
year. Each different animal waste source should be sampled annually and
tested by an accredited laboratory for nitrogen, phosphorous,
potassium, and pH.
Animal Waste Handling, Collection, Storage, and Treatment. This
subsection details best management practices to protect surface and
groundwater from contamination during the handling, collection,
storage, and treatment of animal waste. A review would have to be
conducted of potential water contamination sources from existing animal
waste handling, collection, storage, and treatment practices. The
capacity needed for storage would be calculated.
Feedlot runoff would have to be contained and adequately managed.
Runoff diversion structures and animal waste storage structures would
have to be visually inspected for: seepage, erosion, vegetation, animal
access, reduced freeboard, and functioning rain gauges and irrigation
equipment, on a weekly basis. Deficiencies based on visual inspections
would have to be identified and corrected within a reasonable time
frame. Depth markers would have to be permanently installed in all
lagoons, ponds, and tanks. Lagoons, ponds, and tanks would have to be
maintained to retain capacity for the 25-year, 24-hour storm event.
Dead animals, required to be kept out of lagoons, would have to be
properly handled and disposed of in a timely
[[Page 3066]]
manner. Finally, an emergency response plan for animal waste spills and
releases would have to be developed.
Land Application Sites. This subsection details field
identification and soil sampling. County(ies) and watershed code(s)
where feedlot and land receiving animal waste applications are located
would be identified. Total acres of operation under the control of the
CAFO (owned and rented) and total acres where animal waste will be
applied would be included. A detailed farm map or aerial photo, to be
included, would have to indicate: location and boundaries of the
operation, individual field boundaries, field identification and
acreage, soil types and slopes, and the location of nearby surface
waters and other environmentally sensitive areas (e.g., wetlands,
sinkholes, agricultural drainage wells, and aboveground tile drain
intakes) where animal waste application is restricted.
Separate soil sampling, using an approved method, would have to be
conducted every 3 years on each field receiving animal waste. The
samples shall be analyzed at an accredited laboratory for total
phosphorous. Finally, the phosphorous site rating for each field would
have to be recorded according to the selected assessment tool.
Land Application. This subsection details crop production and
animal waste application to crop production areas. Details of crop
production would have to include: Identification of all planned crops,
expected crop yields and the basis for yield estimates, crop planting
and harvesting dates, crop residue management practices, and nutrient
requirements of the crops to be grown. Calculations used to develop the
application rate, including nitrogen credits from legume crops,
available nutrients from past animal waste applications, and nutrient
credits from other fertilizer and/or biosolids applications would have
to be included.
Animal waste application rates cannot exceed nitrogen requirements
of the crops. However, animal waste application rates would be limited
to the agronomic requirements for phosphorous if the soil phosphorous
tests are rated ``high'', the soil phosphorous tests are equal to \3/
4\, but not greater than twice the soil phosphorous threshold value, or
the Phosphorous Index rating is ``high.'' Finally, animal waste could
not be applied to land if the soil phosphorous tests are rated ``very
high'', the soil phosphorous tests are greater than twice the soil
phosphorous threshold value, or the Phosphorous Index rating is ``very
high.'' In some cases, operators may choose to further restrict
application rates to account for other limiting factors such as
salinity or pH.
Animal wastes cannot be applied to wetlands or surface waters,
within 100 feet of a sinkhole, or within 100 feet of water sources such
as rivers, streams, lakes, ponds, and intakes to agricultural drainage
systems (e.g., aboveground tile drain intakes, agricultural drainage
wells, pipe outlet terraces). EPA requests comment on how serious would
be the limitations imposed by these requirements. Manure spreader and
irrigation equipment would have to be calibrated at a minimum once each
year, but preferably before each application period. Finally, the date
of animal waste application and calibration application equipment, and
rainfall amounts 24-hours before and after application would be
recorded.
Other Uses/Off-Site Transfer. The final required subsection for a
PNP details any alternative uses and off-site transport of animal
wastes. If used, a complete description of alternative uses of animal
waste would have to be included. If animal wastes are transported off-
site the following would have to be recorded: date (day, month, year),
quantity, and name and location of the recipient of the animal waste.
Voluntary Measures. Many voluntary best management practices can be
included within various subsections of a PNP. These voluntary best
management plans are referenced in EPA's guidance document for PNP
``Managing Manure Nutrients at Concentrated Animal Feeding
Operations.''
Annual Review and Revision. While a PNP is required to be renewed
every 5 years (coinciding with NPDES permitting), an annual review of
the PNP would have to occur and the PNP would be revised or amended as
necessary.
The most likely factor which would necessitate an amendment or
revision to a PNP is a change in the number of animals at the CAFO. A
substantial increase in animal numbers (for example an increase of
greater than 20%) would significantly increase the volume of manure and
total nitrogen and phosphorous produced on the CAFO. Because of this,
the CAFO will need to re-evaluate animal waste storage facilities to
ensure adequate capacity, and may need to re-examine the land
application sites and rates.
A second reason which would require an amendment or revision to a
PNP is a change in the cropping program which would significantly alter
land application of animal waste. Changes in crop rotation or crop
acreage could significantly alter land application rates for fields
receiving animal waste. Also the elimination or addition of fields
receiving animal waste application would require a change in the PNP.
Changes in animal waste collection, storage facilities, treatment,
or land application method would require an amendment or revision to a
PNP. For example, the addition of a solid-liquid separator would change
the nutrient content of the various animal waste fractions and the
method of land application thereby necessitating a revision in a PNP.
Changing from surface application to soil injection would alter ammonia
volatilization subsequently altering animal waste nutrient composition
requiring a revision of land application rates.
When CAFOs Must Have PNPs. EPA proposes to allow two groups of
CAFOs up to 90 days to obtain a PNP:
3. Existing CAFOs which are being covered by a NPDES permit for the
first time; or
4. Existing CAFOs that are already covered under an existing permit
which is reissued within 3 years from the date of promulgation of these
regulations.
EPA proposes that all other existing CAFOs must have a PNP at the
time permits are issued or renewed.
7. New Source Performance Standards
For purposes of applying the new source performance standards
(NSPS) being proposed today, a source would be a new source if it
commences construction after the effective date of the forthcoming
final rule. (EPA expects to take final action on this proposal in
December 2002, which is more than 120 days after the date of proposal--
see 40 CFR 122.2). Each source that meets this definition would be
required to achieve any newly promulgated NSPS upon commencing
discharge.
In addition, EPA is proposing additional criteria to define ``new
source'' that would apply specifically to CAFOs under Part 412. EPA
intends that permit writers will consult the specific ``new source''
criteria in Part 412 rather than the more general criteria set forth in
40 CFR 122.29(b)(1). The other provisions of 40 CFR 122.29 continue to
apply. EPA proposes to consider an operation as a new source if any of
the following three criteria apply.
The definition of new source being proposed for Part 412 states
three criteria that determine whether a source is a ``new source.''
First, a facility would be a new source if it is constructed at a
site at which no other source is located. These new sources have the
advantage of not
[[Page 3067]]
having to retrofit the operation to comply with BAT requirements, and
thus can design to comply with more stringent and protective
requirements.
The second criterion for defining a new source would be where new
construction at the facility ``replaces the housing, waste handling
system, production process, or production equipment that causes the
discharge or potential to discharge pollutants at an existing source.''
Confinement housing and barns are periodically replaced, allowing the
opportunity to install improved systems that provide increased
environmental protection. The modern confinement housing used at many
swine, dairy, veal, and poultry farms allows for waste handling and
storage in a fashion that generates little or no process water. Such
systems negate the need for traditional flush systems and storage
lagoons, reduce the risks of uncontrollable spills, and decrease the
costs of transporting manure.
Third, a source would be a new source if construction is begun
after the date this rule is promulgated and its production area and
processes are substantially independent of an existing source at the
same site. Facilities may construct additional production areas that
are located on one contiguous property, without sharing waste
management systems or commingling waste streams. Separate production
areas may also be constructed to help control biosecurity. New
production areas may also be constructed for entirely different animal
types, in which case the more stringent NSPS requirements for that
subcategory would apply to the separate and newly constructed
production area. In determining whether production and processes are
substantially independent, the permit authority is directed to consider
such factors as the extent to which the new production areas are
integrated with the existing production areas, and the extent to which
the new operation is engaging in the same general type of activity as
the existing source.
EPA also considered whether a certain level of facility expansion,
measured as an increase in animal production, should cause an operation
to be subject to new source performance standards. If so, upon facility
expansion, the CAFO would need to go beyond compliance with BAT
requirements to meet the more stringent standards represented by NSPS.
In today's proposal, that increment of additional control, for the
swine, poultry and veal subcategories, would amount to the need to
monitor ground water and install liners in lagoons and impoundments to
prevent discharges to ground water that has a direct hydrological
connection to surface water; unless the CAFO could demonstrate that no
such direct hydrological link existed. In the beef and dairy
subcategories, the NSPS proposed today are the same as the BAT
standards.
The Agency, however, decided against proposing to identify facility
expansion as a trigger for the application of NSPS. Many CAFOs oversize
or over-engineer their waste handling systems to accommodate future
increases in production. Thus, in many cases, the actual increases in
production may not present a new opportunity for the CAFO to install
the additional NSPS technologies--e.g. liners. To install liners, these
operations would need to retrofit their facilities the same as existing
sources would. EPA has explained above that such retrofitting would not
be economically achievable in these animal sectors. Similarly, the
costs associated with these requirements would represent a barrier to
the expansion. Therefore, it would not be appropriate to require these
operations, upon facility expansion, to meet the additional ground
water-related requirements that are a part of today's proposed NSPS.
EPA considered the same seven options for new source performance
standards (NSPS) as it considered for BAT. EPA also considered an
additional option for new dairies, which if selected, would prohibit
dairies from discharging any manure or process wastewater from animal
confinement and manure storage areas (i.e., eliminating the allowance
for discharging overflows associated with a storm event). New sources
have the advantage of not having to retrofit the operation to comply
with the requirements and thus can design the operation to comply with
more stringent requirements. In selecting new source performance
standards, EPA evaluates whether the requirements under consideration
would impose a barrier to entry to new operations.
EPA is proposing to select Option 3 as the basis for NSPS for the
beef and dairy subcategories. Option 3 includes all the requirements
proposed for existing sources including complying with zero discharge
from the production area except in the event of a 25-year, 24-hour
storm and the requirement to develop a PNP which establishes the rate
at which manure and wastewater can be applied to crop or pasture land
owned or controlled by the CAFO. The application of manure and
wastewater would be restricted to a phosphorus based rate where
necessary depending on the specific soil conditions at the CAFO.
Additionally, other best management practice requirements would apply,
including the prohibition of manure and wastewater application within
100 feet of surface water. The proposed new source standard for the
beef and dairy subcategories includes a requirement for assessing
whether the ground water beneath the production area has a direct
hydrological connection to surface water. If a direct hydrological
connection exists, the operation must conduct additional monitoring of
ground water up gradient and down gradient from the production area,
and implement any necessary controls based on the monitoring results to
ensure that zero discharge to surface water via the ground water route
is achieved for manure stockpiles and liquid impoundments or lagoons.
For the purpose of estimating compliance costs, EPA has assumed that
operations located in areas with a direct hydrological connection will
install synthetic material or compacted clay liners beneath any liquid
manure storage and construct impervious pads for any dry manure storage
areas. The operator would be required to collect and analyze ground
water samples twice per year for total dissolved solids, chlorides,
nitrate, ammonia, total coliforms and fecal coliform. EPA believes that
Option 3 is economically achievable for existing sources. Since new
sources are able to install impermeable liners at the time the lagoon
or impoundment is being constructed, rather than retrofitting
impoundments at existing source, costs associated with this requirement
should be less for new sources in comparison to existing sources. EPA
has concluded that Option 3 requirements will not pose a barrier to
entry for new sources.
EPA is proposing to establish NSPS for all swine and poultry
operations based on Option 5 and Option 3 combined. In addition the BAT
requirements described in Section VIII.C.6, the proposed new source
standards would require no discharge via any ground water that has a
direct hydrological link to surface water. As described above, Option 3
requires all CAFOs to monitor the ground water and impose appropriate
controls to ensure compliance with the zero discharge standard, unless
the CAFO has demonstrated that there is no direct hydrological link
between the ground water and any surface waters. The proposed new
source standard also restricts land application of manure and
[[Page 3068]]
wastewater to a phosphorus based rate where necessary depending on the
specific soil conditions at the CAFO. Additionally, other best
management practice requirements would apply, including that
application of manure and wastewater would be prohibited within 100
feet of surface water.
EPA encourages new swine and poultry facilities to be constructed
to use dry manure handling. Dry manure handling is currently the
standard practice at broiler and turkey operations. As described
previously, some existing laying hen operations and most hog operations
use liquid manure handling systems. The proposed new source performance
standard would not require the use of dry manure handling technologies,
but EPA believes this is the most efficient technology to comply with
its requirements.
EPA has analyzed costs of installing dry manure handling at new
laying hen and swine operations. Both sectors have operations which
demonstrate dry manure handling can be used as an effective manure
management system. The dry manure handling systems considered for both
sectors require that the housing for the animals be constructed in a
certain fashion, thus making this practice less practical for existing
sources. Both sectors have developed a high rise housing system, which
houses the animals on the second floor of the building allowing the
manure to drop to the first floor or pit. In the laying hen sector this
is currently a common practice and with aggressive ventilation, the
manure can be maintained as a dry product. Hog manure has a lower
solids content, thus the manure must be mixed with a bedding material
(e.g., wood chips, rice or peanut hulls and other types of bedding)
which will absorb the liquid. To further aid in drying the hog manure,
air is forced up through pipes installed in the concrete floor of the
pit. With some management on the part of the CAFO operator, involving
mixing and turning the hog manure in the pit periodically, the manure
can be composted while it is being stored. The advantages of the high
rise system for hogs and laying hens include a more transportable
manure, which, in the case of the hog high rise system, has also
achieved a fairly thorough decomposition. The air quality inside the
high rise house is greatly improved, and the potential for leaching
pollutants into the groundwater is greatly reduced. The design standard
of these high rise houses include concrete floors and also assume that
the manure would be retained in the building until it will be land
applied, thus there is no opportunity for storm water to reach the
manure storage and virtually no opportunity for pollutants to leach to
groundwater beneath the confinement house. EPA believes that the cost
savings associated with ease of manure transportation, as well as
improved animal health and performance, with the dry manure handling
system for hogs will off-set the increased cost of operation and
maintenance associated with the high rise hog system. Thus, EPA
concludes the high-rise house does not pose a barrier to entry and is
the basis for NSPS in both the laying hen and hog sectors. Although the
high rise house is the basis of the new source standards for the swine
and laying hen sectors, operations are not prevented from constructing
a liquid manure handling system. If new sources in these sectors choose
to construct a liquid manure handling system, they would be required to
line the lagoons if the operation is located in an area that has a
direct hydrologic connection, but the cost associated with lining a
lagoon at the time it is being constructed is much less than the cost
to retrofit lagoon liners.
EPA proposes to establish new source requirements for the veal
subcategory on the basis of Option 5 which requires zero discharge with
no overflow from the production area and Option 3 which requires zero
discharge of pollutants to groundwater which has a direct hydrological
connection to surface water, with the ground water monitoring or
hydrological assessment requirements described above. EPA believes that
a zero discharge standard without any overflow will promote the use of
covered lagoons, anaerobic digesters or other types of manure treatment
systems. Additionally, this will minimize the use of open air manure
storage systems, thus reducing emission of pollutants from CAFOs.
New veal CAFOs would not be expected to modify existing housing
conditions since EPA is not aware of any existing veal operations that
use dry manure handling systems. New veal CAFOs would be expected to
also use covered lagoons, or anaerobic digesters to comply with the
zero discharge standard. New veal CAFOs would be required to line their
liquid manure treatment or storage structures with either synthetic
material or compacted clay to prevent the discharge of pollutants to
ground water which has a direct hydrological connection to surface
water. In addition, the CAFO would have to monitor the groundwater
beneath the production area to ensure compliance with the zero
discharge requirement. The CAFO would not need to install liners or
monitor ground water if it demonstrates that there is no direct
hydrologic link between the ground water and any surface waters.
In addition to the seven options considered for both existing and
new sources, EPA also investigated a new source option for dairies that
would prohibit all discharges of manure and process wastewater to
surface waters, eliminating the current allowance for the discharge of
the overflow of runoff from the production area. To comply with a zero
discharge requirement, dairies would need to transform the operation so
they could have full control over the amount of manure and wastewater,
including any runoff, entering impoundments. Many dairies have drylot
areas where calves, heifers, and bulls are confined, as well as similar
drylot areas where the mature cows are allowed access. EPA estimated
compliance costs for a zero discharge requirements assuming that the
following changes would occur at new dairies:
(1) Freestall barns for mature cows would be constructed with six
months underpit manure storage, rather than typical flush systems with
lagoon storage;
(2) Freestall barns with six months underpit manure storage would
be constructed to house heifers;
(3) Calf barns with a scrape system would be constructed with a
scrape system and six months of adjacent manure storage; and
(4) New dairies would include covered walkways, exercise areas,
parlor holding, and handling areas.
Drylot areas are continually exposed to precipitation. The amount
of contaminated runoff from such areas that must be captured is
directly related to the size of the exposed area and the amount of
precipitation. Under the current regulations, dairies use the 25-year,
24-hour rainfall event (in addition to other considerations) when
determining the necessary storage capacity for a facility. Imposing a
zero discharge requirement that prevents any discharge from
impoundments would force dairies to reconfigure in a way that provides
complete control over all sources of wastewater. EPA considered the
structural changes in dairy design described here to create a facility
that eliminates the potential for contaminated runoff.
While EPA believes that confining all mature and immature dairy
cattle is technically feasible, the costs of zero discharge relative to
the costs for Option 3 are very high. Capital costs to comply with zero
discharge increase by two orders of magnitude. EPA estimates
[[Page 3069]]
annual operating and maintenance costs would rise between one to two
orders of magnitude above the costs for Option 3. These costs may
create a barrier to entry for new sources. In addition, EPA believes
selecting this option could have the unintended consequence of
encouraging dairies to shift calves and heifers offsite to standalone
heifer raising operations (either on land owned by the dairy or at
contract operations) to avoid building calf and heifer barns. If these
offsite calf/heifer operations are of a size that they avoid being
defined as a CAFO, the manure from the immature animals would not be
subject to the effluent guidelines.
EPA is not basing requirements for new dairies on the zero
discharge option for the reasons discussed above. EPA solicits comment
on the approach used to estimate the costs for new dairies to comply
with a zero discharge requirement. Comments are particularly solicited
on aspects such as: converting from flush systems to underpit manure
storage; types of housing for calves and heifers; and whether the
potential for uncontrollable amounts of precipitation runoff have been
sufficiently eliminated (including from silage). EPA also solicits
comment on a regulatory scenario that would establish a zero discharge
requirement for manure and process wastewater from barns (housing
either mature or immature dairy cattle) and the milking parlor, but
would maintain the current allowance for overflow of runoff from drylot
areas.
As an alternative to underpit manure storage, dairies could achieve
zero discharge for parlor wastes and barn flush water by constructing
systems such as anaerobic digesters and covered lagoons. These covered
systems, if properly operated, can facilitate treatment of the manure
and offer opportunities to reduce air emissions. The resulting liquid
and solid wastes would be more stable than untreated manure. EPA
solicits comment on the usefulness of applying stabilization or
treatment standards to liquid and slurry manures prior to land
application. Commenters encouraging the use of such standards should
recommend appropriate measurement parameters such as volatile solids,
BOD, COD, and indicator organism reduction(s) to establish stability or
treatment levels.
EPA has not identified any basis for rejecting the zero discharge
option for dairies solely due to animal health reasons. EPA solicits
comment on the technical feasibility of confining mature and/or
immature dairy cattle in barns at all times.
Ten-year protection period. The NSPS that are currently codified in
part 412 will continue to have force and effect for a limited universe
of CAFOs. For this reason, EPA is proposing to retain the NSPS
promulgated in 1974 for part 412. Specifically, following promulgation
of the final rule that revises part 412, the 1974 NSPS would continue
to apply for a limited period of time to certain new sources and new
dischargers. See CWA section 306(d) and 40 CFR 122.29(d). Thus, if EPA
promulgates revised NSPS for part 412 in December 2002, and those
regulations take effect in January 2003, qualified new sources and new
dischargers that commenced discharge after January 1993 but before
January 2003 would be subject to the currently codified NSPS for ten
years from the date they commenced discharge or until the end of the
period of depreciation or amortization of their facility, whichever
comes first. See CWA section 306(d) and 40 CFR 122.29(d). After that
ten year period expires, any new or revised BAT limitations would apply
with respect to toxic and nonconventional pollutants. Limitations on
conventional pollutants would be based on the1974 NSPS unless EPA
promulgates revisions to BPT/BCT for conventional pollutants that are
more stringent than the 1974 NSPS.
Rather than reproduce the 1974 NSPS in the proposed rule, EPA
proposes to refer permitting authorities to the NSPS codified in the
2000 edition of the Code of Federal Regulations for use during the
applicable ten-year period.
8. Pretreatment Standards for New or Existing Sources (PSES AND PSNS)
EPA is not proposing to establish Pretreatment Standards for either
new or existing sources. Further, EPA is withdrawing the existing
provisions entitled ``Pretreatment standards for existing sources'' at
Secs. 412.14, 412.16, 412.24, 412.26. Those existing provisions
establish no limitations. The vast majority of CAFOs are located in
rural areas that do not have access to municipal treatment systems. EPA
is not aware of any existing CAFOs that discharge wastewater to POTWs
at present and does not expect new sources to be constructed in areas
where POTW access will be available. For those reasons, EPA is not
establishing national pretreatment standards. However, EPA also wants
to make it clear that if a CAFO discharged wastewater to a POTW, local
pretreatment limitations could be established by the Control Authority.
These local limits are similar to BPJ requirements in an NPDES permit.
9. Effluent Guidelines Controls for Pathogens
The third most common reason for waterbodies being listed on State
Sec. 303(d) lists as an impaired watershed is pathogens. Degradation of
surface waters by excessive levels of pathogens has been attributed to
several sources, including natural wildlife, faulty septic systems, and
animal agriculture. As described in Section 5, stream water quality may
be impacted by animal feeding operations due to feedlot surface runoff,
spills from liquid impoundments, tile drain effluent, leaching and
runoff from land receiving manure, and seepage from waste storage.
Degradation of aquatic and riparian habitat also occurs when animal
grazing operations are poorly managed.
In today's notice, EPA is not setting specific requirements for the
control of pathogens. The proposed BAT is expected to reduce pathogens
to surface waters through the implementation of the zero discharge
requirements at the production area, and through the implementation of
the PNP at the land application area. Even without explicit
requirements or limits for pathogen controls, EPA expects considerable
reduction in the discharge of pathogens for reasons described below.
Runoff simulations and loadings analysis predict a 50% reduction in
fecal coliforms and a 60% reduction in fecal streptococci under the
regulatory scenario proposed today. Following this proposal, EPA
intends to further analyze technologies for the treatment or reduction
of pathogens in manure, and solicits comment on other approaches to
control pathogens.
One mechanism for pathogen discharge to surface waters is
catastrophic spills, whether caused by intentional discharges or
through overflow following major storms. EPA expects the requirements
for no discharge from the production area, as well as routine
inspection and mandatory management practices for the control of liquid
impoundment levels, will reduce catastrophic spills. For the swine and
poultry sectors EPA believes the elimination of the storm event at
which an overflow is allowed will also reduce discharge of pathogens.
At the production area, operators would be required to handle animal
mortalities in a manner so as to prevent contamination of surface
water. The proper use of manure as a fertilizer, as specified in the
proposed regulations, may result in increased storage capacity and
longer retention times of both liquid and solid manure storage,
allowing
[[Page 3070]]
increased opportunity for natural die-off of pathogens. For example,
runoff from fields receiving poultry litter that had been stored prior
to application showed no significant difference in pathogen content in
runoff from control fields (GEIS, 1999), supporting the conclusion that
pathogen reductions will occur from increased storage times.
Application rate has been identified as the single most important
manure management practice affecting pollution of surface waters from
fields receiving manure. Other practices affecting pathogen content in
the runoff include amount of application, incorporation methods,
tillage, saturation of the receiving field, and elapsed time following
application before a rainfall. In one case study, swine lagoon effluent
applied to tile drained fields at 1.1 inches showed no difference in
runoff quality than the control fields, but application at three times
the rate showed high levels of fecal coliform in the surface water.
Fecal bacteria in runoff from land receiving fresh manure may often be
a significant proportion of the fecal contamination measured in the
surface waters. Vegetated filter strips are useful in removing
pollutants from runoff on manured fields, particularly nutrients and
sediment, but have not been identified as generally effective in
reducing bacterial concentrations in the runoff. Surface applications
of manure are more likely to result in fecal coliform transport when
the soil is saturated, particularly in fine sandy loam soils.
EPA believes nutrient management practices and rates established in
the PNP would limit the quantity of nutrients that may be applied to
fields and will reduce the occurrence of manure application to
saturated soils, or when a heavy storm event is predicted. Nutrient
loss to surface water under these conditions would result in reduced
crop yields and would be reflected in revisions made to the PNP in
subsequent years translating to a lower manure application rate.
EPA has collected data on technologies useful in treating manure
and wastes for pathogens. Anaerobic digesters and even simple manure
storage for an extended period of time promote pathogen reductions
through selective growth conditions and natural die-off over time. The
addition of heat, such as is used in thermophilic digesters, further
reduces pathogens. Proper composting processes also involve high
temperatures--achieving temperatures approaching 140 degrees F in the
pile. Heat treatment over several days is likely to kill protozoans
such as Giardia and Cryptosporidium. The addition of lime to achieve
high alkaline conditions, e.g., achieving a pH 12, also is
effective at killing many pathogens by disrupting the cell membrane or
disrupting virus viability.
EPA will continue to analyze the performance and applicability of
treatments to reduce pathogens in CAFO waste, and will analyze the
costs of these processes. The processes described above and others used
to significantly reduce pathogens in biosolids or sewage sludge such as
heat treatment, drying, thermophilic aerobic digestion, pasteurization,
disinfection, and extended storage will be analyzed for their
applicability to animal manures. EPA will give consideration to
establishing the same performance standards as required for Class A
sludge in Part 503. If supported by appropriate data, the final rule
could establish these or other appropriate standards as performance
standards that the wastes would be required to meet prior to land
application. The CAFO would need to demonstrate achievement of these
standards prior to land application because of the impracticability of
measuring the pollutant loadings in any eventual runoff from the land
application areas to the waters. EPA solicits comment on this possible
approach and specifically requests data relating to pathogen treatment
and reductions that are demonstrated to be effective on CAFO waste. EPA
also solicits data on management practices that can be applied to the
land application of manure, which may reduce pathogens in runoff.
10. Antibiotics
Related to concerns over pathogens in animal manures are concerns
over antibiotics and other pharmaceuticals that may be present in the
manure. As discussed in Section V, an estimated 60-80% of all livestock
receive antibiotics. Some antibiotics are metabolized, and some are
excreted with the manure. In cases where antimicrobials are
administered to animals through the feed, spilt feed and wastelage may
contribute to antibiotic content of the waste storage. The presence of
antibiotics in manure and the environment has been shown to result in
antibiotic resistant pathogens. EPA solicits comments on the direct
effects of antibiotic residues and antimicrobial resistance,
specifically on how manure management may contribute to the problem of
antibiotics reaching the environment and contributing to pathogen
resistance. EPA also solicits data and information on effective
treatment or practices that may be implemented by CAFOs to reduce these
releases.
IX. Implementation of Revised Regulations
A. How Do the Proposed Changes Affect State CAFO Programs?
EPA is proposing a number of changes to the effluent guidelines and
the NPDES permit regulations for CAFOs in today's proposed rule. Under
40 CFR 123.25, authorized NPDES State programs must administer their
permit programs in conformance with NPDES requirements, including the
requirements that address concentrated animal feeding operations
(Sec. 122.23) and the incorporation of technology-based effluent
limitation guidelines and standards in permits (Sec. 122.44). Thus,
today's proposed rule would require the 43 States [note that State is
defined in Sec. 122.2] with authorized NPDES permit programs for CAFOs
to revise their programs as necessary to be consistent with the revised
federal requirements. Current NPDES regulations note that authorized
NPDES State permit programs are not required to be identical to the
federal requirements; however, they must be at least as stringent as
the federal program. States are not precluded from imposing
requirements that are more stringent than those required under federal
regulations.
Any State with an existing approved NPDES permitting program under
section 402 must be revised to be consistent with changes to federal
requirements within one year of the date of promulgation of final
changes to the federal CAFO regulations [40 CFR 123.62(e)]. In cases
where a State must amend or enact a statute to conform with the revised
CAFO requirements, such revisions must take place within two years of
final changes to the federal CAFO regulations. States that do not have
an existing approved NPDES permitting program but who seek NPDES
authorization after these CAFO regulatory provisions are promulgated
must have authorities that meet or exceed the revised federal CAFO
regulations at the time authorization is requested.
In States not authorized to administer the NPDES program, EPA will
implement the revised requirements. Such States may still participate
in water quality protection through participation in the CWA section
401 certification process (for any permits) as well as through other
means (e.g., development of water quality standards, development of
TMDLs, and coordination with EPA).
[[Page 3071]]
EPA is aware that the majority of States authorized to implement
the NPDES program supplement the NPDES CAFO requirements with
additional State requirements, and some States currently regulate or
manage CAFOs predominantly under State non-NPDES programs. It has been
suggested that EPA provide a mechanism through which State non-NPDES
CAFO programs can be recognized alternatives that would be authorized
under the CWA.
No permit issued by a non-NPDES program will satisfy the NPDES
permit requirement. Facilities required to be covered by a NPDES permit
must obtain a permit from an agency authorized to issue a NPDES permit.
However, EPA believes that the current NPDES program provides a
reasonable degree of flexibility consistent with CWA requirements, and
that the proposed CAFO regulation provides opportunities to incorporate
State programs in several ways.
It is possible for non-NPDES State programs that currently regulate
AFOs to gain EPA's approval as NPDES-authorized programs. Such a change
would require a formal modification of the State's approved NPDES
program, and the State would have to demonstrate that its program meets
all of the minimum criteria specified in 40 CFR Part 123, Subpart B for
substantive and procedural regulations. Among other things, these
criteria include the restriction that permit terms may not exceed 5
years, and include provisions on public participation in permit
development and enforcement, and EPA enforcement authority.
In addition, today's proposal provides specific flexibility on
particular issues. First, with regard to the off-site transfer of
manure, EPA is requiring under one co-proposed option that the CAFO
operator obtain a certification from recipients that, if they intend to
land apply the manure, it will be done according to appropriate
agricultural practices. EPA is proposing to waive this requirement in a
State that is implementing an effective program for addressing excess
manure generated by CAFOs. Second, EPA is proposing to require that
processors be permitted, or co-permitted, along with their contract
producers. EPA is requesting comment on an option that would waive this
requirement in certain instances in States with effective programs for
managing excess manure. EPA is also soliciting comment on one
particular type of program, an Environmental Management System
developed by the processor, as sufficient to waive co-permitting
requirements. EPA is interested in comments on other specific
requirements of today's proposal that might be satisfied in whole or in
part by State program requirements. This could include ways to ensure
that states with unique programs that meet or exceed the provisions of
the revised regulations and the CWA requirements could utilize their
own programs that include similar objectives such as enhanced water
quality protection, public participation and accountability.
A third possible means of providing flexibility for States would be
available if the three-tier regulatory structure is adopted in the
final regulation. In the three-tier structure, all facilities over
1,000 AU would be considered CAFOs by definition, and those between 300
AU and 1,000 AU would be CAFOs only if they meet one of several
conditions, described in detail in Section VII.B.3, or if designated by
the permit authority as a significant contributor of pollution to
waters of the U.S. Those with fewer that 300 AU would become CAFOs only
if designated by the permit authority. A State with an effective non-
NPDES program could succeed in helping many operations avoid permits by
ensuring they do not meet any of the conditions that would define them
as CAFOs.
EPA is also soliciting comment on whether or not to adopt both the
two-tier and the three-tier structures, and to provide a mechanism to
allow States to select which of the two alternative proposed structures
to adopt in their State NPDES program. Under this option, a State could
adopt the structure that best fits with the administrative structure of
their program, and that best serves the character of the industries
located in their State and the associated environmental problems. This
option is viable only if the Agency is able to determine that the two
structures provide substantially similar environmental benefits by
regulating equivalent numbers of facilities and amounts of manure.
Otherwise, States would be in a position to choose a less stringent
regulation, contrary to the requirements of the Clean Water Act. A
discussion of this option can be found in Section VII.B.4.
The requirements for State NPDES program authorization are
specified under Sec. 402(b) of the CWA and within the broad NPDES
regulations (40 CFR Part 123). These provisions set out specific
requirements for State authorization applicable to the entire NPDES
program and the Agency does not believe that broad changes to these
requirements are appropriate in this proposed rulemaking.
B. How Would EPA's Proposal to Designate CAFOs Affect NPDES Authorized
States?
Today's proposal would provide explicit authority, even in States
with approved NPDES programs, for the EPA Regional Administrator to
designate an AFO as a CAFO if it meets the designation criteria in the
regulations. EPA's authority to designate AFOs as CAFOs would be
subject to the same criteria and limitations to which State designation
authority is subject. However, EPA does not propose to assume authority
or jurisdiction to issue permits to the CAFOs that the Agency
designates in approved NPDES States. That authority would remain with
the approved State. EPA requests comment on this prosed new designation
authority.
C. How and When Will the Revised Regulations be Implemented?
EPA anticipates that this these proposed regulations will be
promulgated as final regulations in December, 2002, and published in
the Federal Register shortly thereafter (approximately January, 2003).
As mentioned, authorized States programs will need up to two years
after that date to revise their programs to reflect the new
regulations. Following a State's revision of its program and approval
of the revisions by EPA, we expect many States to want additional time
to develop new or revised CAFO general permits. EPA believes it is
reasonable to allow States one additional year to develop these new or
revised general permits. To summarize, some States will need until
approximately January 2006--i.e., three years after the final rule is
published--before they can make CAFO general permits available that
reflect the new regulations in the State.
At the same time, once these regulations are finalized, we estimate
that there will be a large number of operations that will need to apply
for a permit, described in Section VII.B.4. It is important to take
into account that some States will not be making CAFO general permits
available to these facilities until three years after the final rule.
If EPA were to make the new Part 122 regulations effective shortly
after we issue the final rule (January 2003), there would be large
numbers of facilities that would be newly defined as CAFOs at that
time. They would be required to apply for a permit right away, but
States would not be able to issue general permits at that time or a
large number of individual permits all at once. This would leave the
facilities potentially in
[[Page 3072]]
the detrimental position of being unpermitted dischargers.
To avoid this situation, EPA proposes that the revisions to the
CAFO definition in part 122 (including, for example, changes to the
threshold number of animals to qualify as a CAFO and other changes such
as the elimination of the 25-year, 24-hour storm exemption) would not
take effect until three years after publication of the final rules. See
proposed section 122.23(f). We expect, therefore, that these changes
would not take effect until approximately January, 2006. Operations
that are brought within the regulatory definition of a CAFO for the
first time under these regulatory revisions would not be defined as
CAFOs under final and effective regulations until that date.
EPA also considered an alternate approach in which the effective
date for the part 122 revisions would be different in each State,
depending on when the State actually adopted and got approval for the
changes and issued general permits. An advantage of this approach would
be that the new regulations would potentially be effective at an
earlier date, i.e., before January 2006, in some States. EPA is not
proposing this approach, however. We decided that it would be
preferable to provide one uniform effective date for these particular
revisions, which would provide necessary clarity and consistency to the
national NPDES program for CAFOs. EPA does seek comment, however, on
which approach would be preferable to adopt in the final regulations.
States, however, are free to implement more stringent requirements, and
may choose to implement the revised CAFO definition at an earlier date.
It should be noted that EPA is proposing this delayed effective
date only for the proposed regulatory changes that affect which
operations would be defined as CAFOs. There is no need to delay the
effective date of any of the other revisions EPA is proposing to the
CAFO regulations at 40 CFR part 122, such as those that specify land
application requirements and other requirements. These other revisions
to the part 122 regulations would become effective 60 days after
publication of the final regulations (January 2003). For any operation
that is a CAFO according to the current definition and that is being
permitted after that date, or having its permit renewed, the permit
would be developed under these new part 122 provisions.
EPA is proposing that the revised effluent guidelines, once
promulgated as final regulations, would be effective 60 days after
promulgation. The 1989 statutory deadline for meeting BAT has long
passed, and we do not believe there is any reason why permit writers
could not begin incorporating the revised effluent guidelines into
permits beginning 60 days after promulgation.
If a CAFO submits a timely application for a permit renewal, but
has not received a decision on that application prior to the expiration
date of the original permit, then the original permit would be
administratively ``continued'' until there is a decision from the
permit authority on the new application (in EPA-administered States and
States with comparable administrative procedure laws). If that
continuance lasts beyond the date that is the effective date of the
revised NPDES regulations and effluent guidelines, then the CAFO's new
permit would reflect both sets of new regulations.
EPA also proposes to adopt specific timing requirements in the
permit with respect to the CAFO's development of PNPs. As described in
Section VIII, EPA proposes to establish BAT as encompassing the
following timing requirements: (1) for all new permittees and for
applicants who hold existing individual permits, compliance with the
PNP would be an immediate requirement of the permit. Therefore, the
draft PNP must be submitted to the permit authority along with the
permit application or NOI; the final PNP must be adopted by the
permittee within 90 days of being permitted; (2) for applicants who are
authorized under an existing general permit, the permittee must develop
a Permit Nutrient Plan within 90 days of submittal of the NOI; and (3)
the PNP for all CAFOs would need to include milestones for
implementation. This time is necessary because, while operators can
begin preparing necessary data, it would be difficult to develop a PNP
before the permit authority issues a final permit that specifies the
terms and conditions of the permit. (Operators of existing CAFOs with
individual NPDES permits, who must submit their draft PNP with the
permit application, are expected to reapply for coverage under the
revised regulation early enough to provide time to develop its PNP
without causing a lapse in coverage.) For facilities that have been
designated as CAFOs, the permit writer will develop the implementation
schedule in order to provide reasonable time to prepare the PNP.
Prior to the effective date of the revised regulations, State and
EPA permit authorities will be issuing permits to facilities that
currently meet the definition of a CAFO under the existing regulations
or that have been designated as CAFOs. Consistent with the AFO
Strategy, discussed in section III.B., during 2000 to 2005 States with
authorized NPDES programs are to focus on issuing permits to the
largest CAFOs, those with 1,000 AU or greater. In States where EPA is
the permit authority, EPA will issue permits to operations defined as
CAFOs that are over 300 AU. The permits are valid for a maximum of five
years, at which time these facilities would obtain new permits under
the revised regulation.
One of the significant changes to the NPDES and ELG regulation for
CAFOs will be the requirement to develop and implement Permit Nutrient
Plans that are developed, or reviewed and approved, by certified
planners. Concern has been raised about the availability of the
necessary expertise to develop and certify the plans. EPA believes that
there will be sufficient lead time before this regulation is
implemented to expect the market to have developed the CNMP and PNP
planning expertise and infrastructure because, during this period,
CNMPs will be developed under both the USDA voluntary program and EPA's
Round I permitting.
For facilities subject to the requirements of the revised
regulation, EPA anticipates that during the period between the time
this regulation is promulgated and the time it is effective, operators
will be able to anticipate the status of their facilities, and
therefore can begin gathering data that will be needed for the Permit
Nutrient Plan and other requirements, such as soil type, manure
sampling, cropping information, and other data needed to calculate the
allowable manure application rate. (Note: States are supposed to have
adopted their NRCS 590 standard by May 2001.)
EPA also proposes that CAFOs that are new sources may not receive
permit coverage until the PNP is developed. In this case, a complete
application must include the PNP. The owner or operator of a new
facility is expected to design and construct the new facility in a
manner that anticipates the ELG and NPDES requirements for manure
management, rather than incurring the costs of retrofitting an already
constructed facility.
EPA recognizes that some practices such as liners and groundwater
wells for beef and dairy operations may take time to implement. The PNP
will include a schedule for implementing the provisions of the PNP,
including milestones with dates.
[[Page 3073]]
Facilities Constructed After the Proposed Regulation is Published.
EPA is soliciting comment on whether the revised regulations should
apply 60 days after publication of the final rule to facilities that
commence operation after that date, even if they would not be defined
as a CAFO under the existing rules. Although EPA is proposing to delay
for three years the effective date of the proposed regulations for
existing facilities that are not currently defined as CAFOs, it is
considering whether to require all facilities defined as CAFOs under
the final rule that commence operation after the final rule is
published to obtain an NPDES permit and comply with the other
requirements of the final rule. For example, a dry poultry operation or
an animal feeding operation of 501 cattle that is constructed during
the three year period after publication of the final rule might be
required to comply immediately with the revised regulations rather than
remaining outside the scope of the NPDES program until three years
after publication of the final rule.
Requiring newly constructed facilities to obtain permits does not
pose the same problem as requiring all existing AFOs which are not
defined as CAFOs under the current rule to obtain permits immediately
after promulgation of the final rule. Once a new definition of a CAFO
becomes effective, a large number of existing facilities would need a
permit on the same date. EPA expects that most existing facilities will
seek coverage under a general permit. However, EPA and authorized
States will need some time after the final rule is promulgated to
develop those general permits. An existing facility would face the
dilemma of either ceasing operations or discharging without a permit if
it was required to obtain a permit but none was available. By contrast,
new facilities would commence operation over a period of time and
present less of a burden on permit authorities. If a general permit was
not available, issuing individual permits to the smaller number of
newly constructed facilities would present less of a burden. If all
else fails, a newly constructed facility could not commence operation
until it had a permit. This approach would be consistent with EPA's
general approach for regulation of new sources and new dischargers, who
are required to obtain an NPDES permit (and comply with any applicable
NSPS) prior to commencing operation. See 40 CFR 122.29, 124.60(a).
Finally, unlike an existing facility, a newly constructed facility is
in a better position to plan its facility to comply with the revised
regulations.
If EPA did not delay the effective date for facilities that are
constructed after the final rule is published, the rule would address
additional sources sooner. On the other hand it would further
complicate the regulatory structure because it would temporarily create
another category of facilities. EPA solicits comments on whether all
provisions of the rule should be effective 60 days after the final rule
is published for facilities that are constructed after that date.
D. How Many CAFOs are Likely to be Permitted in Each State and EPA
Region?
Tables 9-1 and 9-2 delineate the number of facilities, in each
State and EPA Region, that are expected to be affected by either of
today's proposed two-tier and three-tier structures, respectively. In
both proposed structures, all CAFOs with more than 1,000 AU would be
required to apply for a NPDES permit. The differences lie primarily in
how the middle-sized operations are affected.
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As described in today's preamble, the three-tier structure would
affect more facilities because all AFOs with 300 AU or more would be
required to do something. However, not all would be required to apply
for a permit, and, depending on the vigor with which States and AFOs
seek to avoid the conditions defining these facilities as CAFOs, the
actual number of permittees could be smaller. EPA projects that a
minimum of 4,000 middle-sized facilities and a maximum of 19,000 would
apply for a permit under the three-tier structure. By contrast, the
proposed two-tier structure would require all 13,000 facilities between
500 AU and 1,000 AU to apply for a permit.
Further, the number of small facilities likely to be designated
differs between the two proposed structures. Under the three-tier
structure, EPA expects very few AFOs to be designated, potentially 10
per year nationally. Under the two-tier structure, however, this number
is likely to rise to 50 per year, given that AFOs from 300 AU to 499 AU
have the potential to generate significant quantities of manure that,
if not properly managed, may lead the facility to be a significant
contributor of pollution to the waters.
E. Funding Issues
While most CAFO owners and operators are interested in taking
appropriate measures to protect and preserve the environment, there are
legitimate concerns over the costs of doing so. While EPA's cost
analysis indicates that this rule is affordable, some businesses in
some locales may experience economic stress. (See Section X). Further,
concern has been expressed as to whether facilities below 1,000 AU that
become CAFOs due to the changes in this proposed rulemaking may
potentially cause operations to lose cost-share money available under
EPA's Section 319 Nonpoint Source Program and USDA's Environmental
Quality Incentive Program (EQIP). Once a facility is considered a point
source under NPDES, the operation is not eligible for cost sharing
under the Section 319 nonpoint source program. However, the USDA EQIP
program is in fact available to most facilities, and being a permitted
CAFO is not a reason for exclusion from the EQIP program. EQIP funds
may not be used to pay for construction of storage facilities at
operations with greater than 1,000 USDA animal units; however, EQIP is
available to these facilities for technical assistance and financial
assistance for other practices. One USDA animal unit equals 1,000
pounds of live weight of any given livestock species or any combination
of livestock species. (The approximate number of animal equivalents
would be: 1,000 head of beef; 741 dairy cows; 5,000 swine, 250,000
layers; and 500,000 broilers).
To this end, EPA anticipates that State and Federal Agencies will
facilitate compliance with this rule by providing technical assistance
and funding for smaller CAFOs, as available.
F. What Provisions are Made for Upset and Bypass?
A recurring issue of concern has been whether industry guidelines
should include provisions authorizing noncompliance with effluent
limitations during periods of ``upsets'' or ``bypasses''. An upset,
sometimes called an ``excursion,'' is an unintentional noncompliance
occurring for reasons beyond the reasonable control of the permittee.
It has been argued that an upset provision is necessary in EPA's
effluent limitations because such upsets will inevitably occur even in
properly operated control equipment. Because technology based
limitations require only what the technology can achieve, it is claimed
that liability for such situations is improper. When confronted with
this issue, courts have disagreed on whether an explicit upset
exemption is necessary, or whether upset incidents may be handled
through EPA's exercise of enforcement discretion. Compare Marathon Oil
Co. v. EPA, 564 F.2d 1253 (9th Cir.1977), with Weyerhaeuser v. Costle,
594 F.2d 1223 (8th Cir. 1979). See also Sierra Club v. Union Oil Co.,
813 F.2d 1480 (9th Cir. 1987), American Petroleum Institute v. EPA, 540
F.2d 1023 (10th Cir. 1976), CPC International, Inc. v. Train, 540 F.2d
1320 (8th Cir. 1976), and FMC Corp. v. Train, 539 F.2d 973 (4th Cir.
1976).
A bypass, on the other hand, is an act of intentional noncompliance
during which waste treatment facilities are circumvented because of an
emergency situation. EPA has in the past included bypass provisions in
NPDES permits. EPA has determined that both upset and bypass provisions
should be included in NPDES permits and has promulgated permit
regulations that include upset and bypass permit provisions. See 40 CFR
122.41. The upset provision establishes an upset as an affirmative
defense to prosecution for violation of, among other requirements,
technology-based effluent limitations. The bypass provision authorizes
bypassing to prevent loss of life, personal injury, or severe property
damage. Consequently, although permittees in the offshore oil and gas
industry will be entitled to upset and bypass provisions in NPDES
permits, this regulation does not address these issues.
G. How Would an Applicant Apply for Variances and Modifications to
Today's Proposed Regulation?
Once this regulation is in effect, the effluent limitations must be
applied in all NPDES permits thereafter issued to discharges covered
under this effluent limitations guideline subcategory. The CWA,
however, provides certain variances from BAT and BCT limitations. Under
301(l), the only variance available for discharges from the production
area is an FDF variance under 301(m). For the land application area,
301(g) variances don't apply because EPA is not setting BAT effluent
limitations for the five pollutants to which that provision applies.
301(c) and FDF variances are available for effluent limitations
covering the land application area.
The Fundamentally Different Factors (FDF) variance considers those
facility specific factors which a permittee may consider to be uniquely
different from those considered in the formulation of an effluent
guideline as to make the limitations inapplicable. An FDF variance must
be based only on information submitted to EPA during the rulemaking
establishing the effluent limitations from which the variance is being
requested, or on information the applicant did not have a reasonable
opportunity to submit during the rulemaking process for these effluent
limitations guidelines. If fundamentally different factors are
determined, by the permitting authority (or EPA), to exist, the
alternative effluent limitations for the petitioner must be no less
stringent than those justified by the fundamental difference from those
facilities considered in the formulation of the specific effluent
limitations guideline of concern. The alternative effluent limitation,
if deemed appropriate, must not result in non-water quality
environmental impacts significantly greater than those accepted by EPA
in the promulgation of the effluent limitations guideline. FDF variance
requests with all supporting information and data must be received by
the permitting authority within 180 days of publication of the final
effluent limitations guideline (Publication date here). The specific
regulations covering the requirements for and the administration of FDF
variances are found at 40 CFR 122.21(m)(1), and 40 CFR part 125,
subpart D.
[[Page 3079]]
X. What Are the Costs and Economic Impacts of the Proposed
Revisions?
A. Introduction and Overview
This section presents EPA's estimates of the costs and economic
impacts that would occur as a result of today's proposed regulations.
Costs and economic impacts are evaluated for each commodity sector,
including the beef, veal, heifer, dairy, swine, broiler, turkey and egg
laying sectors. A description of each of the ELG technology options and
the NPDES scenarios considered by EPA, and the rationale for selecting
the proposed BAT Option and NPDES Scenario, are provided in Sections
VII and VIII of this document. Detailed information on estimated
compliance costs are provided in the Development Document for the
Proposed Revisions to the National Pollutant Discharge Elimination
System Regulation and the Effluent Guidelines for Concentrated Animal
Feeding Operations (referred to as the ``Development Document''). EPA's
detailed economic assessment can be found in Economic Analysis of the
Proposed Revisions to the National Pollutant Discharge Elimination
System Regulation and the Effluent Guidelines for Concentrated Animal
Feeding Operations (referred to as ``Economic Analysis''). EPA also
prepared the Environmental and Economic Benefit Analysis of the
Proposed Revisions to the National Pollutant Discharge Elimination
System Regulation and the Effluent Guidelines for Concentrated Animal
Feeding Operations (``Benefits Analysis'') in support of today's
proposal. These documents are available at EPA's website at http://www.epa.gov/owm/afo.htm.
This section presents EPA's estimate of the total annual
incremental costs and the economic impacts that would be incurred by
the livestock and poultry industry as a result of today's proposed
rule. This section also discusses EPA's estimated effects to small
entities and presents the results of EPA's cost-effectiveness and cost-
benefit analysis. All costs presented in this document are reported in
1999 pre-tax dollars (unless otherwise indicated).
B. Data Collection Activities
1. Sources of Data To Estimate Compliance Costs
As part of the expedited approach to this rulemaking, EPA has
chosen not to conduct an industry-wide survey of all CAFOs using a
Clean Water Act Section 308 questionnaire. Rather, EPA is relying on
existing data sources and expertise provided by the U.S. Department of
Agriculture (USDA), industry, State agriculture extension agencies, and
several land grant universities. More detailed information on the data
used for this analysis can be found in the Development Document and
also the Economic Analysis.
EPA collected and evaluated data from a variety of sources. These
sources include information compiled through EPA site visits to over
100 animal confinement operations and information from industry trade
associations, government agencies, and other published literature. EPA
also received information from environmental groups such as the Natural
Resources Defense Council and the Clean Water Network. The Agency
contacted university experts, state cooperatives and extension
services, and state and EPA regional representatives to identify
facilities for site visits. EPA also attended USDA-sponsored farm tours
and site visits arranged by other groups, as well as industry,
academic, and government conferences.
EPA obtained data and information from several agencies in USDA,
including the National Agricultural Statistics Service (NASS), Natural
Resources Conservation Service (NRCS), the Animal and Plant Health
Inspection Service (APHIS), and the Economic Research Service (ERS).
The collected data include statistical survey information and published
reports.
EPA gathered information from a wide range of published NASS
reports, including annual data summaries for each commodity group.
USDA's NASS is responsible for objectively providing important, usable,
and accurate statistical information and data support services on the
structure and activities of agricultural production in the United
States. Each year NASS conducts surveys and prepares reports covering
virtually every facet of U.S. agricultural production. The primary
sources of data are animal production facilities in the United States.
NASS collects voluntary information using mail surveys, telephone and
in-person interviews, and field observations. NASS is also responsible
for conducting a Census of Agriculture.
EPA's main source of primary USDA data containing farm level
descriptive information is USDA's Census of Agriculture (Census).
USDA's Census is a complete accounting of United States agricultural
production and is the only source of uniform, comprehensive
agricultural data for every county in the nation. The Census is
conducted every 5 years by NASS. The Census includes all farm
operations from which $1,000 or more of agricultural products are
produced and sold. The most recent Census reflects calendar year 1997
conditions. This database is maintained by USDA. Data used for this
analysis were compiled with the assistance of staff at USDA's NASS.
(USDA periodically publishes aggregated data from these databases and
also compiles customized analyses of the data to members of the public
and other government agencies. In providing such analyses, USDA
maintains a sufficient level of aggregation to ensure the
confidentiality of any individual operation's activities or holdings.)
USDA's NRCS publishes the Agricultural Waste Management Field
Handbook, which is an agricultural engineering guidance manual that
explains general waste management principles and provides detailed
design information for particular waste management systems. USDA's
Handbook reports specific design information on a variety of farm
production and waste management practices at different types of
feedlots. The Handbook also reports runoff calculations under normal
and peak precipitation as well as information on manure and bedding
characteristics. EPA used this information to develop its cost and
environmental analyses. NRCS personnel also contributed technical
expertise in the development of EPA's estimates of compliance costs and
environmental assessment framework by providing EPA with estimates of
manure generation in excess of expected crop uptake. This information
is provided in the record that supports this rulemaking.
NRCS also compiled and performed analyses on Census data that EPA
used for its analyses. These data identify the number of feedlots,
their geographical distributions, and the amount of cropland available
to land apply animal manure generated from their confined feeding
operations (based on nitrogen and phosphorus availability relative to
crop need).
EPA gathered information from several reports on the livestock and
poultry industries from the National Animal Health Monitoring System
(NAHMS). USDA's APHIS provides leadership in ensuring the health and
care of animals and plants, improving agricultural productivity and
competitiveness, and contributing to the national economy and public
health. One of its main responsibilities is to enhance the care of
animals. In 1983, APHIS initiated the NAHMS as an information-gathering
program to collect, analyze, and disseminate data on animal health,
management, and productivity. NAHMS conducts national studies to gather
data and generate
[[Page 3080]]
descriptive statistics and information from data collected by other
industry sources.
USDA's ERS provides economic analyses on efficiency, efficacy, and
equity issues related to agriculture, food, the environment, and rural
development to improve public and private decision-making. EPA's
analysis of economic impacts at a model CAFO references a wide range of
published ERS reports and available farm level statistical models. ERS
also maintains farm level profiles of cost and returns compiled from
NASS financial data.
Databases and reports containing the information and data used by
EPA in support of this proposed rule are available in the rulemaking
record.
2. Sources of Data To Estimate Economic Impacts
To estimate economic impacts, EPA used farm level data from USDA,
industry, and land grant universities. The major source of primary USDA
data on farm financial conditions is from the Agricultural Resources
Management Study (ARMS). ARMS is USDA's primary vehicle for data
collection on a broad range of issues about agricultural production
practices and costs. These data provide a national perspective on the
annual changes in the financial conditions of production agriculture.
USDA's ARMS data provide aggregate farm financial data, which EPA
used for its cost impact analysis. The ARMS data provide complete
income statement and balance sheet information for U.S. farms in each
of the major commodity sectors, including those affected by the
proposed regulations. The ARMS financial data span all types of farming
operations within each sector, including full-time and part-time
producers, independent owner operations and contract grower operations,
and confinement and non-confinement production facilities.
ERS provided aggregated data for select representative farms
through special tabulations of the ARMS data that differentiate the
financial conditions among operations by commodity sector, facility
size (based on number of animals on-site) and by major producing region
for each sector. The 1997 ARMS data also provide corresponding farm
level summary information that matches the reported average financial
data to both the total number of farms and the total number of animals
for each aggregated data category. As with the Census data, ERS
aggregated the data provided to EPA to preserve both the statistical
representativeness and confidentiality of the ARMS survey data. ARMS
data used for this analysis are presented in the Economic Analysis and
are available in the rulemaking record.
EPA obtained additional market data on the U.S. livestock and
poultry industries as a whole from a wide variety of USDA publications
and special reports. These include: Financial Performance of U.S.
Commercial Farms, 1991-1994; USDA Baseline Projections 2000, Food
Consumption, Prices and Expenditures, 1970-1997; Agricultural Prices
Annual Summary; annual NASS statistical bulletins for these sectors;
and data and information reported in Agricultural Outlook and ERS's
Livestock, Dairy, and Poultry Situation and Outlook reports. Other
source material is from ERS's cost of production series reports for
some sectors and trade reports compiled by USDA's Foreign Agricultural
Service (FAS). Information on the food processing segments of these
industries is from the U.S. Department of Commerce's Census of
Manufacturers data series. Industry information is also from USDA's
Grain Inspection Packers and Stockyards Administration (GIPSA).
Industry and the associated trade groups also provided information
for EPA's cost and market analyses. In particular, the National
Cattlemen's Beef Association (NCBA) conducted a survey of its
membership to obtain financial statistics specific to cattle feeding
operations. EPA used these and other data to evaluate how well the ARMS
data for beef operations represent conditions at cattle feedyards. EPA
also obtained industry data from the National Milk Producers Federation
(NMPF) and the National Pork Producers Council (NPPC).
EPA also used published research by various land grant universities
and their affiliated research organizations, as well as information
provided by environmental groups.
Databases and reports containing the information and data provided
to and used by EPA in support of this proposed rule are available in
the rulemaking record.
C. Method for Estimating Compliance Costs
1.Baseline Compliance
For the purpose of this analysis, EPA assumes that all CAFOs that
would be subject to the proposed regulations are currently in
compliance with the existing regulatory program (including the NPDES
regulations and the effluent limitations guidelines and standards for
feedlots) and existing state laws and regulations. As a practical
matter, EPA recognizes that this is not true, since only 2,500
operations out of an estimated 12,700 CAFOs with more than 1,000 AU
have actually obtained coverage under an NPDES permit and the remainder
may in fact experience additional costs to comply with the existing
requirements. EPA has not estimated these additional costs in the
analysis that is presented in today's preamble because the Agency did
not consider these costs part of the incremental costs of complying
with today's proposed rule.
To assess the incremental costs attributable to the proposed rules,
EPA evaluated current federal and state requirements for animal feeding
operations and calculated compliance costs of the proposed requirements
that exceed the current requirements. Operations located in states that
currently have requirements that meet or exceed the proposed regulatory
changes would already be in compliance with the proposed regulations
and would not incur any additional cost. These operations are not
included as part of the cost analysis. A review of current state waste
management requirements for determining baseline conditions is included
in the Development Document and also in other sections of the record
(See State Compendium: Programs and Regulatory Activities Related to
Animal Feeding Operations compiled by EPA and available at http://www.epa.gov/owm/afo.htm#Compendium).
EPA also accounted for current structures and practices that are
assumed to be already in place at operations that may contribute to
compliance with the proposed regulations. Additional information is
also provided in the following section (X.C.2(a)). This information is
also provided in the Development Document.
2. Method for Estimating Incremental CAFO Compliance Costs
a. Compliance Costs to CAFO Operators. For the purpose of
estimating total costs and economic impacts, EPA calculated the costs
of compliance for CAFOs to implement each of the regulatory options
being considered (described in Section VIII of this preamble). EPA
estimated costs associated with four broad cost components: nutrient
management planning, facility upgrades, land application, and
technologies for balancing on-farm nutrients. Nutrient management
planning costs include manure and soil testing, record keeping,
monitoring of surface water and groundwater, and plan development.
Facility upgrades reflect costs for
[[Page 3081]]
manure storage, mortality handling, storm water and field runoff
controls, reduction of fresh water use, and additional farm management
practices. Land application costs address agricultural application of
nutrients and reflect differences among operations based on cropland
availability for manure application. Specific information on the
capital costs, annual operating and maintenance costs, start-up or
first year costs, and also recurring costs assumed by EPA to estimate
costs and impacts of the proposed regulations is provided in the
Development Document.
EPA evaluated compliance costs using a representative facility
approach based on more than 170 farm level models that were developed
to depict conditions and to evaluate compliance costs for select
representative CAFOs. The major factors used to differentiate
individual model CAFOs include the commodity sector, the farm
production region, and the facility size (based on herd or flock size
or the number of animals on-site). EPA's model CAFOs primarily reflect
the major animal sector groups, including beef cattle, dairy, hog,
broiler, turkey, and egg laying operations. Practices at other
subsector operations are also reflected in the cost models, such as
replacement heifer operations, veal operations, flushed caged layers,
and hog grow- and farrow-finish facilities. EPA used model facilities
with similar waste management and production practices to depict
operations in regions that were not separately modeled.
Another key distinguishing factor incorporated into EPA's model
CAFOs includes information on the availability of crop and pasture land
for land application of manure nutrients. For this analysis, nitrogen
and phosphorus rates of land application are evaluated for three
categories of cropland availability: Category 1 CAFOs are assumed to
have sufficient cropland for all on-farm nutrients generated, Category
2 CAFOs are assumed to have insufficient cropland, and Category 3 CAFOs
are assumed to have no cropland. EPA used 1997 information from USDA to
determine the number of CAFOs within each category. This information
takes into account which nutrient (nitrogen or phosphorus) is used as
the basis to assess land application and nutrient management costs.
For Category 2 and Category 3 CAFOs, EPA evaluated additional
technologies that may be necessary to balance nutrients. EPA evaluated
additional technologies that reduce off-site hauling costs associated
with excess on-farm nutrients, as well as to address ammonia
volatization, pathogens, trace metals, and antibiotic residuals. These
technologies may include Best Management Practices (BMPs) and various
farm production technologies, such as feed management strategies,
solid-liquid separation, composting, anaerobic digestion, and other
retrofits to existing technologies. EPA considered all these
technologies for identification of ``best available technologies''
under the various options for BAT described in Section VIII.
EPA used soil sample information compiled by researchers at various
land grant universities to determine areas of phosphorus and nitrogen
saturation, as described in the Development Document. This information
provides the basis for EPA's assumptions of which facilities would need
to apply manure nutrients on a phosphorus- or nitrogen-based standard.
EPA's cost models also take into account other production factors,
including climate and farmland geography, land application and waste
management practices and other major production practices typically
found in the key producing regions of the country. Model facilities
reflect major production practices used by larger confined animal
farms, generally those with more than 300 AU. Therefore, the models do
not reflect pasture and grazing type farms, nor do they reflect typical
costs to small farms. EPA's cost models also take into account
practices required under existing state regulations and reflect cost
differences within sectors depending on manure composition, bedding
use, and process water volumes. More information on the development of
EPA's cost models is provided in the Development Document.
To estimate aggregate incremental costs to the CAFO industry from
implementing a particular technology option, EPA first estimated the
total cost to a model facility to employ a given technology, including
the full range of necessary capital, annual, start-up, and recurring
costs. Additional detailed information on the baseline and compliance
costs attributed to model CAFOs across all sectors and across all the
technology options considered by EPA is provided in the Development
Document.
After estimating the total cost to an individual facility to employ
a given technology, EPA then weighted the average facility level cost
to account for current use of the technology or management practice
nationwide. This is done by multiplying the total cost of a particular
technology or practice by the percent of operations that are believed
to use this particular technology or practice in order to derive the
average expected cost that could be incurred by a model CAFO. EPA
refers to this adjustment factor as the ``frequency factor'' and has
developed such a factor for each individual cost (i.e. each technology)
and cost component (i.e. capital and annual costs) in each of its CAFO
models. The frequency factor reflects the percentage of facilities that
are, technically, already in compliance with a given regulatory option
since they already employ technologies or practices that are protective
of the environment. The frequency factor also accounts for compliance
with existing federal and state regulatory requirements as well as the
extent to which an animal sector has already adopted or established
management practices to control discharges.
EPA developed its frequency factors based on data and information
from USDA's NRCS and NAHMS, state agricultural extension agencies,
industry trade groups and industry-sponsored surveys, academic
literature, and EPA's farm site visits. More detailed information on
how EPA developed and applied these weighting factors is provided in
the Development Document. To identify where farm level costs may be
masked by this weighting approach, EPA evaluated costs with and without
frequency factors. The results of this sensitivity analysis indicate
that the model CAFO costs used to estimate aggregate costs and impacts,
as presented in this preamble, are stable across a range of possible
frequency factor assumptions.
The data and information used to develop EPA's model CAFOs were
compiled with the assistance of USDA, in combination with other
information collected by EPA from extensive literature searches, more
than 100 farm site visits, and numerous consultations with industry,
universities, and agricultural extension agencies. Additional detailed
information on the data and assumptions used to develop EPA's model
CAFOs that were used to estimate aggregate incremental costs to the
CAFO industry is provided in the Development Document.
b. Compliance Costs to Recipients of CAFO Manure. To calculate the
cost to offsite recipients of CAFO manure under the proposed
regulations, EPA builds upon the cropland availability information in
the CAFO models, focusing on the two categories of farms that have
excess manure nutrients and that need to haul manure offsite for
alternative use or to be spread as
[[Page 3082]]
fertilizer (i.e., Category 2 and Category 3 CAFOs, where facilities are
assumed to have insufficient or no available cropland to land apply
nutrients, respectively). EPA also uses this information to determine
the number of offsite recipients affected under select regulatory
alternatives, shown in Tables 10-3 and 10-4.
USDA defines farm level ``excess'' of manure nutrients on a
confined livestock farm as manure nutrient production less crop
assimilative capacity. USDA has estimated manure nutrient production
using the number of animals by species, standard manure production per
animal unit, and nutrient composition of each type of manure.
Recoverable manure is the amount that can be collected and disposed by
spreading on fields or transporting off the producing farm.
Depending on the nutrient used to determine the rate of manure
application (nitrogen or phosphorus), EPA estimates that approximately
7,500 to 10,000 CAFOs with more than 300 AU are expected to generate
excess manure. This includes about 2,600 animal feeding operations that
have no major crop or pasture land. These estimates were derived from a
USDA analysis of manure nutrients relative to the capacity of cropland
and pastureland to assimilate nutrients. EPA's estimate does not
account for excess manure that is already disposed of via alternative
uses such as pelletizing or incineration.
For the purpose of this analysis, EPA assumes that affected offsite
facilities are field crop producers who use CAFO manure as a fertilizer
substitute. Information on crop producers that currently receive animal
manure for use as a fertilizer substitute is not available. Instead,
EPA approximates the number of operations that receive CAFO manure and
may be subject to the proposed regulations based on the number of acres
that would be required to land apply manure nutrients generated by
Category 2 and Category 3 CAFOs. EPA assumes that offsite recipients
will only accept manure when soil conditions allow for application on a
nitrogen basis. Therefore, the manure application rate at offsite acres
in a given region is the nitrogen-based application rate for the
typical crop rotation and yields obtained in that region. EPA then
estimates the number of farms that receive CAFO manure by dividing the
acres needed to assimilate excess manure nitrogen by the national
average farm size of 487 acres, based on USDA data. The results of this
analysis indicate that 18,000 to 21,000 offsite recipients would
receive excess CAFO manure.
The costs assessed to manure recipients include the costs of soil
testing and incremental recordkeeping. EPA evaluated these costs using
the approach described in Section X.C.2(a). Excess manure hauling costs
are already included in costs assessed to CAFOs with excess manure. For
the purpose of this analysis, EPA has assumed that crop farmers already
maintain records documenting crop yields, crop rotations, and
fertilizer application, and that crop farmers already have some form of
nutrient management plan for determining crop nutrient requirements.
EPA estimates, on average, per-farm incremental costs of approximately
$540 to non-CAFOs for complying with the offsite certification
requirements. This analysis is provided in the Development Document.
3. Cost Annualization Methodology
As part of EPA's costing analysis, EPA converts the capital costs
that are estimated to be incurred by a CAFO to comply with the proposed
requirements, described in Section X.C.2, to incremental annualized
costs. Annualized costs better describe the actual compliance costs
that a model CAFO would incur, allowing for the effects of interest,
depreciation, and taxes. EPA uses these annualized costs to estimate
the total annual compliance costs and to assess the economic impacts of
the proposed requirements to regulated CAFOs that are presented in
Sections X.E and X.F.
Additional information on the approach used to annualize the
incremental compliance costs developed by EPA is provided in Appendix A
of the Economic Analysis. EPA uses a 10-year recovery period of
depreciable property based on the Internal Revenue Code's guidance for
single purpose agricultural or horticultural structures. The Internal
Revenue Service defines a single purpose agricultural structure as any
enclosure or structure specifically designed, constructed and used for
housing, raising, and feeding a particular kind of livestock, including
structures to contain produce or equipment necessary for housing,
raising, and feeding of livestock. The method EPA uses to depreciate
capital investments is the Modified Accelerated Cost Recovery System
(MACRS).
EPA assumes a real private discount/interest rate of 7 percent, as
recommended by the Office of Management and Budget. EPA also assumes
standard federal and average state tax rates across the broad facility
size categories to determine an operation's tax benefit or tax shield,
which is assumed as an allowance to offset taxable income.
D. Method for Estimating Economic Impacts
To estimate economic impacts under the proposed regulations, EPA
examined the impacts across three industry segments: regulated CAFOs,
processors, and national markets.
1. CAFO Analysis
EPA estimates the economic impacts of today's proposed regulations
using a representative farm approach. A representative farm approach is
consistent with past research that USDA and many land grant
universities have conducted to assess a wide range of policy issues,
including environmental legislation pertaining to animal agriculture. A
representative farm approach provides a means to assess average impacts
across numerous facilities by grouping facilities into broader
categories to account for the multitude of differences among animal
confinement operations. Information on how EPA developed its model
CAFOs is available in the Economic Analysis. Additional information on
EPA's cost models is provided in the Development Document. At various
stages in the proposed rulemaking, EPA presented its proposed
methodological approach to USDA personnel and to researchers at various
land grant universities for informal review and feedback.
Using a representative farm approach, EPA constructed a series of
model facilities that reflect the EPA's estimated compliance costs and
available financial data. EPA uses these model CAFOs to develop an
average characterization for a group of operations. EPA's cost models
were described earlier in Section X.C.2(a). From these models, EPA
estimates total annualized compliance costs by aggregating the average
facility costs across all operations that are identified for a
representative group. EPA's cost models are compared to corresponding
model CAFOs that characterize financial conditions across differently
sized, differently managed, and geographically distinct operations. As
with EPA's cost models, EPA's financial models are grouped according to
certain distinguishing characteristics for each sector, such as
facility size and production region, that may be shared across a broad
range of facilities. Economic impacts under a post-regulatory scenario
are approximated by extrapolating the average impacts for a given model
CAFO across the larger
[[Page 3083]]
number of operations that share similar production characteristics and
are identified by that CAFO model.
EPA compares its estimated compliance costs at select model CAFOs
to corresponding financial conditions at these model facilities. For
this analysis, EPA focuses on three financial measures that are used to
assess the affordability of the proposed CAFO regulations. These
include total gross revenue, net cash income, and debt-to-asset ratio.
Financial data used by EPA to develop its financial models are from the
1997 ARMS data summaries prepared by ERS and form the basis for the
financial characterization of the model CAFOs. To account for changes
in an operation's income under post-compliance conditions, EPA
estimated the present value of projected facility earnings, measured as
a future cash flow stream. The present value of cash flow represents
the value in terms of today's dollars of a series of future receipts.
EPA calculated baseline cash flow as the present value of a 10-year
stream of an operation's cash flow. EPA projected future earnings from
the 1997 baseline using USDA's Agricultural Baseline Projections data.
Section 4 of the Economic Analysis provides additional information on
the baseline financial conditions attributed to EPA's model CAFO across
all sectors as well as information on the data and assumptions used to
develop these models.
EPA evaluates the economic achievability of the proposed
requirements based on changes in representative financial conditions
for select criteria, as described in Section X.F.1. For some sectors,
EPA evaluates economic impacts at model CAFOs under varying scenarios
of cost passthrough between the CAFO and the latter stages in the food
marketing chain, such as the processing and retail sectors. These three
scenarios include: zero cost passthrough, full (100 percent) cost
passthrough, and partial cost passthrough (greater than zero). Partial
cost passthrough values used for this analysis vary by sector and are
based on estimates of price elasticity of supply and demand reported in
the academic literature. This information is available in the docket.
Table 10-1 lists the range of annualized compliance costs developed
for EPA's analysis. Annualized costs for each sector are summarized
across the estimated range of minimum and maximum costs across all
facility sizes and production regions and are broken out by land use
category (described in Section X.C.2). In some cases, ``maximum'' costs
reflect average costs for a representative facility that has a large
number of animals on-site; EPA's cost models for very large CAFOs are
intended to approximate the average unit costs at the very largest
animal feeding operations. More detailed annualized costs broken out by
production region, land use category, and broad facility size groupings
are provided in the Economic Analysis.
Estimated annualized costs shown in Table 10-1 are presented in
1999 dollars (post-tax). All costs presented in today's preamble have
been converted using the Construction Cost Index to 1999 dollars from
the 1997 dollar estimates that are presented throughout the Development
Document and the Economic Analysis. As shown in the table, costs for
Category 3 CAFOs may be lower than those for Category 1 CAFOs since
facilities without any land do not incur any additional incremental
costs related to hauling. EPA has assumed that these operations are
already hauling off-site in order to comply with existing requirements.
More detailed cost estimates for individual technologies are provided
in the Development Document.
To assess the impact of the regulations on offsite recipients of
CAFO manure, EPA compares the estimated cost of this requirement to
both aggregate and average per farm production costs and revenues (a
sales test). This analysis uses EPA's estimated compliance costs and
1997 aggregate farm revenues and production costs reported by USDA. For
the purpose of this analysis, EPA assumes that these costs will be
incurred by non-CAFO farming operations (i.e., crop producers) that use
animal manures as a fertilizer substitute and will not be borne by
CAFOs.
Table 10-1.--Range of Annualized Model CAFO Compliance Costs ($1999, post-tax)
----------------------------------------------------------------------------------------------------------------
Category 1 \1\ Category 2 \1\ Category 3 \1\
Sector -----------------------------------------------------------------
Minimum Maximum Minimum Maximum Minimum Maximum
----------------------------------------------------------------------------------------------------------------
(1999 dollars per model CAFO across all size groups)
----------------------------------------------------------------------------------------------------------------
Beef.......................................... 2,100 986,000 8,500 1,219,800 1,000 896,700
Veal.......................................... 1,500 8,100 1,100 6,100 1,000 6,000
Heifers....................................... 1,700 16,900 2,000 17,900 1,200 11,700
Dairy......................................... 5,200 44,600 14,700 67,700 4,200 40,300
Hogs: GF \2\.................................. 300 52,300 5,500 63,500 11,400 81,500
Hogs: FF \2\.................................. 300 82,900 8,800 100,600 10,000 115,500
Broilers...................................... 4,800 36,300 4,400 25,800 3,900 21,400
Layers: wet \3\............................... 300 24,800 2,100 29,300 1,500 18,100
Layers: dry \3\............................... 1,500 59,000 1,400 31,700 1,200 27,600
Turkeys....................................... 4,900 111,900 4,800 29,500 3,800 20,800
----------------------------------------------------------------------------------------------------------------
Source: EPA.
\1\ Category 1 CAFOs have sufficient cropland for all on-farm nutrients generated; Category 2 CAFOs have
insufficient cropland; and Category 3 CAFOs have no cropland.
\2\ ``Hogs: FF'' are farrow-finish (includes breeder and nursery pigs); ``Hogs: GF'' are grower-finish only.
\3\ ``Layers: wet'' are operations with liquid manure systems; ``Layers: dry'' are operations with dry systems.
2. Processor Analysis
As discussed in Section VI, EPA estimates that 94 meat packing
plants that slaughter hogs and 270 poultry processing facilities may be
subject to the proposed co-permitting requirements (Section VI). Given
the structure of the beef and dairy sectors and the nature of their
contract relationships, EPA expects that no meat packing or processing
facilities in these sectors will be subject to the proposed co-
permitting requirements. EPA bases these assumptions on data from the
Department of Commerce on the number of slaughtering and meat packing
facilities in these sectors and information from USDA on the degree of
[[Page 3084]]
animal ownership at U.S. farms, as described in Section VI of this
document. Additional information is provided in Section 2 of the
Economic Analysis. EPA is seeking comment on this assumption as part of
today's notice.
EPA did not conduct a detailed estimate of the costs and impacts
that would accrue to individual co-permittees. Information on
contractual relationships between contract growers and processing firms
is proprietary and EPA does not have the necessary market information
and data to conduct such an analysis. Market information is not
available on the number and location of firms that contract out the
raising of animals to CAFOs or on the number and location of contract
growers, and the share of production, that raise animals under a
production contract. In addition, EPA does not have data on the exact
terms of the contractual agreements between processors and CAFOs to
assess when a processor would be subject to the proposed co-permitting
requirements, and EPA does not have financial data for processing firms
or contract growers that utilize production contracts.
EPA, however, believes that the framework used to estimate costs to
CAFOs does provide a means to evaluate the possible upper bound of
costs that could accrue to processing facilities in those industries
where production contracts are more widely utilized and where EPA
believes the proposed co-permitting requirements may affect processors.
EPA's CAFO level analysis examines the potential share of (pre-tax)
costs that may be passed on from the CAFO, based on market information
for each sector. Assuming that a share of the costs that accrue to the
CAFO are eventually borne by processors, EPA is proposing that this
amount approximates the magnitude of the costs that may be incurred by
processing firms in those industries that may be affected by the
proposed co-permitting requirements. EPA solicits comment on this
approach.
To assess the impact of the regulations on processors, EPA compares
the passed through compliance costs to both aggregate processor costs
of production and to revenues (a sales test). These analyses use
estimated compliance costs, cost passthrough estimates, and aggregate
revenues and production costs by processing sector. National processor
cost and revenue data are from the U.S. Department of Commerce's Census
of Manufacturers data series. For some sectors, EPA evaluates the
impact of the proposed regulations on processors under two scenarios of
cost passthrough from the animal production sectors (described in
Section X.D.1), including full cost and partial cost passthrough. More
detail on this approach is provided in Section 4 of the Economic
Analysis.
This suggested approach does not assume any addition to the total
costs of the rule as a result of co-permitting. This approach also does
not assume that there will be a cost savings to contract growers as a
result of a contractual arrangement with a processing firm. This
approach merely attempts to quantify the potential magnitude of costs
that could accrue to processors that may be affected by the co-
permitting requirements. Due to lack of information and data, EPA has
not analyzed the effect of relative market power between the contract
grower and the integrator on the distribution of costs, nor the
potential for additional costs to be imposed by the integrator's need
to take steps to protect itself against liability and perhaps to
indemnify itself against such liability through its production
contracts. EPA has also not specifically analyzed the environmental
effects of co-permitting. EPA has conducted an extensive review of the
agricultural literature on market power in each of the livestock and
poultry sectors and concluded that there is little evidence to suggest
that increased production costs would be prevented from being passed on
through the market levels. This information is provided in the
rulemaking record. However, as discussed in Section VII.C.5, EPA
recognizes that some industry representatives do not support these
assumptions of cost passthrough from contract producers to integrators
and requests comments on its cost passthrough assumptions, both in
general and as they relate to the analysis of processor level impacts
under the proposed co-permitting requirements.
EPA's processor analysis does not explicitly account for the few
large corporate operations that are vertically integrated, to the
extent that the corporation owns and operates all aspects of the
operation, from animal production to final consumer product. These
operations are covered by EPA's CAFO analysis to the extent that they
are captured by USDA's farm survey and are included among EPA's model
CAFOs. While the ARMS data may include information on CAFOs that are
owned by corporate operations, these data cannot be broken out to
create a model specifically designed to represent these operations.
Since EPA's analysis uses farm financial data and not corporate data,
this analysis does not reflect the ability of corporations to absorb
compliance costs that may be incurred at CAFOs that are owned by that
entity. EPA expects that its analysis overestimates the impact to
corporate entities since revenues of corporate entities are, in most
cases, no less than and are likely to exceed those at a privately-owned
and operated CAFOs.
3. Market Analysis
EPA's market analysis evaluates the effects of the proposed
regulations on national markets. This analysis uses a linear partial
equilibrium model adapted from the COSTBEN model developed by USDA's
Economic Research Service. The modified EPA model provides a means to
conduct a long-run static analysis to measure the market effects of the
proposed regulations in terms of predicted changes in farm and retail
prices and product quantities. Market data used as inputs to this model
are from a wide range of USDA data and land grant university research.
EPA consulted researchers from USDA and the land grant universities in
the development of this modeling framework. The details of this model
are described in Appendix B of the Economic Analysis.
Once price and quantity changes are predicted by the model, EPA
uses national multipliers that relate changes in sales to changes in
total direct and indirect employment and also to national economic
output. These estimated relationships are based on the Regional Input-
Output Modeling System (RIMS II) from the U.S. Department of Commerce.
This approach is described in Section 4 of the Economic Analysis.
E. Estimated Annual Costs of the Proposed Regulatory Options/Scenarios
As discussed in Section VII and VIII, EPA considered various
technology options and also different scope scenarios as part of the
development of today's proposed regulations. A summary overview of the
ELG options and NPDES scenarios is provided in Table 10-2. More detail
is available in Sections VII and VIII of today's preamble.
[[Page 3085]]
Table 10-2.--Summary Description of Options/Scenarios Considered by EPA
------------------------------------------------------------------------
------------------------------------------------------------------------
Technology Options (ELG)
------------------------------------------------------------------------
Option 1.......................... N-based land application controls
and inspection and recordkeeping
requirements for the production
area (described in Section
VIII.C.3).
Option 2.......................... Same as Option 1, but restricts the
rate of manure application to a P-
based rate where necessary
(depending on specific soil
conditions at the CAFO).
Option 3 BAT (Beef/Heifers/Dairy). Adds to Option 2 by requiring all
operations to determine whether the
groundwater beneath the production
area has a direct hydrologic
connection to surface water; if so,
requires groundwater monitoring and
controls.
Option 4.......................... Adds to Option 3 by requiring
sampling of surface waters adjacent
to production area and/or land
under control of the CAFO to which
manure is applied.
Option 5 BAT (Swine/Poultry/Veal). Adds to Option 2 by establishing a
zero discharge requirement from the
production area that does not allow
for an overflow under any
circumstances.
Option 6.......................... Adds to Option 2 by requiring that
large hog and dairy operations
install and implement anaerobic
digestion and gas combustion to
treat their manure.
Option 7.......................... Adds to Option 2 by prohibiting
manure application to frozen, snow
covered or saturated ground.
------------------------------------------------------------------------
Regulatory Scope Options (NPDES)
------------------------------------------------------------------------
Scenario 1........................ Retains existing 3-tier framework
and establishes additional
requirements (described in Section
VII.C.2).
Scenario 2........................ Same as Scenario 1; operations with
300-1,000 AU would be subject to
the regulations based on certain
``risk-based'' conditions
(described in VII.C.3.b).
Scenario 3 ``Three-Tier''......... Same as Scenario 2, but allows
operations with 300-1,000 AU to
either apply for a NPDES permit or
to certify to the permit authority
that they do not meet any of the
conditions and thus are not
required to obtain a permit.
Scenario 4a ``Two-Tier'' (500 AU). Establishes 2-tier framework and
applies ELG standard to all
operations with more than 500 AU.
Scenario 4b....................... Establishes 2-tier framework and
applies ELG standard to all
operations with more than 300 AU.
Scenario 5 ``Two-Tier'' (750 AU).. Establishes 2-tier framework and
applies ELG standard to all
operations with more than 750 AU.
Scenario 6........................ Retains existing 3-tier framework
and establishes a simplified
certification process (described in
Section VII.C.2).
------------------------------------------------------------------------
The ``BAT Option'' refers to EPA's proposal to require nitrogen-
based and, where necessary, phosphorus-based land application controls
of all livestock and poultry CAFOs (Option 2), with the additional
requirement that all cattle and dairy operations must conduct
groundwater monitoring and implement controls, if the groundwater
beneath the production area has a direct hydrologic connection to
surface water (Option 3 BAT), and with the additional requirement that
all hog, veal, and poultry CAFOs must also achieve zero discharge from
the animal production area with no exception for storm events (Option 5
BAT). For reasons outlined in Section VIII, EPA is not proposing that
beef and dairy CAFOs meet the additional requirements under Option 5 or
that hog and poultry CAFOs meet the additional requirements under
Option 3. Section VIII discusses EPA's basis for the selection of these
technology bases for the affected subcateogries.
EPA is jointly proposing two NPDES Scenarios that differ in terms
of the manner in which operations are defined as a CAFO. Scenario 4a is
to the two-tier alternative that defines as CAFOs all animal feeding
operations with more than 500 AU (alternatively, Scenario 5 is the two-
tier alternative that defines all animal feeding operations with more
than 750 AU as CAFOs). Scenario 3 is three-tier structure that defines
as CAFOs all animal feeding operations with more than 1,000 AU and any
operation with more than 300 AU, if they meet certain ``risk-based''
conditions, as defined in Section VII. Under Scenario 3, EPA would
require all confinement operations with between 300 and 1,000 AU to
either apply for a NPDES permit or to certify to the permit authority
that they do not meet certain conditions and thus are not required to
obtain a permit.
For the purpose of this discussion, the ``two-tier structure''
refers to the combination of BAT Option 3 (beef and dairy
subcategories) and BAT Option 5 (swine and poultry subcategories), and
NPDES Scenario 4a that covers all operations with more than 500 AU.
Where indicated, the two-tier structure may refer to the alternative
threshold at 750 AU. The ``three-tier structure'' refers to the
combination of ELG Option 3 (beef and dairy subcategories) and Option 5
(swine and poultry subcategories), and NPDES Scenario 3 that covers
operations down to 300 AU based on certain conditions. More detail of
the technology options considered by EPA is provided in Section VIII.
Section VII of this preamble provides additional information on the
alternative scope scenarios considered by EPA. EPA did not evaluate
costs and economic impacts under the alternative three-tier structure
that combines the BAT Option with Scenario 6, as described in Table 10-
2.
Under the two-tier structure, EPA estimate that 25,540 CAFOs with
more than 500 AU may be defined as CAFOs and subject to the proposed
regulations. EPA estimates that 19,100 CAFOs may be defined as CAFOs
under the alternative two-tier threshold of 750 AU. Under the three-
tier structure, an estimated 31,930 CAFOs would be defined as CAFOs
(Table 6-2) and an additional 7,400 operations in the 300 to 1,000 AU
size range would need to certify that they do not need to apply for a
permit. This total estimate counts operations with more than a single
animal type only once. EPA's analysis computes total compliance costs
based on the total number of CAFOs in each sector, including mixed
operations that have more than 300 or 500 AU of at least one animal
type. This approach avoids understating costs at operations with more
than one animal type that may incur costs to comply with the proposed
requirements for each type of animal that is raised on-site that meets
the size threshold for a CAFO or is designated as a CAFO by the
permitting authority. Therefore, EPA's compliance costs estimates
likely represent the upper bound since costs at facilities with more
than a single animal type may, in some cases, be lower due to shared
production technologies and practices across all animal types that are
produced on-site.
[[Page 3086]]
1. Costs to CAFOs Under the Proposed Regulations
Tables 10-3 and 10-4 summarize the total annualized compliance
costs to CAFOs attributed to the proposed two-tier structure and three-
tier structure. The table shows these costs broken out by sector and by
broad facility size group. EPA calculated all estimated costs using the
data, methodology and assumptions described in Sections X.B and X.C.
Under the two-tier structure, EPA estimates that the incremental
annualized compliance cost to CAFO operators would be approximately
$831 million annually (Table 10-3). Table 10-5 shows estimated costs
for the two-tier structure at the 750 AU threshold, estimated by EPA to
total $721 million annually. Most of this cost (roughly 70 percent) is
incurred by CAFOs with more than 1,000 AU. Overall, about one-third of
all estimated compliance costs are incurred within the hog sectors.
Under the three-tier structure, EPA estimates that the total cost
to CAFO operators would be $925 million annually (Table 10-4). These
costs are expressed in terms of pre-tax 1999 dollars. (Post-tax costs
are estimated at $573 million and $635 million annually, respectively,
and include tax savings to CAFOs. EPA uses estimated post-tax costs to
evaluate impacts to regulated facilities, discussed in Section X.F.).
Estimated total annualized costs for the three-tier structure include
the cost to permitted CAFOs as well as the estimated cost to operations
to certify to the permit authority that they do not meet any of the
conditions and are thus are not required to obtain a permit. EPA
estimates certification costs at about $80 million annually, which
covers phosphorus-based PNP costs, facility upgrades, and letters of
certification from manure recipient. More information on these costs
and how they are calculated is provided in Section 5 of the Economic
Analysis.
Estimated total annualized costs shown in Table 10-3 and 10-4
include costs to animal confinement operations that may be designated
as CAFOs. Total annualized costs to designated facilities is estimated
at less than one million dollars annually (Tables 10-3 and 10-4). As
discussed in Section VI, EPA assumes that designation may bring an
additional 50 operations each year under the two-tier structure; under
the three-tier structure, EPA expects that an additional 10 operations
may be designated each year. In this analysis, estimated costs to
designated facilities are expressed on an average annual basis over a
projected 10-year period. For the purpose of this analysis, EPA assumes
that operations that may be designated as CAFOs and subject to the
proposed regulations will consist of beef, dairy, farrow-finish hog,
broiler and egg laying operations under the two-tier structure. Under
the three-tier structure, EPA estimates that fewer operations would be
designated as CAFOs, with 10 dairy and hog operations being designated
each year, or 100 operations over a 10-year period. Additional
information is provided in the Economic Analysis.
Table 10-3.--Annual Pre-tax Cost of Two-Tier Structure (BAT Option/Scenario 4a), $1999
----------------------------------------------------------------------------------------------------------------
Number of 500-1000
Sector operations Total >1000 AU AU 500 AU \1\
----------------------------------------------------------------------------------------------------------------
(number) \
2\ ($1999, millions, pre-tax)
----------------------------------------------------------------------------------------------------------------
Regulated CAFOs
----------------------------------------------------------------------------------------------------------------
Beef................................................ 3,080 216.4 191.5 24.7 0.1
Veal................................................ 90 0.3 0.03 0.3 NA
Heifer.............................................. 800 11.6 3.7 7.9 NA
Dairy............................................... 3,760 177.6 108.6 65.4 3.6
Hog................................................. 8,550 294.0 225.5 67.0 1.5
Broiler............................................. 9,780 97.1 55.4 41.6 0.1
Layer............................................... 1,640 14.2 9.9 4.3 NA
Turkey.............................................. 1,280 19.6 10.4 9.2 NA
-----------------------------------------------------------
Subtotal........................................ 25,540 830.7 605.0 220.2 5.4
----------------------------------------------------------------------------------------------------------------
Other Farming Operations
----------------------------------------------------------------------------------------------------------------
Offsite Recipients.................................. 17,923 9.6 NA NA NA
Total........................................... NA 840.3 NA NA NA
----------------------------------------------------------------------------------------------------------------
Source: USEPA. See Economic Analysis. Table 6-2 provides information on affected operations.
Numbers may not add due to rounding. NA = Not Applicable. Option/Scenario definitions provided in Table 10-2.
\1\ Cost estimates shown are for designated CAFOs (see Section VI).
\2\ ``Total'' adjusts for operations with more than a single animal type. The number of CAFOs shown includes
expected defined CAFOs only and excludes designated facilities.
Table 10-4.--Annual Pre-tax Cost of Three-Tier Structure (BAT Option/Scenario 3), $1999
----------------------------------------------------------------------------------------------------------------
Number of 300-1000
Sector operations Total >1000 AU AU 300 AU \1\
----------------------------------------------------------------------------------------------------------------
(number) \
2\ ($1999, million, pre-tax)
----------------------------------------------------------------------------------------------------------------
Regulated CAFOs
----------------------------------------------------------------------------------------------------------------
Beef................................................ 3,210 227.7 191.5 36.2 0.0
Veal................................................ 140 0.8 0.03 0.8 0.0
Heifer.............................................. 980 14.4 3.7 10.7 0.0
Dairy............................................... 6,480 224.6 108.6 115.3 0.7
Hog................................................. 8,350 306.1 225.5 80.4 0.2
[[Page 3087]]
Broiler............................................. 13,740 116.6 55.4 61.2 0.0
Layer............................................... 2,010 15.3 9.9 5.4 0.0
Turkey.............................................. 2,060 24.9 10.4 14.5 0.0
-----------------------------------------------------------
Subtotal........................................ 31,930 930.4 605.0 324.5 0.8
----------------------------------------------------------------------------------------------------------------
Other Farming Operations
----------------------------------------------------------------------------------------------------------------
Offsite Recipients.................................. 21,155 11.3 NA NA NA
-----------------------------------------------------------
Total........................................... NA 936.7 NA NA NA
----------------------------------------------------------------------------------------------------------------
Source: USEPA. See Economic Analysis. Table 6-2 provides information on affected operations.
Numbers may not add due to rounding. NA = Not Applicable. Option/Scenario definitions provided in Table 10-2.
\1\ Cost estimates shown are for designated CAFOs (see Section VI).
\2\ ``Total'' adjusts for operations with more than a single animal type. The number of CAFOs shown includes
expected defined CAFOs only and excludes designated facilities.
2. Costs to CAFOs of Alternative Regulatory Options and Scenarios
Alternative regulatory options considered by EPA during the
development of today's proposed regulations include various technology
options and also different regulatory scope scenarios. Sections VII and
VIII present the Agency's rationale for each regulatory decision.
Table 10-5 summarizes the total annualized (pre-tax) costs of
alternative technology options for each NPDES scenario and ELG
technology basis considered by EPA. As shown in the table, the total
estimated costs across these options range from $355 million (Option 1/
Scenario 1) to $1.7 billion annually (Option 5, applicable to all the
animal sectors, and Scenario 4b). By scenario, this reflects the fact
that fewer CAFOs would be affected under Scenario 1 (a total of about
16,400 operations) as compared to Scenario 4b (about 39,300 operations
affected). As noted in Section X.E, EPA's estimate of the number of
CAFOs and corresponding compliance costs does not adjust for operations
with mixed animal types and may be overstated. By technology option,
with the exception of Options 1 and 4, costs are evaluated incremental
to Option 2 (see Table 10-2). Compared to Option 2, Option 5 costs are
greatest. Additional breakout of these costs by sector are provided in
the Economic Analysis.
Table 10-5.--Annualized Pre-tax Costs for the Alternative NPDES Scenarios ($1999, million)
----------------------------------------------------------------------------------------------------------------
Scenario 4a Scenaro 2/3 Scenario 5 Scenario 4b
Option/Scenario ``Two-Tier'' ``Three-Tier'' Scenario 1 >750 AU >300 AU
----------------------------------------------------------------------------------------------------------------
Number of CAFOs \1\............. 25,540 28,860 16,420 25,770 39,320
Option 1........................ $432.1 $462.8 $354.6 $384.3 $493.6
Option 2........................ $548.8 $582.8 $444.4 $484.0 $633.3
Option 3........................ $746.7 $854.1 $587.0 $649.5 $883.6
Option 4........................ $903.9 $1,088.2 $707.0 $768.0 $1,121.2
Option 5........................ $1,515.9 $1,632.9 $1,340.9 $1,390.4 $1,671.3
Option 6........................ $621.6 $736.9 $501.5 $541.3 $706.6
Option 7........................ $671.3 $781.9 $542.4 $585.1 $756.6
BAT Option...................... $830.7 $925.1 $680.3 $720.8 $979.6
----------------------------------------------------------------------------------------------------------------
Source: USEPA. See Economic Analysis. Cost estimates shown include costs to designated operations.
Numbers may not add due to rounding. NA = Not Applicable. Option/Scenario definitions provided in Table 10-2.
\1\ ``Total'' adjusts for operations with more than a single animal type. The number of CAFOs shown includes
expected defined CAFOs only and excludes designated facilities.
3. Costs to Offsite Recipients of CAFO Manure Under the Proposed
Regulations
As described in Section VII, EPA is proposing that offsite
recipients of CAFO manure certify to the CAFO that manure will be land
applied in accordance with proper agriculture practices. As shown in
Table 10-3, EPA estimates that 18,000 non-CAFO farming operations will
receive manure and therefore be required to certify proper manure
utilization under the proposed two-tier structure. Under the
alternative three-tier structure, up to 3,000 additional farming
operations may be affected. EPA's analysis assumes that affected CAFO
manure recipients are mostly field crop producers who use CAFO manure
as a fertilizer substitute. EPA's analysis does not reflect manure
hauled offsite for alternative uses such as incineration or
pelletizing. EPA estimates the annualized cost of this requirement to
offsite recipients to be $9.6 to $11.3 million across the co-proposed
alternatives (Tables 10-3 and 10-4). This analysis is provided in the
Development Document.
Estimated costs to recipients of CAFO manure include incremental
recordkeeping and soil tests every 3 years. Conservation Technology
Information Center (CTIC) Core 4 survey data suggest an average of 46
percent crop farmers regularly sample their soil. EPA believes crop
farmers already maintain records pertaining to crop yields, nutrient
requirements, and fertilizer applications. EPA also assumed that crop
farmers have a nutrient management plan, though the plan is not
necessarily a PNP (Permit Nutrient Plan) or CNMP (Comprehensive
Nutrient Management Plan). EPA has evaluated alternative
[[Page 3088]]
approaches to ensuring that manure is handled properly, but is not
proposing to establish specific requirements for offsite recipients.
The costs to offsite recipients do not include the costs of spreading
manure at the offsite location or any additional payments made to
brokers or manure recipients in counties with excess manure. These
costs are likely to be offset by the fertilizer savings and organic
value associated with manure. EPA's analysis accounts for the costs
incurred by the CAFO for offsite transfer of excess manure in the
estimated industry compliance costs, described in Section X.E.1. These
costs include the cost of soil and manure sampling at the CAFO site,
training for manure applicators, application equipment calibration, and
the hauling cost of excess manure generated by the CAFO.
Under the proposed regulations, CAFOs would be required to apply
manure on a phosphorus basis where necessary, based on soil conditions,
and on a nitrogen basis elsewhere. EPA anticipates that offsite
recipients of CAFO manure will only accept manure when soil conditions
allow for application on a nitrogen basis. EPA believes this is a
reasonable assumption because crop farms are less likely to have a
phosphorus buildup associated with long term application of manure.
EPA's analysis assumes a nitrogen-based application rate for offsite
locations that is identical to the rate used by CAFOs in the same
geographic region. A summary of the data and methodology used by EPA to
calculate the number of affected offsite recipients and to estimate
costs is presented in Section X.C.2(b). EPA solicits comment on the
costs and assumptions pertaining to offsite recipients.
F. Estimated Economic Impacts of the Proposed Regulatory Options/
Scenarios
This section provides an overview of EPA's estimated economic
impacts across four industry segments that are included for this
analysis: CAFOs (both existing and new sources), non-CAFO recipients of
manure, processors, and consumer markets. More detailed information on
each of these analyses is available in the Economic Analysis.
1. CAFO Level Analysis
This section presents EPA's analysis of financial impacts to both
existing and new CAFOs that will be affected by the proposed
regulations, as well as impacts to offsite recipients of CAFO manure
who will also be required to comply with the proposed PNP requirements.
a. Economic Impacts to Existing CAFOs under the Proposed
Regulations. As discussed in Section X.C.1, EPA's CAFO level analysis
examines compliance cost impacts for a representative ``model CAFO.''
EPA evaluates the economic achievability of the proposed regulatory
options at existing animal feeding operations based on changes in
representative financial conditions across three criteria. These
criteria are: a comparison of incremental costs to total revenue (sales
test), projected post-compliance cash flow over a 10-year period, and
an assessment of an operation's debt-to-asset ratio under a post-
compliance scenario. To evaluate economic impacts to CAFOs in some
sectors, impacts are evaluated two ways'assuming that a portion of the
costs may be passed on from the CAFO to the consumer and assuming that
no costs passthrough so that all costs are absorbed by the CAFO.
EPA used the financial criteria to divide the impacts of the
proposed regulations into three impact categories. The first category
is the affordable category, which means that the regulations have
little or no financial impact on CAFO operations. The second category
is the moderate impact category, which means that the regulations will
have some financial impact on operations at the affected CAFOs, but EPA
does not consider these operations to be vulnerable to closure as a
result of compliance. The third category is the financial stress
category, which means that EPA considers these operations to be
vulnerable to closure post-compliance. More information on these
criteria is provided in Section 4 of the Economic Analysis.
The basis for EPA's economic achievability criteria for this
rulemaking is as follows. USDA's financial classification of U.S. farms
identifies an operation with negative income and a debt-asset ratio in
excess of 40 percent as ``vulnerable.'' An operation with positive
income and a debt-asset ratio of less than 40 percent is considered
``favorable.'' EPA adopted this classification scheme as part of its
economic achievability criteria, using net cash flow to represent
income. This threshold and cash flow criterion is established by USDA
and other land grant universities, as further described in Section 4 of
the Economic Analysis. The threshold values used for the cost-to-sales
test (3 percent, 5 percent and 10 percent) are those determined by EPA
to be appropriate for this rulemaking and are consistent with threshold
levels used by EPA to measure impacts of regulations for other point
source dischargers (as also documented in the Economic Analysis).
For this analysis, EPA's determination of economic achievability
used all three criteria. EPA considered the proposed regulations to be
economically achievable for a representative model CAFO if the average
operation has a post-compliance sales test estimate within an
acceptable range, positive post-compliance cash flow over a 10-year
period, and a post-compliance debt-to-asset ratio not exceeding 40
percent. If the sales test shows that compliance costs are less than 3
percent of sales, or if post-compliance cash flow is positive and the
post-compliance debt-to-asset ratio does not exceed 40 percent and
compliance costs are less than 5 percent of sales, EPA considers the
options to be ``Affordable'' for the representative CAFO group. A sales
test of greater than 5 percent but less than 10 percent of sales with
positive cash flow and a debt-to-asset ratio of less than 40 percent is
considered indicative of some impact at the CAFO level, but at levels
not as severe as those indicative of financial distress or
vulnerability to closure. These impacts are labeled ``Moderate'' for
the representative CAFO group. EPA considers both the ``Affordable''
and ``Moderate'' impact categories to be economically achievable by the
CAFO.
If (with a sales test of greater than 3 percent) post-compliance
cash flow is negative or the post-compliance debt-to-asset ratio
exceeds 40 percent, or if the sales test shows costs equal to or
exceeding 10 percent of sales, the proposed regulations are estimated
to be associated with potential financial stress for the entire
representative CAFO group. In such cases, each of the operations
represented by that group may be vulnerable to closure. These impacts
are labeled as ``Stress.'' EPA considers the ``Stress'' impact category
to indicate that the proposed requirements may not be economically
achievable by the CAFO, subject to other considerations.
Tables 10-6 and 10-7 present the estimated CAFO level impacts in
terms of the number of operations that fall within the affordable,
moderate, or stress impact categories for each of the co-proposed
alternatives by sector and facility size group. For some sectors,
impacts are shown for both the zero and the partial cost passthrough
assumptions (discussed more fully below). Partial cost passthrough
values vary by sector, as described in Section X.D.1.
EPA's costs model analyzes impacts under two sets of conditions for
ELG Option 3. Option 3A assumes that there is a hydrologic connection
from groundwater to surface waters at the
[[Page 3089]]
CAFO; Option 3 assumes average costs conditions across all operations--
both operations with and without a hydrologic link. Based on available
data and information, EPA's analysis assumes 24 percent of the affected
operations have a hydrologic connection to surface waters. More detail
on this assumption may be found in the rulemaking record. EPA solicits
comment on this assumption as part of today's proposed rulemaking.
Based on results shown in Tables 10-6 and 10-7, EPA proposes that
the regulatory alternatives are economically achievable for all
representative model CAFOs in the veal, turkey and egg laying sectors.
The proposed requirements under the two-tier structure are also
expected to be economically achievable by all affected heifer
operations. Furthermore, although operations across most sectors may
experience moderate impacts, EPA does not expect moderate financial
impacts to result in closure and considers this level of impact to be
economically achievable.
In the beef cattle, heifer, dairy, hog and broiler sectors,
however, EPA's analysis indicates that the proposed regulations will
cause some operations to experience financial stress, assuming no cost
passthrough. These operations may be vulnerable to closure by complying
with the proposed regulations. Across all sectors, an estimated 1,890
operations would experience financial stress under the two-tier
structure and an estimated 2,410 operations would experience stress
under the three-tier structure. For both tier structures, EPA estimates
that the percentage of operations that would experience impacts under
the stress category represent 7 percent of all affected CAFOs or 8
percent of all affected operations in the sectors where impacts are
estimated to cause financial stress (cattle, dairy, hog, and broiler
sectors).
Tables 10-6 shows results for the two-tier structure at the 500 AU
threshold. By sector, EPA estimates that 1,420 hog operations (17
percent of affected hog CAFOs), 320 dairies (9 percent of operations),
150 broiler operations (2 percent), and 10 beef operations (less than 1
percent) would experience financial stress. The broiler and hog
operations with these impacts have more than 1,000 AU on-site (i.e., no
operations with between 500 and 1,000 AU fall in the stress category).
The dairy and cattle operations with stress impacts are those that have
a ground water link to surface water. Although not presented here, the
results of the two-tier structure at the 750 AU threshold are very
similar in terms of number of operations affected. The results of this
analysis are presented in the Economic Analysis.
Table 10-7 presents results for the three-tier structure, and show
that 1,420 hog operations (17 percent of affected hog CAFOs under that
alternative), 610 dairies (9 percent of operations), 330 broiler
operations (2 percent), and 50 beef and heifer operations (1 percent)
will be adversely impacted. Hog operations with stress impacts all have
more than 1,000 AU. Affected broiler facilities include operations with
more than 1,000 AU, as well as operations with less than 1,000 AU.
Dairy and cattle operations in the stress category are operations that
have a hydrologic link from ground water to surface water. Based on
these results, EPA is proposing that the proposed regulations are
economically achievable.
In the hog and broiler sectors, EPA also evaluated financial
impacts with an assumption of cost passthrough. For the purpose of this
analysis, EPA assumes that the hog sector could passthrough 46 percent
of compliance costs and the broiler sector could passthrough 35 percent
of compliance costs. EPA derived these estimates from price
elasticities of supply and demand for each sector reported in the
academic literature. More detailed information is provided in Section 4
and Appendix C of the Economic Analysis. Assuming these levels of cost
passthrough in these sectors, the magnitude of the estimated impacts
decreases to the affordable or moderate impact category. Even in light
of the uncertainty of cost passthrough (both in terms of whether the
operations are able to pass cost increases up the marketing chain and
the amount of any cost passthrough), EPA proposes that the proposed
regulations will be economically achievable to all hog and broiler
operations.
Although EPA's analysis does not consider cost passthrough among
cattle or dairy operations, EPA does expect that long-run market and
structural adjustment by producers in this sector will diminish the
estimated impacts. However, EPA did determine that an evaluation of
economic impacts to dairy producers would require that EPA assume cost
passthrough levels in excess of 50 percent before operations in the
financial stress category would, instead, fall into the affordable or
moderate impact category. EPA did not conduct a similar evaluation of
estimated impacts to beef cattle and heifer operations.
EPA believes that the assumptions of cost passthrough are
appropriate for the pork and poultry sectors. As discussed in Section
VI, EPA expects that meat packing plants and slaughtering facilities in
the pork and poultry industries may be affected by the proposed co-
permitting requirements in today's proposed regulations. Given the
efficiency of integration and closer producer-processor linkages, the
processor has an incentive to ensure a continued production by contract
growers. EPA expects that these operations will be able to pass on a
portion of all incurred compliance costs and will, thus, more easily
absorb the costs associated with today's proposed rule. This
passthrough may be achieved either through higher contract prices or
through processor-subsidized centralized off-site or on-site waste
treatment and/or development of marketable uses for manure.
EPA recognizes, however, that some industry representatives do not
support assumptions of cost passthrough from contract producers to
integrators, as also noted by many small entity representatives during
the SBREFA outreach process as well as by members of the SBAR Panel.
These commenters have noted that integrators have a bargaining
advantage in negotiating contracts, which may ultimately allow them to
force producers to incur all compliance costs as well as allow them to
pass any additional costs down to growers that may be incurred by the
processing firm. To examine this issue, EPA conducted an extensive
review of the agricultural literature on market power in each of the
livestock and poultry sectors and concluded that there is little
evidence to suggest that increased production costs would be prevented
from being passed on through the market levels. This information is
provided in the rulemaking record. Given the uncertainty of whether
costs will be passed on, EPA's results are presented assuming some
degree of cost passthrough and also no cost passthrough (i.e., the
highest level of impacts projected). EPA requests comment on its cost
passthrough assumptions. Although EPA does consider the results of both
of these analyses in making its determination of economic
achievability, EPA's overall conclusions do not rely on assumptions of
cost passthrough.
Finally, EPA believes its estimated impacts may be overstated since
the analysis does not quantify various cost offsets that are available
to most operations. One source of potential cost offset is cost share
and technical assistance available to operators for on-site
improvements that are available from various state and federal
programs, such as the Environmental Quality
[[Page 3090]]
Incentives Program (EQIP) administered by USDA. Another source of cost
offset is revenue from manure sales, particularly of relatively higher
value dry poultry litter. EPA's analysis does not account for these
possible sources of cost offsets because the amount of cost offset is
likely variable among facilities, depending on certain site-specific
conditions. If EPA were to quantify the potential cost offsets as part
of its analysis, this would further support EPA's proposed
determination that the proposed requirements are economically
achievable to affected operations. This analysis and additional
supporting documentation is provided in Section 6 of the Economic
Analysis.
Appendix D of the Economic Analysis provides results of sensitivity
analyses, conducted by EPA, to examine the impact under differing model
assumptions. This analysis examines the change in the modeling results
from varying the baseline assumptions on gross and net cash income,
debt-to-asset ratios as well as other variability factors for model
CAFOs. These sensitivity analyses conclude that the results presented
here are stable across a range of possible modeling assumptions. EPA
also conducted sensitivity analysis of the compliance costs developed
for the purpose of estimating CAFO level impacts, as documented in the
Development Document.
Table 10-6.--Impacted Operations Under the Two-Tier Structure (BAT Option/Scenario 4a)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Number of affected operations)
-----------------------------------------------------------------------------
Sector Number of CAFOs Zero cost passthrough Partial cost passthrough
-----------------------------------------------------------------------------
Affordable Moderate Stress Affordable Moderate Stress
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fed Cattle............................................... 3,080 2,830 240 10 ND ND ND
Veal..................................................... 90 90 0 0 ND ND ND
Heifer................................................... 800 680 120 0 ND ND ND
Dairy.................................................... 3,760 3,240 200 320 ND ND ND
Hogs: GF \1\............................................. 2,690 1,710 180 810 2,690 0 0
Hogs: FF \1\............................................. 5,860 5,210 30 610 5,860 0 0
Broilers \4\............................................. 9,780 1,960 7,670 150 8,610 1,170 0
Layers--Wet \2\.......................................... 360 360 0 0 ND ND ND
Layers--Dry \2\.......................................... 1,280 1,280 0 0 ND ND ND
Turkeys.................................................. 1,280 1,230 50 0 ND ND ND
----------------------------------------------------------------------------------------------
Total \3\............................................ 28,970 18, 580 8,490 1,890 26,840 1,800 330
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USEPA. See Economic Analysis. Impact estimates shown include impacts to designated operations.
Numbers may not add due to rounding. ND=Not Determined. Option/Scenario definitions provided in Table 10-2.
Category definitions (``Affordable,'' ``Moderate'' and ``Stress'') are provided in Section X.F.1.
\1\ ``Hogs: FF'' are farrow-finish (includes breeder and nursery pigs); ``Hogs: GF'' are grower-finish only.
\2\ ``Layers: wet'' are operations with liquid manure systems; ``Layers: dry'' are operations with dry systems.
\3\ ``Total'' does not adjust for operations with mixed animal types, for comparison purposes, to avoid understating costs at operations with more than
one animal type that may incur costs to comply with the proposed requirements for each type of animal that is raised on-site.
Table 10-7.--Impacted Operations Under the Three-Tier Structure (BAT Option/Scenario 3)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Number of affected operations)
-----------------------------------------------------------------------------
Sector Number of Zero cost passthrough Partial cost passthrough
CAFOs -----------------------------------------------------------------------------
Affordable Moderate Stress Affordable Moderate Stress
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fed Cattle................................................ 3,210 2,540 650 20 ND ND ND
Veal...................................................... 140 140 0 0 ND ND ND
Heifer.................................................... 980 800 150 30 ND ND ND
Dairy..................................................... 6,480 5,300 560 610 ND ND ND
Hogs: GF \2\.............................................. 2,650 1,660 190 810 2,650 0 0
Hogs: FF \1\.............................................. 5,710 5,070 30 610 5,710 0 0
Broilers.................................................. 13,740 1,850 11,560 330 12,320 1,440 0
Layers--Wet \2\........................................... 360 360 0 0 ND ND ND
Layers--Dry \2\........................................... 1,660 1,660 0 0 ND ND ND
Turkeys................................................... 2,060 1,950 110 0 ND ND ND
---------------------------------------------------------------------------------------------
Total \3\............................................. 37,000 21,300 13,250 2,410 33,410 2,930 660
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USEPA. See Economic Analysis. Impact estimates shown include impacts to designated operations.
Numbers may not add due to rounding. ND=Not Determined. Option/Scenario definitions provided in Table 10-2.
Category definitions (``Affordable,'' ``Moderate'' and ``Stress'') are provided in Section X.F.1.
\1\ ``Hogs: FF'' are farrow-finish (includes breeder and nursery pigs); ``Hogs: GF'' are grower-finish only.
\2\ ``Layers: wet'' are operations with liquid manure systems; ``Layers: dry'' are operations with dry systems.
\3\ ``Total'' does not adjust for operations with mixed animal types, for comparison purposes, to avoid understating costs at operations with more than
one animal type that may incur costs to comply with the proposed requirements for each type of animal that is raised on-site.
b. Economic Impacts to Existing CAFOs under Alternative Regulatory
Options and Scenarios. Table 10-8 presents estimated financial stress
impacts to model CAFOs under alternative option and scenario
combinations, assuming that no costs passthrough. The results shown are
aggregated and combine impacts in the cattle sector (including all
beef, veal and heifer operations), hog sector (including all phases of
production), and poultry
[[Page 3091]]
sector (including all broiler, egg laying and turkey operations).
Results are shown for Scenario 4a (two-tier), Scenario 3 (three-tier),
and Scenario 4b. Results are shown for technology Options 1 through 5.
Additional information is available in the Economic Analysis that
supports today's rulemaking.
As shown in Table 10-8, the number of potential closures range from
610 operations (Option 1 in combination with all Scenarios) to more
than 14,000 potential closures (Option 4/Scenario 4b). Among options,
the number of possible closures are highest under the more stringent
options, including Options 3A (i.e., requires groundwater controls at
operations where there is a determined groundwater hydrologic
connection to surface waters), Option 4 (groundwater controls and
surface water sampling), and Option 5 (i.e., zero discharge from the
animal production area with no exception for storm events). Differences
across scenarios reflects differences in the number of affected
operations; accordingly, the number of closures is greatest under
Scenario 4b that would define as CAFOs all confinement operations with
more than 300 AU.
Table 10-8.--``Stress'' Impacts at CAFOs Under Alternative Options/Scenarios
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Number of operations)
Number of ------------------------------------------------------------------------------------
Sector CAFOs Option 3A
Option 1 Option 2 Option 3 \1\ Option 4 Option 5 BAT option
--------------------------------------------------------------------------------------------------------------------------------------------------------
BAT Option/NPDES Scenario 4a (>500 AU)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cattle................................................. 3,960 0 0 0 10 0 30 10
Dairy.................................................. 3,760 0 0 0 320 0 0 320
Hogs................................................... 8,550 610 300 230 310 570 1,420 1,420
Poultry................................................ 12,700 0 150 260 100 6,660 150 150
------------------------------------------------------------------------------------------------
Total \2\............................................ 28,970 610 450 490 730 7,230 1,590 1,890
--------------------------------------------------------------------------------------------------------------------------------------------------------
BAT Option/NPDES Scenario 4b (>300 AU)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cattle................................................. 5,330 0 0 0 90 30 180 90
Dairy.................................................. 7,140 0 0 0 700 0 0 700
Hogs................................................... 14,370 610 300 230 330 570 1,420 1,420
Poultry................................................ 18,300 0 320 470 380 11,030 320 320
------------------------------------------------------------------------------------------------
Total \2\............................................ 45,140 610 620 700 1,500 11,630 1,910 2,530
--------------------------------------------------------------------------------------------------------------------------------------------------------
BAT Option/NPDES Scenario 3 (>300 AU with certification)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cattle................................................. 4,330 0 0 0 50 0 100 50
Dairy.................................................. 6,480 0 0 0 610 0 0 610
Hogs................................................... 8,360 610 300 230 320 570 1,420 1,420
Poultry................................................ 17,830 0 330 470 370 10,740 330 330
Total \2\............................................ 37,000 610 630 700 1,350 11,310 1,850 2,410
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USEPA. See Economic Analysis. Impact estimates shown include impacts to designated operations.
Numbers may not add due to rounding. ND = Not Determined. Option/Scenario definitions provided in Table 10-2.
\1\ Option 3A impacts reflect operations where there is a determined groundwater hydrologic connection to surface waters (assumed at 24 percent of the
affected operations).
\2\ ``Total'' does not adjust for operations with mixed animal types, for comparison purposes, to avoid understating costs at operations with more than
one animal type that may incur costs to comply with the proposed requirements for each type of animal that is raised on-site. The number of CAFOs
shown includes expected defined CAFOs only and excludes designated facilities.
c. Economic Analysis of New CAFOs from NSPS under the Proposed
Regulations. For new sources, EPA is proposing that operations meet
performance standards, as specified by the BAT requirements (Option 3
NSPS, beef and dairy subcategories, and Option 5 NSPS, swine and
poultry subcategories), with the additional requirement that all new
hog and poultry operations also implement groundwater controls where
there is a hydrologic link to surface water (Option 3 NSPS, swine and
poultry subcategories). Additional information on new source
requirements is provided in Section VIII of this document.
In general, EPA believes that new CAFOs will be able to comply at
costs that are similar to, or less than, the costs for existing
sources, because new sources can apply control technologies more
efficiently than sources that need to retrofit for those technologies.
New sources will be able to avoid these costs that will be incurred by
existing sources. Furthermore, EPA believes that new sources can avoid
the costs associated with ground water protection through careful site
selection. There is nothing about today's proposal that would give
existing operators a cost advantage over new feedlot operators;
therefore, new source standards are not expected to present a barrier
to entry for new facilities.
EPA's analysis of the NSPS costs indicate that requiring Option 3
for new sources in the beef and dairy subcategories and both Option 3
NSPS and Option 5 NSPS for the swine and poultry subcategories
(``Option 5+3 NSPS'') would be affordable and would not create any
barriers to entry into those sectors. The basis for this determination
is as follows. Option 5+3 NSPS is considered equivalent to Option 5 for
new sources in terms of cost. EPA is proposing that Option 3 NSPS for
beef and dairy subcategories and Option 5 NSPS for swine and poultry
subcategories is economically achievable for existing sources. Since
the estimated costs for these options are the same as or less expensive
than costs for these same options for existing sources, no barriers to
entry are created.
Under Option 5+3 NSPS, costs for new sources in the swine and
poultry subcategories would be the same as or
[[Page 3092]]
less than those for equivalent existing sources (BAT under Option 5),
as long as new sources are not sited in areas where there is a
hydrologic link to surface water. New operations are not expected to
incur costs estimated under Option 3A, which includes groundwater
controls, since they are not likely to establish a new operation where
there is a hydrologic link to surface waters (and where operating
expenses would be more costly). Thus EPA assumes that the costs for
Option 5+3 NSPS are the same as those for Option 5 NSPS, which in turn
are the same as those for Option 5 BAT. EPA is proposing that Option 5
BAT is economically achievable for existing sources in the swine and
poultry subcategories and therefore this same option should be
affordable to new sources. Furthermore, because costs to new sources
for meeting Option 5 NSPS are no more expensive than the costs for
existing sources to meet Option 5 BAT, there should be no barriers to
entry.
The estimated costs of Option 3 NSPS for the beef and dairy
subcategories are the same as or less than the costs for Option 3 BAT,
which includes retrofitting costs. EPA is proposing that Option 3 BAT
is economically achievable for existing sources in these sectors. Since
Option 3 NSPS is no more expensive than Option 3 BAT, this option
should also be economically achievable for new sources and should not
create any barriers to entry. In fact, new sources may be able to avoid
the cost of implementing groundwater controls through careful site
selection, thus their costs may be substantially lower than similar
existing sources.
EPA did not consider an option similar to Option 5+3 NSPS for the
beef and dairy subcategories (Option 8 NSPS), but found this option to
be substantially more expensive than Option 3 BAT for the dairy sector
and could create barriers to entry for this sector. Therefore, EPA
rejected this option. See Section 5 of the Economic Analysis for more
details on these analyses.
d. Economic Impacts to Offsite Recipients of CAFO Manure of the
Proposed Regulations. As discussed in Section X.D.1, EPA assesses the
economic impact to offsite recipients of CAFO manure by comparing the
estimated cost of this requirement to both aggregate and average per-
farm production costs and revenues. For the purpose of this analysis,
EPA assumes that these regulatory costs will be borne by a non-CAFO
farming operation that uses animal manures as a fertilizer substitute.
EPA estimates that 17,900 to 21,200 farming operations will incur
$9.6 million to $11.3 million in costs associated with requirements for
the offsite transfer of CAFO manure (Tables 10-3 and Table 10-4). This
translates to an average cost of roughly $540 per recipient. As
reported by USDA, farm production expenses in 1997 totaled $150.6
billion nationwide. Revenue from farm sales totaled $196.9 billion.
Averaged across the total number of farms, average per-farm costs and
revenues were $78,800 and $113,000 in 1997, respectively. Using these
data, the ratio of incremental costs to offsite recipients as a share
of average operating expenses and average farm revenue is well under
one percent. Total estimated compliance costs ($9.6 million to $11.3
million annually) as a share of aggregate farm expenses and sales is
also under one percent. This analysis is provided in Section 5 of the
Economic Analysis.
2. Processor Level Analysis
As discussed in Section X.D.2, EPA did not conduct a detailed
estimate of the costs and impacts that would accrue to individual co-
permittees due to lack of data and market information. However, EPA
believes that the framework used to estimate costs to CAFO provides a
means to evaluate the possible upper bound of costs that could accrue
to potential co-permittees, based on the potential share of (pre-tax)
costs that may be passed on from the CAFO (described in Section X.D.2).
EPA is proposing that this amount approximates the magnitude of the
costs that may be incurred by processing firms in those industries that
may be affected by the proposed co-permitting requirements.
Table 10-9 presents the results of EPA's analysis. This analysis
focuses on the potential magnitude of costs to co-permittees in the
pork and poultry sectors only since these are the sectors where the
proposed co-permitting requirements could affect processing facilities.
However, EPA did not evaluate the potential magnitude of costs to egg
and turkey processors because the compliance costs to CAFOs in these
industries is projected to be easily absorbed by CAFOs (see Section
X.F.1). The results presented in Table 10-9 are for the pork and
broiler industries only. EPA also did not evaluate the potential costs
to cattle and dairy processors because EPA does not expect that the
proposed co-permitting requirements to affect meat packing and
processing facilities in these industries, for reasons outlined in
Section VI.
The potential magnitude of costs to co-permittees is derived from
the amount of cost passthrough assumed in the CAFO level analysis,
described in Section X.F.1. For this analysis, two scenarios of cost
passthrough to processors are evaluated: partial cost passthrough
(greater than zero) and also 100 percent cost passthrough. EPA's
partial cost passthrough scenario assumes that 46 percent of all hog
compliance costs and that 35 percent of all broiler compliance costs
are passed on to the food processing sectors. Based on the results of
this analysis, EPA estimates that the range of potential annual costs
to hog processors is $135 million (partial cost passthrough) to $306
million (full cost passthrough). EPA estimates that the range of
potential annual costs to broiler processors as $34 million (partial
cost passthrough) to $117 million (full cost passthrough). These
results are shown in Table 10-9 and are expressed in 1999 pre-tax
dollars.
To assess the magnitude of impacts that could accrue to processors
using this approach, EPA compares the passed through compliance costs
to both aggregate processor costs of production and to revenues (a
sales test). The results of this analysis are shown in Table 10-9 and
are presented in terms of the equivalent 1997 compliance cost as
compared to 1997 data from the Department of Commerce on the revenue
and costs among processors in the hog and broiler industries. As shown,
EPA estimates that, even under full cost passthrough, incremental cost
changes are less than two percent and passed through compliance costs
as a share of revenue are estimated at less than one percent. EPA
solicits comment on this approach. Additional information is provided
in the Economic Analysis.
[[Page 3093]]
Table 10-9.--Impact of Passed Through Compliance Costs Under Co-proposed Alternatives
--------------------------------------------------------------------------------------------------------------------------------------------------------
Passed through 1997 Passed through cost- Passed through cost-to-
compliance cost 1997 1997 to-revenues delivered cost
Sector -------------------------- revenues delivered ---------------------------------------------------
Partial CPT 100% CPT cost Partial CPT 100% CPT Partial CPT 100% CPT
--------------------------------------------------------------------------------------------------------------------------------------------------------
($1999, million)
($1997, million)
(percent, comparing costs in $1997)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hog Processors
--------------------------------------------------------------------------------------------------------------------------------------------------------
Two-Tier........................................ 135 294 38,500 15,700 0.3% 0.7% 0.8% 1.8%
Three-Tier...................................... 141 306 ........... ........... 0.4% 0.8% 0.9% 1.9%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Broiler Meat Processors
--------------------------------------------------------------------------------------------------------------------------------------------------------
Two-Tier........................................ 34 97 17,700 9,100 0.2% 0.5% 0.4% 1.0%
Three-Tier...................................... 41 117 ........... ........... 0.2% 0.6% 0.4% 1.2%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USEPA. 1997 processor revenues and costs are from the Department of Commerce. Option/Scenario definitions provided in Table 10-2. Estimated
compliance costs are pre-tax. CPT = Cost passthrough. Partial CPT assumes 46% CPT for the hog sector and 35% CPT for the broiler sector.
3. Market Level Analysis
As discussed in Section X.D.3, EPA's market analysis evaluates the
effects of the proposed regulations on commodity prices and quantities
at the national level. EPA's market model predicts that the proposed
regulations will not result in significant industry-level changes in
production and prices for most sectors. Tables 10-10 and 10-11 show
predicted farm and retail price changes across the two-tier (500 AU
threshold) and three-tier structures. For comparison purposes, the
average annual percentage change in price from 1990 to 1998 is shown.
Analyses of other technology options and scenarios considered by EPA
are provided in the record.
EPA expects that predicted changes in animal production may raise
producer prices, as the market adjusts to the proposed regulatory
requirements. For most sectors, EPA estimates that producer price
changes will rise by less than one percent of the pre-regulation
baseline price (Table 10-10). The exception is in the hog sector, where
estimated compliance costs slightly exceed one percent of the baseline
price. At the retail level, EPA expects that the proposed regulations
will not have a substantial impact on overall production or consumer
prices for value-added meat, eggs, and fluid milk and dairy products.
EPA estimates that retail price increases resulting from the proposed
regulations will be under one percent of baseline prices in all
sectors, averaging below the rate of general price inflation for all
foods (Table 10-11). In terms of retail level price changes, EPA
estimates that poultry and red meat prices will rise about one cent per
pound. EPA also estimates that egg prices will rise by about one cent
per dozen and that milk prices will rise by about one cent per gallon.
Appendix D of the Economic Analysis provides results of sensitivity
analyses, conducted by EPA, to examine the impact under differing model
assumptions. EPA examined variations in the price elasticities and
prices assumed for these industries, based on information reported in
the agricultural literature and statistical compendiums. These
sensitivity analyses demonstrate that the results presented here are
stable across a range of possible modeling assumptions.
Table 10-10.--Estimated Increases in Farm Prices Under the Co-proposed Alternatives
--------------------------------------------------------------------------------------------------------------------------------------------------------
Broilers Layers (cents/ Turkeys (cents/
Option/Scenario Beef ($/cwt) Dairy ($/cwt) Hogs ($/cwt) (cents/lb) doz.) lb)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pre-reg. Avg Price...................................... $68.65 $13.90 $56.41 38.43 72.51 41.66
Avg. Chg 90-98.......................................... 4.6% 8.0% 15.2% 5.7% 11.5% 4.4%
Two-Tier................................................ 0.22 0.06 0.61 0.19 0.14 0.13
Three-Tier.............................................. 0.24 0.08 0.66 0.23 0.15 0.16
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USEPA, except historical data that are from USDA. Option/Scenario definitions provided in Table 10-2.
Table 10-11.--Estimated Increases in Retail Prices Under the Co-proposed Alternatives
--------------------------------------------------------------------------------------------------------------------------------------------------------
Broilers Layers (cents/ Turkeys
Option/Scenario Beef ($/lb) Dairy (Index) Hogs ($/lb) (cents/lb) doz.) (cents/lb)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pre-reg. Avg Price...................................... $2.91 145.50 $2.55 156.86 110.11 109.18
Avg. Chg 90-98 (%)...................................... 2.3% 2.4% 5.1% 3.0% 7.2% 2.4%
Two-Tier................................................ 0.00 0.61 0.01 0.19 0.14 0.13
Three-Tier.............................................. 0.00 0.78 0.01 0.23 0.15 0.16
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USEPA, except historical data that are from USDA. Option/Scenario definitions provided in Table 10-2.
EPA does not expect that the proposed regulations will result in
significant changes in aggregate employment or national economic
output, measured in terms of Gross Domestic Product (GDP). EPA expects,
however, that there will be losses in employment and economic output
associated with decreases in animal production due to rising compliance
costs. These losses are estimated throughout the entire economy, using
[[Page 3094]]
available modeling approaches, and are not attributable to the
regulated community only. This analysis also does not adjust for
offsetting increases in other parts of the economy and other sector
employment that may be stimulated as a result of the proposed
regulations, such as the construction and farm services sectors.
Table 10-12 show these predicted changes. Employment losses are
measured in full-time equivalents (FTEs) per year, including both
direct and indirect employment. Under the two-tier structure (500 AU
threshold), EPA estimates that the reduction in aggregate national
level of employment is 16,600 FTEs. Under the three-tier structure, EPA
estimates total aggregate job losses at 18,900 FTEs. This projected
change is modest when compared to total national employment, estimated
at about 129.6 million jobs in 1997. EPA's estimate of the aggregate
reductions in national economic output is $1.7 billion under the two-
tier structure. Under the three-tier structure, EPA estimates the loss
to GDP at $1.9 billion. This projected change is also modest when
compared to total GDP, estimated at $8.3 trillion in 1997. Additional
information is available in the Economic Analysis.
Table 10-12.--Estimated Decreases in Employment and Economic Output
----------------------------------------------------------------------------------------------------------------
Option/ Scenario Beef Dairy Hogs Poultry Total
----------------------------------------------------------------------------------------------------------------
Estimated Decreases in Employment (Number of FTEs)
----------------------------------------------------------------------------------------------------------------
Two-Tier....................................... 4,600 3,200 6,400 2,400 16,600
Three-Tier..................................... 4,900 4,100 6,900 3,000 18,900
----------------------------------------------------------------------------------------------------------------
Estimated Decreases in Economic Output ($GDP)
----------------------------------------------------------------------------------------------------------------
Two-Tier....................................... $476 $307 $681 $251 $1,715
Three-Tier..................................... $510 $396 $734 $306 $1,946
----------------------------------------------------------------------------------------------------------------
Source: USEPA. Option/Scenario definitions provided in Table 10-2. FTE = Full-time equivalent.
G. Additional Impacts
1. Costs to the NPDES Permitting Authority
Additional costs will be incurred by the NPDES permitting authority
to alter existing state programs and obtain EPA approval to develop new
permits, review new permit applications and issue revised permits that
meet the proposed regulatory requirements. Under the proposed rule,
NPDES permitting authorities will incur administration costs related to
the development, issuance, and tracking of general or individual
permits.
State and federal administrative costs to issue a general permit
include costs for permit development, public notice and response to
comments, and public hearings. States and EPA may also incur costs each
time a facility operator applies for coverage under a general permit
due to the expenses associated with a Notice of Intent (NOI). These
per-facility administrative costs include initial facility inspections
and annual record keeping expenses associated with tracking NOIs.
Administrative costs for an individual permit include application
review by a permit writer, public notice, and response to comments. An
initial facility inspection may also be necessary. EPA developed its
unit permit costs assumed for this analysis based on information
obtained from a state permitting personnel. The cost assumptions used
to estimate develop, review, and approve permits and inspect facilities
are presented in the Development Document.
EPA assumes that, under the two-tier structure, an estimated 25,590
CAFOs would be permitted. This estimate consists of 24,760 State
permits (17,340 General and 7,420 Individual permits) and 1,030 Federal
permits (720 General and 310 Individual permits). Under the three-tier
structure, an estimated 31,930 CAFOs would be permitted, consisting of
30,650 State permits (21,460 General and 9,190 Individual permits) and
1,280 Federal permits (900 General and 380 Individual permits).
Information on the estimated number of permits required under other
regulatory alternatives is provided in the Economic Analysis. The basis
for these estimates is described in the Development Document that
supports this rulemaking.
As shown in Table 10-13, under the two-tier structure, EPA
estimates State and Federal administrative costs to implement the
permit program to be $6.2 million per year: $5.9 million for states and
$350,000 for EPA. Under the three-tier structure, EPA estimates State
and Federal administrative costs to implement the permit program to be
$7.7 million per year: $7.3 million for states and $416,000 for EPA.
EPA expects that the bulk (95 percent) of estimated administrative
costs will be incurred by the state permitting authority. EPA has
expressed these costs in 1999 dollars, annualized over the 5-year
permit life using a seven percent discount rate. The range of costs
across each of the regulatory options is $4.2 million to $9.1 million
annually (alternatives Scenario 1 and Scenario 4b, respectively). See
Table 10-13. (EPA did not estimate permit authority costs under
alternative NPDES Scenarios 5 and 6, described in Table 10-2.) This
analysis is available in the record and is summarized in Section 10 of
the Economic Analysis.
This analysis was conducted to evaluate the costs of the proposed
rule to governments, as required under the Unfunded Mandates Reform Act
(UMRA), as discussed in Section XIII.C of this preamble.
Table 10-13.--Annual State and Federal Administrative Costs, $1999
----------------------------------------------------------------------------------------------------------------
Regulatory scenario State Federal Total
----------------------------------------------------------------------------------------------------------------
Scenario 1...................................................... 3,922,990 268,630 4,191,620
Scenario 2...................................................... 7,233,470 413,060 7,646,530
Scenario 3 (``Three-tier'')..................................... 7,279,560 415,600 7,695,160
Scenario 4a (``Two-tier'')...................................... 5,910,750 351,090 6,224,040
[[Page 3095]]
Scenario 4b..................................................... 8,645,520 483,010 9,128,530
----------------------------------------------------------------------------------------------------------------
Source: USEPA. See Economic Analysis. Other supporting documentation is in the Development Document.
2. Community Impacts
As discussed in Section X.F.3, EPA does not expect that the
proposed regulations will result in significant increases in retail
food prices or reductions in national level employment.
EPA also considered other community level impacts associated with
this rulemaking. In particular, EPA considered whether the proposed
rule could have community level and/or regional impacts if it
substantially altered the competitive position of livestock and poultry
production across the nation, or led to growth or reductions in farm
production (in- or out-migration) in different regions and communities.
Ongoing structural and technological change in these industries has
influenced where farmers operate and has contributed to locational
shifts between the more traditional production regions and the more
emergent, nontraditional regions. Production is growing rapidly in
these regions due to competitive pressures from more specialized
producers who face lower per-unit costs of production. This is
especially true in hog and dairy production.
To evaluate the potential for differential impacts among farm
production regions, EPA examined employment impacts by region. EPA
concluded from this analysis that more traditional agricultural regions
would not be disproportionately affected by the proposed regulations.
This analysis is provided in the Economic Analysis.
EPA does not expect that today's proposed requirements will have a
significant impact on where animals are raised. On one hand, on-site
improvements in waste management and disposal, as required by the
proposed regulations, could accelerate recent shifts in production to
more nontraditional regions as higher cost producers in some regions
exit the market to avoid relatively higher retrofitting associated with
bringing existing facilities into compliance. On the other hand, the
proposed regulations may favor more traditional production systems
where operators grow both livestock and crops, since these operations
tend to have available cropland for land application of manure
nutrients. These types of operations tend to be more diverse and not as
specialized and, generally, tend to be smaller in size. Long-standing
farm services and input supply industries in these areas could likewise
benefit from the proposed rule, given the need to support on-site
improvements in manure management and disposal. Local and regional
governments, as well as other non-agricultural enterprises, would also
benefit.
3. Foreign Trade Impacts
Foreign trade impacts are difficult to predict, since agricultural
exports are determined by economic conditions in foreign markets and
changes in the international exchange rate for the U.S. dollar.
However, EPA predicts that foreign trade impacts as a result of the
proposed regulations will be minor given the relatively small projected
changes in overall supply and demand for these products and the slight
increase in market prices, as described in Section X.F.3.
Despite its position as one of the largest agricultural producers
in the world, historically the U.S. has not been a major player in
world markets for red meat (beef and pork) or dairy products. In fact,
until recently, the U.S. was a net importer of these products. The
presence of a large domestic market for value-added meat and dairy
products has limited U.S. reliance on developing export markets for its
products. As the U.S. has taken steps to expand export markets for red
meat and dairy products, one major obstacle has been that it remains a
relatively high cost producer of these products compared to other net
exporters, such as New Zealand, Australia, and Latin America, as well
as other more established and government-subsidized exporting
countries, including the European Union and Canada. Increasingly,
however, continued efficiency gains and low-cost feed is making the
U.S. more competitive in world markets for these products, particularly
for red meat. While today's proposed regulations may raise production
costs and potentially reduce production quantities that would otherwise
be available for export, EPA believes that any quantity and price
changes resulting from the proposed requirements will not significantly
alter the competitiveness of U.S. export markets for red meat or dairy
foods.
In contrast, U.S. poultry products account for a controlling share
of world trade and exports account for a sizable and growing share of
annual U.S. production. Given the established presence of the U.S. in
world poultry markets and the relative strength in export demand for
these products, EPA does not expect that the predicted quantity and
price changes resulting from today's proposed regulations will have a
significant impact on the competitiveness of U.S. poultry exports.
As part of its market analysis, EPA evaluated the potential for
changes in traded volumes, such as increases in imports and decreases
in exports, and concluded that volume trade will not be significantly
impacts by today's proposed regulations. EPA estimates that imports
(exports) will increase (decrease) by less than 1 percent compared to
baseline (pre-regulation) levels in each of the commodity sectors. By
sector, the potential change in imports compared to baseline trade
levels ranges from a 0.02 percent increase in broiler imports to a 0.34
percent increase in dairy product imports. The predicted drop in U.S.
exports ranges from a 0.01 percent reduction in turkey exports to a
0.25 percent reduction in hog exports.
H. Cost-Effectiveness Analysis
As part of the process of developing effluent limitations
guidelines and standards, EPA typically conducts a cost-effectiveness
analysis to compare the efficiencies of regulatory options for removing
pollutants and to compare the proposed BAT option to other regulatory
alternatives that were considered by EPA. For the purpose of this
regulatory analysis, EPA defines cost-effectiveness as the incremental
annualized cost of a technology option per incremental pound of
pollutant removed annually by that option. The analyses presented in
this section include a standard cost-effectiveness (C-E) analysis for
toxic pollutants, but also expand upon EPA's more traditional approach
to include an analysis of the cost-effectiveness of removing nutrients
and sediments. This expanded approach is more appropriate for
evaluating the broad range of pollutants in animal manure and
wastewater.
[[Page 3096]]
The American Society of Agricultural Engineers (ASAE) reports that
the constituents present in livestock and poultry manure include:
boron, cadmium, calcium, chlorine, copper, iron, lead, magnesium,
manganese, molybdenum, nickel, potassium, sodium, sulfur, zinc,
nitrogen and phosphorus species, total suspended solids, and pathogens.
Of these pollutants, EPA's standard C-E analysis is suitable to analyze
only the removal of metals and metallic compounds. EPA's standard C-E
analysis does not adequately address removals of nutrients, total
suspended solids, and pathogens. To account for the estimated removals
of nutrients and sediments under the proposed regulations in the
analysis, the Agency has developed an alternative approach to evaluate
the pollutant removal effectiveness relative to cost. At this time, EPA
has not developed an approach that would allow a similar assessment of
pathogen removals. Section 10 of the Economic Analysis describes the
methodology, data, and results of this analysis. (EPA did not estimate
cost-effectiveness for the alternative NPDES Scenarios 5 and 6,
described in Table 10-2.)
For this analysis, EPA has estimated the expected reduction of
select pollutants for each of the regulatory options considered. These
estimates measure the amount of nutrients, sediments, metals and
metallic compounds that originate from animal production areas that
would be removed under a post-regulation scenario (as compared to a
baseline scenario) and not reach U.S. waters. Additional information on
EPA's estimated loadings and removals under post-compliance conditions
is provided in the Development Document and the Benefits Analysis that
support today's rulemaking.
1. Cost-Effectiveness: Priority Pollutants
For this rulemaking, EPA identified a subset of metallic compounds
for use in the C-E
For this rulemaking, EPA identified a subset of metallic compounds
for use in the C-E analysis: zinc, copper cadmium, nickel, arsenic, and
lead. These six compounds are a subset of all the toxic compounds
reported to be present in farm animal manure (varies by animal
species). Therefore, if loading reductions of all priority pollutants
in manure were evaluated, the proposed regulations would likely be even
more cost-effective (i.e., lower cost per pound-equivalent removal).
EPA calculates cost-effectiveness as the incremental annual cost of
a pollution control option per incremental pollutant removal. In C-E
analyses, EPA measures pollutant removals in toxicity normalized units
called ``pounds-equivalent,'' where the pounds-equivalent removed for a
particular pollutant is determined by multiplying the number of pounds
of a pollutant removed by each option by a toxicity weighting factor.
The toxic weighting factors account for the differences in toxicity
among pollutants and are derived using ambient water quality criteria.
The cost-effectiveness value, therefore, represents the unit cost of
removing an additional pound-equivalent of pollutants. EPA calculates
the cost-effectiveness of a regulatory option as the ratio of pre-tax
annualized costs of an option to the annual pounds-equivalent removed
by that option, expressed as the average or incremental cost-
effectiveness for that option. EPA typically presents C-E results in
1981 dollars for comparison purposes with other regulations. EPA uses
these estimated compliance costs to calculate the cost-effectiveness of
the proposed regulations, which include total estimated costs to CAFOs
and offsite recipients of CAFO manure (Section X.E) and costs to the
permitting authority (Section X.G.1). Additional detail on this
approach is provided in Appendix E of the Economic Analysis.
Cost-effectiveness results for select regulatory alternatives are
presented in Table 10-14. Results shown in Table 10-14 include the BAT
Option (Option 3 for beef and dairy subcategories and Option 5 for the
swine and poultry subcategories) and Option 3+5 (both Option 3 and 5
for all subcategories). Options are shown for four CAFO coverage
scenarios, including CAFOs with more than 1,000 AU and CAFOs with more
than 500 AU (two-tier structure), and operations with more than 300 AU,
both under Scenario 4b and as defined under Scenario 3 (three-tier
structure). The differences in CAFO coverage provide an upper and lower
bound of the analysis to roughly depict the alternative NPDES
scenarios. Both incremental and average C-E values are shown.
Incremental cost-effectiveness is the appropriate measure for
comparing one regulatory alternative to another for the same
subcategory. In general, the lower the incremental C-E value, the more
cost-efficient the regulatory option is in removing pollutants, taking
into account their toxicity. For this rulemaking, EPA compares the
cost-effectiveness across alternative NPDES Scenarios to assess the
Agency's decision to define as CAFO operations with more than 500 AU
(two-tier structure) and, alternatively, some operations with more than
300 AU (two-tier structure).
As shown in Table 10-14, the BAT Option is the most cost-efficient
under each of the co-proposed alternatives. Under both the two-tier
(500 AU) and three-tier structures, EPA estimates an incremental cost-
effectiveness value of about $30 per pounds-equivalent (lbs.-eq.)
removed. This compares to the alternative Scenario 4b that have a
higher estimated incremental cost-effectiveness ($76/lbs.-eq., if all
CAFOs with more than 1,000 AU are regulated). (Since the change in
removals between Scenario 3 and Scenario 4b is zero, the incremental C-
E value is ``undefined.'') The BAT Option is also more efficient than
requiring Option 3+5 for all subcategories, which has higher costs but
results in no additional pollutant removals compared to the BAT Option.
This is because the ELG options differ mostly in terms of their
monitoring and sampling requirements but establish no additional
pollutant controls. (Since the change in removals between the BAT
Option and Option 3+5 is zero, the incremental C-E value is undefined.)
The average cost-effectiveness reflects the ``increment'' between
no regulation and regulatory options shown. For the BAT Option, EPA
estimates an average value at $55 per lbs.-eq. to $58 per lbs.-eq.,
depending on the proposed tier structure (Table 10-14). These estimated
average values are low compared to the alternative NPDES scenarios
since the average cost-effectiveness value is higher ($76/lbs.-eq., if
all CAFOs with more than 1,000 AU are regulated; $62/lbs.-eq. for all
CAFOs with more than 300 AU). This average cost is also low compared to
previous ELG rulemakings, where estimated costs have, in some cases,
exceeded $100/lbs.-eq. removed. This information is provided in the
Economic Analysis. In addition, as shown in Table 10-14, average cost-
effectiveness is nearly twice as high under the more stringent Option
3+5 for all subcategories (estimated at more than $100 per lbs.-eq.
removed). Costs, but also removals, are lower under the less stringent
Option 1 (also referred to as the ``nitrogen-based'' option) compared
to other technology options. As described in Section VIII, EPA
determined that this option would not represent the best available
technology and so chose not to propose it. This analysis, along with
additional results for each subcategory and other regulatory
alternatives, is provided in Appendix E on the Economic Analysis.
[[Page 3097]]
Table 10-14.--Cost-Effectiveness Results by Select Option/Scenario ($1981)
----------------------------------------------------------------------------------------------------------------
Total annual
------------------------------------
Option Pound- Average cost- Incremental cost-
equivalents Total cost \2\ effectiveness effectiveness
removed \1\
----------------------------------------------------------------------------------------------------------------
(million pounds) ($ millions) ($/lbs.-eq.)
----------------------------------------------------------------------------------------------------------------
``BAT Option'' ELG Option 3 (Beef/Dairy) and 5 (Swine/Poultry)
----------------------------------------------------------------------------------------------------------------
>1000 AU................................ 5.3 402 76 76
>500 AU ``Two-tier''.................... 8.4 491 58 29
Scenario 3 ``Three-tier''............... 9.4 518 55 28
>300 AU................................. 9.4 579 62 ND
----------------------------------------------------------------------------------------------------------------
ELG Option 3+5 (All Subcategories)
----------------------------------------------------------------------------------------------------------------
>1000 AU................................ 5.3 1,047 197 197
>500 AU ``Two-tier''.................... 8.4 1,212 144 53
Scenario 3 ``Three-tier''............... 9.4 1,251 133 40
>300 AU................................. 9.4 1,353 144 ND
----------------------------------------------------------------------------------------------------------------
Source: USEPA. See Economic Analysis. Option/Scenario definitions provided in Table 10-2. ND=Not Determined.
\1\ Pound-equivalent removals are calculated from removals estimated by EPA's loadings analysis, described in
the Benefits Analysis and the Development Document, adjusting for each pollutants toxic weighting factor (as
described in the Economic Analysis).
\1\ Costs are pre-tax and indexed to 1981 dollars using the Construction Cost Index.
2. Cost-Effectiveness: Nutrients and Sediments
In addition to conducting a standard C-E analysis for select toxic
pollutants (Section X.H.1), EPA also evaluated the cost-effectiveness
of removing select non-conventional and conventional pollutants,
including nitrogen, phosphorus, and sediments. For this analysis,
sediments are used as a proxy for total suspended solids (TSS). This
analysis does not follow the methodological approach of a standard C-E
analysis. Instead, this analysis compares the estimated compliance cost
per pound of pollutant removed to a recognized benchmark, such as EPA's
benchmark for conventional pollutants or other criteria for existing
treatment, as reported in available cost-effectiveness studies.
The research in this area has mostly been conducted at municipal
facilities, including publicly owned treatment works (POTWs) and
wastewater treatment plants (WWTPs). Additional information is
available based on the effectiveness of various nonpoint source
controls and BMPs (Best Management Practices) and other pollutant
control technologies that are commonly used to control runoff from
agricultural lands. A summary of this literature is provided in the
Economic Analysis. Benchmark estimates are used to evaluate the
efficiency of regulatory options in removing a range of pollutants and
to compare the results for each of the co-proposed tier structures to
other regulatory alternatives. This approach also allows for an
assessment of the types of management practices that will be
implemented to comply with the proposed regulations.
Cost-effectiveness results for select regulatory alternatives are
presented in Table 10-15. Results shown in Table 10-15 include the BAT
Option (Option 3 for beef and dairy subcategories and Option 5 for the
swine and poultry subcategories) and Option 3+5 (both Option 3 and 5
for all subcategories). Options are shown for four CAFO coverage
scenarios, including CAFOs with more than 1,000 AU and CAFOs with more
than 500 AU (two-tier structure), and operations with more than 300 AU,
both under Scenario 4b and as defined under Scenario 3 (three-tier
structure). The differences in CAFO coverage provide an upper and lower
bound of the analysis to roughly depict the alternative NPDES
scenarios.
The values in Table 10-15 are average cost-effectiveness values
that reflect the increment between no regulation and the considered
regulatory options. All costs are expressed in pre-tax 1999 dollars.
Estimated compliance costs used to calculate the cost-effectiveness of
the proposed regulations include total estimated costs to CAFOs and
offsite recipients of CAFO manure (Section X.E) and costs to the
permitting authority (Section X.G.1).
Under the co-proposed tier structures, EPA estimates an average
cost-effectiveness of nutrient removal at $4.60 per pound (two-tier) to
$4.30 per pound (three-tier) of nitrogen removed. For phosphorus
removal, removal costs are estimated at $2.10 to $2.20 per pound of
phosphorus removed (Table 10-15). For nitrogen, EPA uses a cost-
effectiveness benchmark established by EPA's Chesapeake Bay Program to
assess the costs to WWTPs to implement BNR (biological nutrient
removal) retrofits. EPA's average benchmark estimate is about $4 per
pound of nitrogen removed at WWTPs in four states (MD, VA, PA, and NY),
based on a range of costs of $0.80 to $5.90 per pound of nitrogen
removed. Using this benchmark, EPA's estimated cost-effectiveness to
remove nitrogen under the proposed regulations exceed EPA's average
benchmark value, but falls within the estimated range of removal costs.
However, EPA's estimated cost-effectiveness to remove phosphorus is
lower than benchmark used for phosphorus of roughly $10 per pound,
reported in the agricultural research as the costs to remove phosphorus
using various nonpoint source controls and management practices.
Available data on phosphorus removal costs for industrial point source
dischargers are much higher (exceed $100 per pound of phosphorus
removed). Based on these results, EPA concludes that these values are
cost-effective.
Costs and removals are nearly twice as high under the more
stringent Option 3+5 for all subcategories (Table 10-15). Costs and
removals are lower under the less stringent Option 1, but EPA chose not
to propose Option 1 because it does not represent the best available
technology (also described in Section VIII of the preamble).
EPA estimates that the co-proposed thresholds (two-tier and three-
tier structures) are more cost-effective compared to alternative AU
thresholds, given slightly lower average cost-effectiveness values
(Table 10-15). EPA
[[Page 3098]]
estimates that the average cost-effectiveness to remove nitrogen is
$5.10 per pound of nitrogen removed at a threshold that would regulate
as CAFOs all operations with more than 1,000 AU; the average cost-
effectiveness is $4.80 per pound of nitrogen removed at the alternative
300 AU threshold (Table 10-15). EPA estimates that the average cost-
effectiveness to remove phosphorus is $2.50 per pound and $2.30 per
pound of phosphorus removed at the 1,000 AU and 300 AU threshold. EPA
also estimates that the co-proposed tier structures are also the most
cost-efficient, compared to other alternatives considered by EPA. These
results, based on incremental cost-effectiveness values, are provided
in the Economic Analysis.
Table 10-15 also shows that the cost to remove sediments under the
BAT Option/Scenario is estimated at $0.003 per pound of sediment
removal (1999 dollars). This estimated per-pound removal cost is low
compared to EPA's POTW benchmark for conventional pollutants. This
benchmark measures the potential costs per pound of TSS and BOD
(biological nutrient demand) removed for an ``average'' POTW (see 51 FR
24982). Indexed to 1999 dollars, EPA's benchmark costs are about $0.70
per pound of TSS and BOD removed. The average cost-effectiveness of
sediment removal under the BAT Option/Scenario is lower than under the
alternative options. Option 1 results across the range of NPDES
Scenarios are estimated at about $0.05 per-pound removal of sediments.
This analysis, along with additional results for each subcategory and
other regulatory alternatives, is provided in Appendix E on the
Economic Analysis.
Table 10-5.--Cost-Effectiveness Results by Select Option/Scenario ($1999)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total cost
Option/Scenario \1\ Sediments Nitrogen Phosphorus Sediments Nitrogen Phosphorus
--------------------------------------------------------------------------------------------------------------------------------------------------------
($m 1999) (million pounds of removals)
(average $ per pound removed
--------------------------------------------------------------------------------------------------------------------------------------------------------
``BAT Option'' ELG Option 3 (Beef/Dairy) and 5 (Swine/Poultry)
--------------------------------------------------------------------------------------------------------------------------------------------------------
>1000 AU..................................................... $688 209050 136 280 $0.003 $5.1 $2.5
>500 AU ``Two-tier''......................................... 840 299708 182 377 0.003 4.6 2.2
>300 AU ``Three-tier''....................................... 887 335456 206 425 0.003 4.3 2.1
>300 AU...................................................... 991 335456 206 425 0.003 4.8 2.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
ELG Option 3+5 (All subcategories
--------------------------------------------------------------------------------------------------------------------------------------------------------
>1000 AU..................................................... 1,791 209050 136 280 0.009 13.2 6.4
>500 AU ``Two-tier''......................................... 2,074 299708 182 377 0.007 11.4 5.5
>300 AU ``Three-tier''....................................... 2,141 335456 206 425 0.006 10.4 5.0
>300 AU...................................................... 2,316 335456 206 425 0.007 11.2 5.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USEPA. See Economic Analysis. Option/Scenario definitions provided in Table 10-2. ND=Not Determined.
\1\ Costs are pre-tax.
I. Cost-Benefit Analysis
EPA estimated and compared the costs and benefits attributed to the
proposed regulations. The cost and benefit categories that the Agency
was able to quantify and monetize for the proposed regulations are
shown in Table 10-16.
Total social costs of the proposed regulations range from $847
million to $949 million annually, depending on the co-proposed approach
(Table 10-16). These costs include compliance costs to industry, costs
to recipients of CAFO manure, and administrative costs to States and
Federal governments.
Under the two-tier structure, EPA projects that total compliance
cost to industry is $831 million per year (pre-tax)/$572 million (post-
tax). By comparison, under the three-tier structure, EPA estimates that
the cost to industry is $930 million per year (pre-tax)/$658 million
(post-tax). Costs to industry include annualized capital costs,
operating and maintenance costs, start-up and recurring costs, and also
recordkeeping costs. Estimated costs cover four broad categories:
nutrient management planning, facility upgrades, land application, and
technologies for balancing on-farm nutrients. In addition, under the
two-tier structure, EPA estimates that the cost to off-site recipients
of CAFO manure is $10 million per year. The administrative cost to
State and Federal governments to implement the permit program is $6
million per year. Under the three-tier structure, the annual cost to
off-site recipients of manure is $11 million and State and Federal
administrative costs are $8 million per year.
EPA estimates that the monetized benefits of the proposed
regulations range from $146 million to $182 million annually, depending
on the co-proposed approach (Table 10-16). Annual benefits are
estimated to range from $146 million to $165 million under the two-tier
structure; under the three-tier structure, estimated benefits range
from $163 million to $182 million annually. EPA was only able to
monetize (i.e., place a dollar value on) a small subset of the range of
potential benefits that may accrue under the proposed regulations. Data
and methodological limitations restricted the number of benefits
categories that EPA was able to reasonably quantify and monetize. The
proposed regulations benefits are primarily in the areas of reduced
health risks and improved water quality, as shown in Table 10-16. In
addition to these monetized benefits, EPA expects that additional
benefits will accrue under the regulations, including reduced drinking
water treatment costs, reduced odor and air emissions, improved water
quality in estuaries, and avoided loss in property value near CAFOs,
among other benefits. These benefits are described in more detail in
the Benefits Analysis and other supporting documentation provided in
the record.
[[Page 3099]]
Table 10-16.--Total Annual Social Costs and Monetized Benefits, $1999
[In millions of dollars]
------------------------------------------------------------------------
``Two-Tier''
structure Three-Tier
Total social costs (500 AU structure
threshold) (Scenario 3)
------------------------------------------------------------------------
Industry Compliance Costs (pre-tax)..... 830.7 930.4
NPDES Permitting Costs.................. 6.2 7.7
Offsite Recipients of CAFO Manure....... 9.6 11.3
Total Social Costs.................. 846.5 949.4
------------------------------------------------------------------------
Monetized Benefits
------------------------------------------------------------------------
Improved surface water quality.......... 108.5 127.1
Reduced shellfish bed closures.......... 0.2-2.4 0.2-2.7
Reduced fish kills...................... 0.2-0.4 0.2-0.4
Improved water quality in private wells. 36.6-53.9 35.4-52.1
-------------------------------
Total Monetized Benefits.............. 145.5-165.1 163.0-182.3
------------------------------------------------------------------------
J. Initial Regulatory Flexibility Analysis
Pursuant to Section 603 of the Regulatory Flexibility Act (RFA) as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), the Agency prepared an Initial Regulatory Flexibility
Analysis (IRFA) to assess the impacts on small livestock and poultry
feeding operations. EPA's IRFA and other supplemental economic
analyses, as required under Section 607 of the RFA, are provided in
Section 9 of the Economic Analysis. This section summarizes the
estimated number of small entities to which the rule will apply and
quantitatively describes the effects of the proposed regulations. Other
information on EPA's approach for estimating the number of small
businesses in these sectors is provided in the Final Report of the
Small Business Advocacy Review Panel on EPA's Planned Proposed Rule on
National Pollutant Discharge Elimination System (NPDES) and Effluent
Limitations Guideline (ELG) Regulations for Concentrated Animal Feeding
Operations (referred to as the ``Panel Report''). The Panel Report is
available in the rulemaking record, as well as online at http://www.epa.gov/sbrefa. A summary of the Small Business Advocacy Review
(SBAR) Panel proceedings and recommendations is provided in Section
XII.G of this preamble. Section XIII.B of this preamble summarizes
other requirements to comply with the RFA.
1. Definition of Small Business
The Small Business Administration (SBA) defines a ``small
business'' in the livestock and poultry sectors in terms of average
annual receipts (or gross revenue). SBA size standards for these
industries define a ``small business'' as one with average annual
revenues over a 3-year period of less than $0.5 million annually for
dairy, hog, broiler, and turkey operations; $1.5 million for beef
feedlots; and $9.0 million for egg operations. In today's rule, EPA is
proposing to define a ``small'' egg laying operation for purposes of
its regulatory flexibility assessments as an operation that generates
less than $1.5 million in annual revenue. Because this definition of
small business is not the definition established under the Regulatory
Flexibility Act (RFA), EPA is specifically seeking comment on the use
of this alternative definition as part of today's notice of the
proposed rulemaking (see Section XIII.B and Section XIV). EPA also has
consulted with the SBA Chief Counsel for Advocacy on the use of this
alternative definition. EPA believes this definition better reflects
the agricultural community's sense of what constitutes a small business
and more closely aligns with the small business definitions codified by
SBA for other animal operations. A summary of EPA's rationale and
supporting analyses pertaining to this alternative definition is
provided in the record and in the Economic Analysis.
2. Number of Small Businesses Affected under the Proposed Regulations
Table 10-17 shows EPA's estimates of the number of small businesses
in the livestock and poultry sectors and the number of small businesses
that are expected to be affected by the proposed regulations. The
approach used to derive these estimates is described in more detail in
Section 9 of the Economic Analysis and also in Sections 4 and 5 of the
Panel Report. EPA presented this and other alternative approaches
during the SBAR Panel proceedings, as discussed in Section XII.G.2.a of
this document. EPA is requesting public comment on this approach.
EPA uses three steps to determine the number of small businesses
that may be affected by the proposed regulations. First, EPA identifies
small businesses in these sectors by equating SBA's annual revenue
definition with the number of animals at an operation. Second, EPA
estimates the total number of small businesses in these sectors using
farm size distribution data from USDA. Third, based on the regulatory
thresholds being proposed, EPA estimates the number of small businesses
that would be subject to the proposed requirements. These steps are
summarized below.
In the absence of farm or firm level revenue data, EPA identifies
small businesses in these sectors by equating SBA's annual revenue
definitions of ``small business'' to the number of animals at these
operations (step 1). This step produces a threshold based on the number
of animals that EPA uses to define small livestock and poultry
operations and reflects the average farm inventory (number of animals)
that would be expected at an operation with annual revenues that define
a small business. This initial conversion is necessary because USDA
collects data by farm size, not by business revenue. With the exception
of egg laying operations, EPA uses SBA's small business definition to
equate the revenue threshold with the number of animals raised on-site
at an equivalent small business in each sector. For egg laying
operations, EPA uses its alternative revenue definition of small
business.
EPA estimates the number of animals at an operation to match SBA's
[[Page 3100]]
definitions using SBA's annual revenue size standard (expressed as
annual revenue per entity) and USDA-reported farm revenue data that are
scaled on a per-animal basis (expressed as annual revenue per inventory
animal for an average facility). Financial data used for this
calculation are from USDA's 1997 ARMS database. This approach and the
data used for this calculation are outlined in Section 9 of the
Economic Analysis. The resultant size threshold represents an average
animal inventory for a small business. For the purpose of conducting
its IRFA for this rulemaking, EPA is evaluating ``small business'' for
these sectors as an operation that houses or confines less than: 1,400
fed beef cattle; 200 mature dairy cattle; 1,400 market hogs; 25,000
turkeys; 61,000 layers; or 260,000 broilers (Table 10-17).
EPA then estimates the total number of small businesses in these
sectors using facility size distribution data from USDA (step 2). Using
the threshold sizes identified for small businesses, identified above,
EPA matches these thresholds with the number of operations associated
with those size thresholds to estimate the total number of small animal
confinement operations in these sectors. Finally, based on the
regulatory thresholds being proposed--e.g., operations with more than
500 AU are CAFOs--EPA estimates the number of small businesses that
will be subject to the proposed requirements (step 3). The 1997 Census
constitutes the primary data source that EPA uses to match the small
business thresholds (e.g., a small dairy operation has less than 200
milk cows) to the number of facilities that match that size group
(e.g., the number of dairies with less than 200 cows, as reported by
USDA). EPA also used other supplemental data, including other published
USDA data and information from industry and the state extension
agencies.
Table 10-17.--Number of Small CAFOs That May Be Affected by the Proposed Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annual
($million) Revenue per No. of animals Estimated Two-Tier Three-Tier
Sector revenue \1\ head \2\ (b) (Avg. U.S.) number of ``Small'' ``Small''
(a) (c=a/b) small AFOs CAFOs CAFOs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cattle \3\.............................................. 1.5 1,060 1,400 106,450 2,280 2,600
Dairy................................................... 0.5 2,573 200 109,740 50 50
Hogs.................................................... 0.5 363 1,400 107,880 300 300
Broilers................................................ 0.5 2 260,000 34,530 9,470 13,410
Egg Layers.............................................. 9.0 25 365,000 ND ND ND
1.5 .............. 61,000 73,710 200 590
Turkeys................................................. 0.5 20 25,000 12,320 0 500
All AFOs \4\............................................ NA NA NA 355,650 10,550 14,630
--------------------------------------------------------------------------------------------------------------------------------------------------------
NA=Not Applicable. ND = Not Determined. ``AFOs'' have confined animals on-site. ``CAFOs'' are assumed to have more than 500 AU.
\1\ SBA Size Standards by SIC industry (13 CFR Part 121). EPA assumes an alternative definition of $1.5 million in annual revenues for egg layers.
\2\ Average revenue per head across all operations for each sector derived from data obtained from USDA's 1997 ARMS data.
\3\ Includes fed cattle, veal and heifers.
\4\ Total adjusts for operations with mixed animal types and includes designated CAFOs (expressed over a 10-year period). See Section VI.1 of this
document for estimates of the total number of AFOs (including operations that are not defined as small businesses by SBA).
EPA estimates that there were approximately 376,000 animal
confinement facilities in 1997 (Table 6-1). Most of these (95 percent)
are small businesses, as defined by this approach (Table 10-17).
However, not all of these operations will be affected by the proposed
regulations.
For this analysis, EPA has identified the number of CAFOs that are
also small businesses that would be subject to today's proposal. Under
the two-tier structure, EPA estimates that 10,550 operations that will
be subject to the proposed requirements that are small businesses.
Under the three-tier structure, an estimated 14,630 affected operations
are small businesses. See Table 10-17. The difference in the number of
affected small businesses is among poultry producers, particularly
broiler operations.
Under the two-tier structure, EPA estimates that there are 10,050
operations with more than 500 AU that may be defined as CAFOs that also
meet the ``small business'' definition. Under the three-tier structure,
there are 14,530 operations with more than 300 AU that may be defined
as CAFOs that are small businesses that meet the proposed risk-based
conditions (described in Section VII). These totals adjusts for the
number of operations with more than a single animal type. Under both
co-proposed alternatives, most operations are in the broiler and cattle
sectors. By broad facility size group, an estimated 4,060 operations
have more than 1,000 AU, most of which are broiler operations (about 77
percent) and cattle operations (18 percent), including fed cattle,
veal, and heifer operations. An estimated 6,490 operations have between
500 and 1,000 AU. The number of operations that would be regulated with
between 300 and 1,000 AU is estimated at 10,570 operations (accounting
for mixed operations).
Due to continued consolidation and facility closure since 1997,
EPA's estimates may overstate the actual number of small businesses in
these sectors. In addition, ongoing trends are causing some existing
small and medium size operations to expand their inventories to achieve
scale economies. Some of the CAFOs considered here as small businesses
may no longer be counted as small businesses because they now have
higher revenues. Furthermore, some CAFOs may be owned by a larger,
vertically integrated firm, and may not be a small business. EPA
expects that there are few such operations, but does not have data or
information to reliably estimate the number of CAFOs that meet this
description.
Under the two-tier structure, EPA estimates also include an
additional 500 operations with fewer than 500 AU that may be designated
as CAFOs under the proposed regulations over a 10-year period. See
Section VI. Of these, 330 operations meet the small business
definition: 50 dairies, 200 hog, 40 beef, 20 broiler, and 20 egg laying
operations. Under the three-tier structure, EPA estimates that 100
operations with fewer than 300 AU may be designated over ten years,
including 50 dairies and 50 hog operations, all of which are small
businesses. As these facilities are designated, EPA did not adjust this
total to reflect possible mixed animal
[[Page 3101]]
operations. Each of these operations are small businesses.
3. Estimated Economic Impacts to Small CAFOs under the Proposed
Regulations
EPA conducted a preliminary assessment of the potential impacts to
small CAFO businesses based on the results of a costs-to-sales test.
This screen test indicated the need for additional analysis to
characterize the nature and extent of impacts on small entities. The
results of this screening test indicate that about 80 percent (about
9,600) of the estimated number of small businesses directly subject to
the rule as CAFOs may incur costs in excess of three percent of sales
(evaluated for all operations with more than 500 AU). Compared to the
total number of all small animal confinement facilities estimated by
EPA (356,000 facilities), operations that are estimated to incur costs
in excess of three percent of sales comprise less than two percent of
all small businesses in these sectors. The results of this analysis are
provided in Section 9 of the Economic Analysis.
Based on the results of this initial assessment, EPA projected that
it would likely not certify that the proposal, if promulgated, would
not impose a significant economic impact on a substantial number of
entities. Therefore, EPA convened a Small Business Advocacy Review
Panel and prepared an Initial Regulatory Flexibility Analysis (IRFA)
pursuant to Sections 609(b) and 603 of the RFA, respectively. Section
XII.G provides more information on EPA's small business outreach and
the Panel activities during the development of this rulemaking.
The results of EPA's assessment of the financial impacts of the
proposed rule on small entities are as follows. To further examine
small businesses effects, EPA used the same approach as that used to
evaluate the impact to CAFOs under the proposed regulations described
in Section X.D.1. Economic achievability is determined by applying the
proposed criteria described in Section X.F.1. These criteria include a
sales test and also analysis of post-compliance cash flow and debt-to-
asset ratio for an average model CAFO.
Accordingly, if an average model facility is determined to incur
economic impacts under regulation that are regarded as ``Affordable''
or ``Moderate,'' then the proposed regulations are considered
economically achievable. (``Moderate'' impacts are not expected to
result in closure and are considered to be economically achievable by
EPA.) If an average operation is determined to incur ``Stress,'' then
the proposed regulations are not considered to be economically
achievable. ``Affordable'' and ``Moderate'' impacts are associated with
positive post-compliance cash flow over a 10-year period and a debt-to-
asset ratio not exceeding 40 percent, in conjunction with a sales test
result that shows that compliance costs are less than 5 percent of
sales (``Affordable'') or between 5 and 10 percent (``Moderate'').
``Stress'' impacts are associated with negative cash flow or if the
post-compliance debt-to-asset ratio exceeds 40 percent, or sales test
results that show costs equal to or exceeding 10 percent of sales. More
detail on this classification scheme is provided in Section X.F.1.
EPA is proposing that the proposed regulations are economically
achievable by small businesses in the livestock and poultry sectors.
The results of this analysis are presented in Tables 10-18 and 10-19.
As defined for this analysis, EPA's analysis indicates that the
proposed requirements are economically achievable to all affected small
businesses in the beef, veal, heifer, dairy, hog, and egg laying
sectors (``Affordable'' and also ``Moderate''). Moderate impacts may be
incurred by small businesses in some sectors, but these impacts are not
associated with operational change at the CAFO. Under the two-tier
structure, EPA expects that there are no small businesses in the turkey
sector, as defined for this analysis. Under the three-tier structure,
EPA expects that there are an estimated 500 small businesses in the
turkey sector (operations with 16,500 to 25,000 birds) (Table 10-17).
EPA's IRFA analysis indicates that the proposed requirements will
not result in financial stress to any affected small businesses in the
veal, heifer (two-tier only), hog, dairy, egg laying, and turkey
sectors. In the beef, heifer (three-tier only), and broiler sectors,
however, EPA's analysis indicates that proposed regulations could
result in financial stress to some small businesses, making these
businesses vulnerable to closure. Overall, these operations comprise
about 2 percent of all affected small CAFO businesses. For the two-tier
structure, EPA estimates that 10 small beef operations and 150 small
broiler operations will experience financial stress. For the three-tier
structure, EPA estimates that 40 small beef and heifer operations and
280 small broiler operations will experience financial stress. Small
broiler facilities with stress impacts are larger operations with more
than 1,000 AU under both tier structures. Small cattle and heifer
operations with stress impacts are those that have a ground water link
to surface water. This analysis is conducted assuming that no costs are
passed through between the CAFO and processor segments of these
industries. Based on the results of this analysis, EPA is proposing
that the proposed regulations are economically achievable to small
businesses in these sectors.
EPA believes that the small business impacts presented are
overstated for reasons summarized below. As noted in the Panel Report,
EPA believes that the number of small broiler operations is
overestimated. In the absence of business level revenue data, EPA
estimated the number of ``small businesses'' using the approach
described in Sections X.J.1 and X.J.2. Using this approach, virtually
all (>99.9 percent) broiler operations are considered ``small''
businesses. This categorization may not accurately portray actual small
operations in this sector since it classifies a 10-house broiler
operation with 260,000 birds as a small business. Information from
industry sources suggests that a two-house broiler operation with
roughly 50,000 birds is more appropriately characterized as a small
business in this sector. This information is available in the
rulemaking record. Therefore, it is likely that the number of small
broiler operations may reflect a number of medium and large size
broiler operations being considered as small entities. (During the
development of the rulemaking, EPA did consult with SBA on the use of
an alternative definition for small businesses in all affected sectors
based on animal inventory at an operation. Following discussions with
SBA, EPA decided not to use this alternative definition. This
information is provided in the record.)
EPA believes that the use of a costs-to-sales comparison is a crude
measure of impacts on small business in sectors where production
contracting is commonly used, such as in the broiler sector (but also
in the turkey, egg, and hog sectors, though to a lesser extent). As
documented in the Economic Analysis, lower reported operating revenues
in the broiler sector reflect the predominance of contract growers in
this sector. Contract growers receive a pre-negotiated contract price
that is lower than the USDA-reported producer price, thus contributing
to lower gross revenues at these operations. Lower producer prices
among contract growers is often offset by lower overall production
costs at these operations since the affiliated processor firm pays for
a substantial portion of the grower's annual variable cash expenses.
Inputs supplied by the integrator may include
[[Page 3102]]
feeder pigs or chicks, feed, veterinary services and medicines,
technical support, and transportation of animals. These variable cash
costs comprise a large component of annual operating costs, averaging
more than 70 percent of total variable and fixed costs at livestock and
poultry operations. The contract grower also faces reduced risk because
the integrator guarantees the grower a fixed output price. Because
production costs at a contract grower operation are lower than at an
independently owned operation, a profit test (costs-to-profit
comparison) is a more accurate measure of impacts at grower operations.
However, financial data are not available that differentiate between
contract grower and independent operations.
EPA's analysis also does not consider a range of potential cost
offsets available to most operations. One source of potential cost
offset is cost share and technical assistance available to operators
for on-site improvements that are available from various state and
federal programs, such as the Environmental Quality Incentives Program
(EQIP) administered by USDA. These programs specifically target smaller
farming operations. Another potential source of cost offset is manure
sales, particularly of relatively higher value dry poultry litter. More
information on how these potential sources of cost offset would reduce
the economic impacts to small operations is described in Section X.F.1
in this document and also in the Economic Analysis. EPA's analysis also
does not account for eventual cost passthrough of estimated compliance
costs through the marketing chain under longer run market adjustment.
Finally, this analysis does not take into account certain non-economic
factors that may influence a CAFO's decision to weather the boom and
bust cycles that are commonplace in agricultural markets. These other
industry-specific factors are discussed in more detail throughout the
Economic Analysis.
EPA expects that the proposed regulations will benefit the smallest
businesses in these sectors since it may create a comparative advantage
for smaller operations (less than 500 AU), especially those operations
which are not subject to the regulations. Except for the few AFOs which
are designated as CAFOs, these operations will not incur costs
associated with the proposed requirements but could benefit from
eventual higher producer prices as these markets adjust to higher
production costs in the longer term.
As detailed in Sections XII.G and XIII.B of this document, EPA
convened a Small Business Advocacy Review Panel during the development
of this rule. As described in the Panel Report, EPA considered certain
regulatory alternatives to provide relief for small businesses. Some of
these alternatives are discussed in other sections of this document,
including Section VII and Section VIII. These alternative options are
summarized in the following section and are described in more detail in
Section 9 of the Economic Analysis.
Table 10-18.--Results of EPA's Small Business Analysis Under the BAT Option/Scenario 4a
--------------------------------------------------------------------------------------------------------------------------------------------------------
Zero cost passthrough
-----------------------------------------------------------------------------
Sector Number of (Number of operations (% Affected operations)
small CAFOs -----------------------------------------------------------------------------
Affordable Moderate Stress Affordable Moderate Stress
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fed Cattle................................................... 1,390 1,130 250 10 81 18 1
Veal......................................................... 90 90 0 0 100 0 0
Heifer....................................................... 800 680 120 0 85 15 0
Dairy........................................................ 50 40 10 0 80 20 0
Hogs......................................................... 300 300 0 0 100 0 0
Broilers..................................................... 9,470 1,860 7,460 150 20 79 2
Layers....................................................... 200 200 0 0 100 0 0
Turkeys...................................................... 0 0 0 0 NA NA NA
------------------------------------------------------------------------------------------
Total.................................................... 10,550 4,300 7,840 160 41 74 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USEPA. Impact estimates shown include impacts to designated operations. Option/Scenario definitions provided in Table 10-2. Category definitions
(``Affordable,'' ``Moderate'' and ``Stress'') are provided in Section X.F.1. Numbers may not add due to rounding. NA = Not Applicable.
\1\ ``Total'' does not adjust for operations with mixed animal types, for comparison purposes, to avoid understating costs at operations with more than
one animal type that may incur costs to comply with the proposed requirements for each type of animal that is raised on-site. The number of CAFOs
shown includes expected defined CAFOs only and excludes designated facilities.
Table 10-19.--Results of EPA's Small Business Analysis Under the BAT Option/Scenario 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Zero cost passthrough
-----------------------------------------------------------------------------
Sector Number of (Number of operations (% Affected operations)
small CAFOs -----------------------------------------------------------------------------
Affordable Moderate Stress Affordable Moderate Stress
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fed Cattle................................................... 1,490 1,100 380 10 74 26 1
Veal......................................................... 140 140 0 0 100 0 0
Heifer....................................................... 980 800 150 30 82 15 3
Dairy........................................................ 50 40 10 0 80 20 0
Hogs......................................................... 300 300 0 0 100 0 0
Broilers..................................................... 13,410 1,910 11,220 280 14 84 2
Layers....................................................... 590 590 0 0 100 0 0
Turkeys...................................................... 500 460 40 0 92 8 0
------------------------------------------------------------------------------------------
[[Page 3103]]
Total.................................................... 14,630 5,340 11,800 320 37 81 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USEPA. Impact estimates shown include impacts to designated operations. Option/Scenario definitions provided in Table 10-2. Category definitions
(``Affordable,'' ``Moderate'' and ``Stress'') are provided in Section X.F.1. Numbers may not add due to rounding. NA = Not Applicable.
\1\ ``Total'' does not adjust for operations with mixed animal types, for comparison purposes, to avoid understating costs at operations with more than
one animal type that may incur costs to comply with the proposed requirements for each type of animal that is raised on-site. The number of CAFOs
shown includes expected defined CAFOs only and excludes designated facilities.
4. Regulatory Relief to Small Livestock and Poultry Businesses
EPA proposes to focus the regulatory revisions in this proposal on
the largest operations, which present the greatest risk of causing
environmental harm, and in so doing, has minimized the effects of the
proposed regulations on small livestock and poultry operations. First,
EPA is proposing to establish a two-tier structure with a 500 AU
threshold. Unlike the current regulations, under which some operations
with 300 to 500 AU are defined as CAFOs, operations of this size under
the revised regulations would be CAFOs only by designation. Second, EPA
is proposing to eliminate the ``mixed'' animal calculation for
operations with more than a single animal type for determining which
AFOs are CAFOs. Third, EPA is proposing to raise the size standard for
defining egg laying operations as CAFOs.
EPA estimates that under the co-proposed alternatives, between 64
percent (two-tier) and 72 percent (three-tier) of all CAFO manure would
be covered by the regulation. (See Section IV.A of this preamble.)
Under the two-tier structure, the inclusion of all operations with more
than 300 AU instead of operations with more than 500 AU, the CAFO
definition would result in 13,800 additional operations being
regulated, along with an additional 8 percent of all manure. An
estimated 80 percent of these additional 13,800 CAFOs are small
businesses (about 10,870 CAFOs). EPA estimates that by not extending
the regulatory definition to operations with between 300 and 500 AU,
these 10,870 small businesses will not be defined as CAFOs and will
therefore not be subject to the proposed regulations. The additional
costs of extending the regulations to these small CAFO businesses is
estimated at almost $150 million across all sectors. The difference in
costs between the two-tier and the three-tier structures may be
approximated by comparing the estimated costs for these regulatory
options, which are shown in Table 10-5. Also, under the two-tier
structure, EPA is proposing to raise the size standard for defining egg
laying operations as CAFOs. This alternative would remove from the CAFO
definition egg operations with between 30,000 and 50,000 laying hens
(or 75,000 hens) that under the current rules are defined as CAFOs, if
they utilize a liquid manure management system.
In addition, under both co-proposed alternatives, EPA is proposing
to exclude mixed operations with more than a single animal type. The
Agency determined that the inclusion of these operations would
disproportionately burden small businesses while resulting in little
additional environmental benefit. Since most mixed operations tend to
be smaller in size, this exclusion represents important accommodations
for small businesses. If certain of these smaller operations are
determined to be discharging to waters of the U.S., States can later
designate them as CAFOs and subject them to the regulations.
XI. What are the Environmental Benefits of the Proposed Revisions?
A. Non-Water Quality Environmental Impacts
The regulatory options developed for this proposed rule are
intended to ensure the protection of surface water in and around animal
feeding operations. However, one or more of the requirements included
in these options may also have an impact on the amount and form of
compounds released to air, as well as the energy that is required to
operate the feedlot. Under sections 304(b) and 306 of the CWA, EPA is
to consider the non-water quality environmental impacts (NWQI) when
setting effluent limitations guidelines and standards. This section
describes the methodology EPA used to estimate the NWQI for each of the
options considered for this proposed rule. These non-water quality
environmental impacts include:
Air emissions from the feedlot operation, including animal
housing and animal waste storage and treatment areas;
Air emissions from land application activities;
Air emissions from vehicles, including the off-site
transport of waste and on-site composting operations; and
Energy impacts from land application activities and the
use of digesters.
For each regulatory option, EPA estimated the potential for new
water pollution control requirements to cause cross-media pollutant
transfers. Consistent with the approach used to estimate compliance
costs, EPA used a model-facility approach to estimate NWQIs and to
define baseline conditions. Industry-level non-water quality impacts
for each animal sector (i.e., beef, dairy, swine, and poultry) were
then estimated by multiplying the model farm impacts by the number of
facilities represented by that model farm. These results are presented
in Tables 11-1 through 11-4 for the population of operations defined as
CAFOs under the two-tier structure (operations with more than 500 AU)
and Tables 11-5 through 11-8 for the population defined as CAFOs under
the three tier structure. For details on the derivation of the model
farms, including definitions of geographic location, method of
determining model farm populations, and data on waste generation, see
the Technical Development Document.
1. Sources of Air Emissions
Animal feeding operations generate various types of animal wastes,
including manure (feces and urine), waste feed, water, bedding, dust,
and wastewater. Air emissions are generated from the decomposition of
these wastes from the point of generation through the management and
treatment of these wastes on site. The rate of generation of these
emissions varies based on a number of operational variables (e.g.,
animal species, type of housing, waste
[[Page 3104]]
management system), as well as weather conditions (temperature,
humidity, wind, time of release). A fraction of the air emissions from
AFOs are subsequently redeposited on land or in surface waters. This
atmospheric redeposition in turn can be a source for water quality
impacts.
a. Air Emissions from the Feedlot Operation. Animal housing and
manure management systems can be a significant source of air emissions.
Little data exist on these releases to allow a complete analysis of all
possible compounds. For this proposed rule, EPA has focused on the
release of greenhouse gases (methane, carbon dioxide, and nitrous
oxide), ammonia, and certain criteria air pollutants (carbon monoxide,
nitrogen oxides, volatile organic compounds, and particulate matter).
i. Greenhouse Gas Emissions from Manure Management Systems. Manure
management systems, including animal housing, produce methane
(CH4), carbon dioxide (CO2), and nitrous oxide
(N2O) emissions. Methane and carbon dioxide are produced by
the anaerobic decomposition of manure. Nitrous oxide is produced as
part of the agricultural nitrogen cycle through the denitrification of
the organic nitrogen in livestock manure and urine. Greenhouse gas
emissions for methane and nitrous oxide were estimated for this
proposed rule based on methodologies previously used by EPA's Office of
Air and Radiation. Emission estimates for carbon dioxide are based on
the relationship of carbon dioxide generation compared to methane
generation.
Methane. Methane production is directly related to the quantity of
waste, the type of waste management system used, and the temperature
and moisture of the waste. Some of the regulatory options evaluated for
animal feeding operations are based on the use of different waste
management systems which may increase or decrease methane emissions
from animal operations. In general, manure that is handled as a liquid
or in anaerobic management systems tends to produce more methane, while
manure that is handled as a solid or in aerobic management systems
produces little methane. The methane producing capacity of animal waste
is related to the maximum quantity of methane that can be produced per
kilogram of volatile solids. Values for the methane producing capacity
are available from literature and are based on animal diet. EPA
estimated methane emissions for each type of waste management system
included in the cost models. These values vary by animal type,
geographic region (the methane conversion factor is a function of the
mean ambient temperature), and type of waste management system (e.g.,
anaerobic lagoon, composting, drylot, stacked solids, or runoff storage
pond).
Methane is also produced from the digestive processes of ruminant
livestock due to enteric fermentation. Certain animal populations, such
as beef cattle on feedlots, tend to produce more methane because of
higher energy diets that produce manure with a high methane-producing
capacity. However, since the proposed regulatory options do not impose
requirements forcing CAFOs to use specific feeding strategies,
potential impacts on enteric fermentation methane emissions are
speculative and were not estimated.
Carbon Dioxide. Carbon dioxide is a naturally occurring greenhouse
gas and is continually emitted to and removed from the atmosphere.
Certain human activities, such as fossil fuel burning, cause additional
quantities of carbon dioxide to be emitted to the atmosphere. In the
case of feedlot operations, the anaerobic degradation of manure results
not only in methane emissions, but also carbon dioxide emissions. These
carbon dioxide emissions due to anaerobic degradation were estimated
for each regulatory option. In addition, under Option 6, large dairies
and swine operations would install and operate anaerobic digestion
systems with energy recovery units. The biogas produced in the digester
is burned in an engine to recover energy. EPA's emission estimates for
Option 6 include the carbon dioxide produced during this combustion
process.
Nitrous Oxide. The emission of nitrous oxide from manure management
systems is based on the nitrogen content of the manure, as well as the
length of time the manure is stored and the specific type of system
used. In general, manure that is handled as a liquid tends to produce
less nitrous oxide than manure that is handled as a solid. Some of the
regulatory options evaluated for animal feeding operations are based on
the use of waste management systems which may increase nitrous oxide
emissions from animal operations. Values for total Kjeldahl nitrogen
(TKN), a measure of organic nitrogen plus ammonia nitrogen, vary by
animal type and are typically available in the literature for animal
waste. EPA estimated nitrous oxide emissions by adjusting these
literature values with an emission factor that accounts for the varying
degree of nitrous oxide production, based on the type of manure
management system.
ii. Ammonia Emissions and Other Nitrogen Losses from Housing and
Manure Management Systems. Much of the nitrogen emitted from animal
feeding operations is in the form of ammonia. Ammonia is an important
component responsible for acidification and overnutrification of the
environment. The loss of ammonia occurs at both the point of generation
of manure, typically from urine, as well as during the storage and
treatment of animal waste. As the pH of a system rises above 7,
nitrogen in the form of ammonium is transformed into ammonia. A number
of variables affect the volatilization of ammonia from animal waste,
including the method in which the waste is stored, transported, and
treated on site and the environmental conditions present (e.g.,
temperature, pH, wind).
Animals at the feedlot operation may be housed in a number of
different ways that have an impact on the type and amount of nitrogen
emissions that will occur. Some animals are housed in traditional
confined housing (e.g., tie stall barns, freestall barns), while others
are housed in outdoor areas (e.g., drylots, paddocks). Studies have
shown that the type of housing used has a great effect on the emission
of ammonia. Management of waste within the housing area also affects
emissions (e.g., litter system, deep pit, freestall).
Anaerobic lagoons and waste storage ponds are a major component of
the waste management systems. EPA has estimated volatilization of total
nitrogen and ammonia from lagoons and ponds based on emission factors
published in the scientific literature.
iii. Criteria Air Emissions from Energy Recovery Systems. Option 6
requires the implementation of anaerobic digestion systems with energy
recovery for large dairy and swine operations. The operation of the
digestion system greatly reduces the emission of methane through the
capture of the biogas. However, the use of the biogas in an energy
recovery system does generate certain criteria air pollutants when
burned for fuel. Literature values for emission factors for carbon
monoxide (CO), oxides of nitrogen ( NOX), and volatile
organic compounds (VOCs) were used to estimate releases of criteria air
pollutants.
b. Air Emissions from Land Application Activities. Animal feeding
operations generate air emissions from the land application of animal
waste on cropland. Air emissions are primarily generated from the
volatilization of ammonia at the point the material is applied to land.
Additional emissions of nitrous oxide are liberated from
[[Page 3105]]
agricultural soils when nitrogen applied to the soil undergoes
nitrification and denitrification. Loss through denitrification is
dependent on the oxygen levels of the soil to which manure is applied.
Low oxygen levels, resulting from wet, compacted, or warm soil,
increase the amount of nitrate-nitrogen released to the air as nitrogen
gas or nitrous oxide. The analysis of air emissions from land
application activities for this proposed rule focused on the
volatilization of nitrogen as ammonia because the emission of other
constituents is expected to be less significant.
The amount of nitrogen released to the environment from the
application of animal waste is affected by the rate and method in which
it is applied, the quantity of material applied, and site-specific
factors such as air temperature, wind speed, and soil pH. There is
insufficient data to quantify the effect of site-specific factors.
Since regulatory options in this proposed rule do not dictate
particular application methods, EPA assumed that the application
methods used by animal feeding operations will not significantly change
from baseline.
Because EPA expects application methods to remain stable, EPA
assumed that only the quantity of waste applied to cropland will
change. On-site nitrogen volatilization will decrease as the quantity
of waste applied to cropland decreases. The reductions of nitrogen
volatilization will be the result of reductions in the total amount of
manure applied on site. However, when both on-site and off-site
nitrogen volatilization are considered, total nitrogen volatilization
from manure is expected to remain constant. The movement of waste off-
site changes the location of the nitrogen releases but not the quantity
released. On-site, however, the volatilization rate will decrease,
reflecting the decrease in the quantity of applied waste.
EPA used the same assumptions that were used to estimate compliance
costs for land application of animal waste in order to estimate the
change in air emissions from the application of nitrogen under baseline
conditions and for each regulatory option. The cost methodology defines
three types of animal feeding operations: Category 1 facilities
currently have sufficient land to apply all manure on site; Category 2
facilities currently do not have enough land to apply all manure on
site; and Category 3 facilities currently apply no manure on site (this
manure is already being spread offsite). Neither Category 1 nor
Category 3 facilities will show a change in nitrogen emission rates
from the land application of animal manure under the proposed
regulatory options. However, Category 2 facilities will be required to
apply their waste at the agricultural rate under the regulatory
options, thus reducing the amount of manure applied on site and
subsequently reducing air emissions from on-site land application.
Under a phosphorus-based application scenario, facilities will have
to apply supplemental nitrogen fertilizer to meet crop nutrient needs.
The cost model assumes facilities will apply commercial ammonium
nitrate or urea. The application of commercial fertilizer represents an
increase in applied nutrients on site. While losses from applied
commercial nitrogen are expected to be less than those from applied
manure, data from Ohio State Extension states that both of these
fertilizers can experience losses through denitrification if placed on
wet or compacted soils. There is also a possibility that urea will
volatilize if it is dry for several days after soil application.
Ammonium nitrate fertilizer (when injected) is less likely to
volatilize because it quickly converts to nitrate nitrogen which will
not volatilize.
EPA estimated a ``worst-case scenario'' for ammonia emissions due
to commercial fertilizer application based on a 35% loss of applied
nitrogen.
c. Air Emissions from Vehicles. i. Off-Site Transportation. All
options are expected to result in increasing the amount of manure
hauled off-site, at least for some operations. Consistent with the cost
model, EPA has grouped operations into three possible transportation
categories. Category 1 facilities currently land apply all manure on
site and Category 3 facilities currently transport all manure off site.
Neither Category 1 nor Category 3 facilities require additional
transportation of manure and will not have an increase in criteria air
emissions. Category 2 facilities do not have enough land to apply all
waste on site and do not currently transport waste. These facilities
are expected to transport manure off site and therefore will have an
increase in the amount of criteria air pollutants generated by the
facility.
Hauling emissions estimates are based on calculations of the annual
amount of waste generated, the annual number of miles traveled, and
truck sizes. The number of trucks, number of trips per truck, the
amount of waste and transportation distance are all calculated within
the cost model. Vehicle emissions are calculated based on emission
factors for diesel-fueled vehicles presented in ``Compilation of Air
Pollution Emission Factors'' (AP-42). Estimates were calculated for
volatile organic compounds, nitrogen oxides, particulate matter, and
carbon monoxide.
ii. On-Site Composting Activities. Farm equipment used for on-site
composting activities also affect the generation of air emissions,
although composting of waste may also result in a reduction in
transportation air emissions. While composting waste prior to hauling
offsite can increase the marketability of the manure and may decrease
hauling costs per ton of waste for some operations, not all operations
can be expected to realize such benefits. Under Option 5, beef and
dairy operations would be required to compost their solid manure. The
criteria air emissions from on-site composting of manure were estimated
for beef and dairy operations under Option 5. The source of criteria
air emissions from composting are tractors and associated windrow-
turning equipment.
2. Summary of Air Emission Impacts
Option 1: Emissions of methane and carbon dioxide from beef and
dairy operations decrease under Option 1 due to the addition of solids
separation in the waste management system. The separated solids are
stockpiled rather than held in waste storage ponds or anaerobic
lagoons. Anaerobic conditions, and the potential of the volatile solids
to convert to methane, decrease using this drier method of handling the
waste. However, this method also results in greater conversion of
nitrogen to nitrous oxide. An increase in nitrous oxide emissions from
dairies occurs for this reason. Greenhouse gas emissions from dry
poultry operations (broilers, turkeys, and dry layers) do not change
under Option 1 since no change to the waste handling practices are
expected. These operations are already handling the waste as a dry
material. Although indoor storage of poultry litter is included in the
options, it is not expected to significantly alter the air emissions
from the litter. Emissions of greenhouse gases from swine and wet
poultry operations also do not change since no change to the waste
handling practices are expected.
Ammonia emissions occur primarily from liquid waste storage areas,
including ponds and lagoons. Under Option 1, all facilities are
required to contain surface runoff from the feedlot, thereby increasing
ammonia emissions from smaller beef and dairy CAFOs that do not
currently have runoff control ponds or lagoons. Ammonia emissions
[[Page 3106]]
for the poultry and swine sectors are not expected to change under
Option 1.
Option 1 requires the application of animal waste to cropland at
agronomic rates for nitrogen. Animal feeding operations that have
excess nitrogen for their crops will need to transport their waste to
another location. The generation of criteria pollutants for all animal
sectors are expected to increase from baseline to Option 1 due to the
additional transportation of waste off-site.
Options 2-4 and 7: No change in emissions of methane, carbon
dioxide, or nitrous oxide occurs for all sectors relative to Option 1
because no significant changes in waste management are anticipated.
Likewise, no large changes are expected for ammonia emissions.
These options require the application of animal waste to cropland
at agronomic rates for phosphorus. Animal feeding operations that have
excess phosphorus for their crops will need to transport their waste to
another location. The generation of criteria pollutants are expected to
increase from Option 1 to these options because more waste will need to
be transported off site to meet agronomic rates for phosphorus.
Option 5A: Option 5A does not apply to the beef and dairy sectors.
Emissions of greenhouse gases at swine operations significantly
decrease under Option 5A, due to covering lagoons. The swine operations
are expected to flare the gas that is generated in the lagoon. The
methane will be converted, although carbon dioxide emissions will
increase. In addition, the emissions of NOX and
SOX increase because of the flaring of biogas collected from
the covered lagoon.
On-site ammonia emissions at swine operations will decrease because
the lagoon cover prevents the ammonia from leaving solution. Ammonia in
the effluent from the covered lagoon will volatilize, however, soon
after it is exposed to air.
Option 5B: Emissions of greenhouse gases from beef and dairy
operations increase under Option 5B (i.e., mandated technology of
composting), relative to Options 1 and 2. Compost operations include
the addition of organic material to the waste pile to aid in the
decomposition of the waste. This additional material also decomposes
and contributes to increased methane emissions compared to other
options. In addition, compost operations liberate more methane than
stockpiles because the windrows are turned regularly. Stockpiles tend
to form outer crusts that reduce the potential for air emissions to
occur.
Emissions of greenhouse gases for swine operations under Option 5B
are less than Option 2 due to the conversion of liquid manure handling
systems (e.g., flush lagoons) to dry manure handling systems. Dry
manure generates less methane than liquid systems. However, the
emissions are higher than either Options 5A or 6, which allow liquid
manure systems, but include destruction of the biogas generated from
those systems.
Ammonia emissions at beef and dairy operations are expected to
increase. During composting operations, the aeration of the compost
pile liberates nitrogen in the form of ammonia. Ammonia emissions at
swine operations are expected to decrease compared to Option 2, because
of liquid manure systems converting to dry operations.
Option 5B generates the least criteria air pollutants compared to
any other option for beef operations. Although composting operations
include the operation of turning equipment which uses fuel and
generates additional tractor air emissions, the process reduces the
overall volume of waste to be transported. However, for dairy,
additional organic material is added to the compost pile, which results
in slightly higher transportation emissions than Option 2. Option 5B
emissions of criteria pollutants for poultry operations are equal to
the emissions for Options 2-4 and 7, since there is no difference in
the amount of waste transported off site. The emissions from swine
operations are significantly lower than Option 2 because the conversion
of flush operations to dry housing significantly decreases the volume
of waste to be transported off site.
Option 6: Relative to Option 2, only the dairy and swine sectors
see any changes in air emissions. Emissions of methane from swine and
dairy waste under Option 6 significantly decrease due to the addition
of the anaerobic digester. A significant portion of the methane
generated is collected as biogas and converted to energy. Drylot areas
at dairies, however, will continue to generate methane that is
uncollected. Carbon dioxide emissions significantly increase as methane
is converted during the combustion process.
Although waste at large swine and dairy CAFOs will be digested, no
significant changes to ammonia emissions are expected. The ammonia
nitrogen, which is highly soluble, remains in solution in the digester.
When the digester effluent is stored in an open lagoon, the ammonia
will then be released.
Emissions of criteria pollutants from swine and dairy operations
increase due to the addition of anaerobic digestion for large dairy
operations. The digester collects biogas, which is subsequently
combusted and converted into VOCs, NOX, and CO. Hydrogen
sulfide contained in swine waste will be converted to Sox.
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3. Energy Impacts
The proposed regulatory options may result in increased energy use
for operations that currently do not capture their runoff or other
process wastewater. These operations would need to capture the feedlot
runoff, divert it to a waste management system, and use this wastewater
for irrigation or dispose of it by some alternative means.
For the land application areas, the proposed regulatory options
assume all CAFOs will apply their manure and wastewater using
agricultural application rates. In many instances this means that
facilities would have to limit the amount of manure applied to the land
which may result in decreased energy usage at the CAFO. However, total
energy requirements for land application increase under all options due
to the increased transportation of waste off-site. Additional energy is
also required to operate composting equipment, and at swine CAFOs to
operate recirculating pumps to reuse lagoon effluent as flush water.
Option 6 includes the use of anaerobic digesters with energy
recovery to manage animal waste for large dairy and swine operations.
Digesters require a continuous input of energy to operate the holding
tank mixer and an engine to convert captured methane into energy. The
energy required to continuously operate these devices, as well as the
amount of energy generated by the system, have been determined from the
FarmWare model, which was also used for estimating compliance costs.
Under Option 6, EPA anticipates a net decrease in electricity use due
to the energy savings from methane recovery.
B. Quantitative and Monetized Benefits
In addition to costs and impacts, EPA also estimated the
environmental and human health benefits of today's proposed
requirements. Benefits identified as a result of this proposed rule are
associated with improvements in water quality.
EPA is not currently able to evaluate all human health and
ecosystem benefits associated with water quality improvements
quantitatively. EPA is even more limited in its ability to assign
monetary values to these benefits. The economic benefit values
described below and in the ``Environmental and Economic Benefits of the
NPDES/ELG CAFO Rules'' (Benefit Report) should be considered a subset
of the total benefits of this rule and should be evaluated along with
descriptive assessments of benefits and the acknowledgment that even
these may fall short of the real-world benefits that may result from
this rule. For example, the economic valuation considers the effects of
nitrogen, phosphorous, pathogens and sediment but does not evaluate the
economic impacts of metals or hormones which can produce significant
adverse environmental impacts.
Within these confines, EPA analyzed the effects of current water
discharges and assessed the benefits of reductions in these discharges
resulting from this proposed regulation. The CAFO industry waste
effluents contain pollutants that, when discharged into freshwater and
estuarine ecosystems, may alter aquatic habitats, affect aquatic life,
and adversely affect human health.
For this proposed rule, EPA conducted four benefit studies to
estimate the impacts of controlling CAFO manure. The first study is a
national water quality model (National Water Pollution Control
Assessment Model) that estimates runoff from land application areas to
rivers, streams, lakes and impoundments in the U.S. This study
estimates the value society places in improvements in surface water
quality associated with the different regulatory scenarios. Another
study examines the expected improvements in shellfish harvesting as a
result of CAFO regulation. A third study looks at incidences of fish
kills that are attributed to animal feeding operations and estimates
the cost of replacing the lost fish stocks. A fourth study estimates
the benefits associated with reduced groundwater contamination. Each of
these studies is described below.
1. Benefit Scenarios
There are eight benefit scenarios under consideration, four
scenarios (1, 2/3, 4a and 4b) using a nitrogen application rate and the
same 4 scenarios using a phosphorus application rate. Scenarios 1 \2/3\
have a three-tiered structure similar to the current rule. Tier 1 is
1,000 AU and greater; Tier 2 is 300--999 AU; Tier 3 is less than 300
AU. Scenarios 4a and 4b have a two-tiered structure. Under Scenario 4a,
Tier 1 is 500 AU and greater; Tier 2 is less than 500 AU. Under
Scenario 4b, Tier 1 is 300 AU and greater; Tier 2 is less than 300 AU.
EPA is co-proposing a two-tier and a three-tier structure (phosphorus--
Scenario \2/3\ and Phosphorus--Scenario 4a). Table 11-9 summarizes the
regulatory scenarios considered in the benefits analysis.
Table 11-9.--Regulatory Scenarios Considered in the Benefits Analysis
------------------------------------------------------------------------
Effluent
Regulatory scenario NPDES revisions guidelines
revisions
------------------------------------------------------------------------
Baseline...................... CAFOs include any AFO Manure
with over 1,000 AUs, application not
as well as AFOs with regulated.
300 or more AUs that
meet certain
requirements.
Nitrogen--Scenario 1.......... Baseline scenario plus Nitrogen-based
dry poultry and manure
immature swine and application.
heifer operations.
Nitrogen--Scenario 2/3........ New NPDES conditions Nitrogen-based
for identifying CAFOs manure
among AFOs with 300- application.
1000 AUs, plus dry
poultry and immature
swine and heifer
operations.
Nitrogen--Scenario 4a......... CAFOs include all AFOs Nitrogen-based
with 500 or more AUs, manure
plus dry poultry, application.
immature swine and
heifer manure
operations.
Nitrogen--Scenario 4b......... CAFOs include all AFOs Nitrogen-based
with 300 or more AUs, manure
plus dry poultry, application.
immature swine and
heifer operations.
Phosphorus Scenario 1......... Baseline scenario plus Phosphorus-based
dry poultry and manure
immature swine and application.
heifer operations.
Phosphorus Scenario 2/3*...... New NPDES conditions Phosphorus-based
for identifying CAFOs manure
among AFOs with 300- application.
1000 AUs, plus dry
poultry and immature
swine and heifer
operations.
Phosphorus Scenario 4a*....... CAFOs include all AFOs Phosphorus-based
with 500 or more AUs, manure
plus dry poultry, application.
immature swine and
heifer operations.
[[Page 3116]]
Phosphorus Scenario 4b........ CAFOs include all AFOs Phosphorus-based
with 300 or more AUs, manure
plus dry poultry, application.
immature swine and
heifer operations.
------------------------------------------------------------------------
* Proposed scenarios.
EPA has developed a model facility analysis to assess changes in
pollutant loadings under baseline conditions and proposed regulatory
scenarios. First, the analysis disaggregates the universe of AFOs
according to a suite of characteristics directly affecting manure
generation, manure management, and pollutant loadings. AFOs are then
grouped into five geographic regions. Within each geographic region,
EPA defines model facilities by production sector, subsector, and size
(number of animals).
EPA then calculates manure production and the associated production
of pollutants for each model facility. EPA multiplies the number of
animal units per model facility by the manure production per animal
unit to determine total manure production. EPA then calculates total
generation of nutrients based on the typical pollutant concentrations
per unit of recoverable manure for each animal type.
The core modeling analysis focuses on land application practices
for each model facility and the capacity for soil and crop removal of
nutrients applied to the land.\1\ EPA divides the total nitrogen and
phosphorus generated in manure by the average total acreage available
for land application for an operation in the given region, size class,
and production sector. The ratio of nutrients applied to crop nutrient
requirements provides a measure of the excess nutrients applied in the
manure. This in turn forms the foundation for loadings analyses of
regulatory scenarios that call for adherence to agronomic rates of
nutrient application.
---------------------------------------------------------------------------
\1\ In addition to modeling loadings based on manure
application, EPA develops two complementary analyses to examine
loadings from storage structures and feedlots.
---------------------------------------------------------------------------
EPA models ``edge-of-field'' loadings (i.e., pollutant loadings at
the boundary of the model facility) using the Groundwater Loading
Effects of Agricultural Management Systems (GLEAMS) model. This field-
scale model simulates hydrologic transport, erosion, and biochemical
processes such as chemical transformation and plant uptake. The model
uses information on soil characteristics and climate, along with
nutrient production data, to model losses of nutrients in surface
runoff, sediment, and groundwater leachate. Loadings are modeled for
the pre- and post-regulatory scenarios to estimate changes in loadings
attributable to the proposed standards.
Finally, EPA extrapolates from the model facilities to develop
national estimates of baseline and post-regulatory pollutant loadings
from AFOs. Using the USDA Census of Agriculture, EPA determines the
number of operations that raise animals under confinement. Then, EPA
determines the number of CAFOs based on operations that are defined as
CAFOs and smaller operations that are designated as CAFOs based on
site-specific conditions, as established by the permitting authority.
Finally, AFOs and CAFOs by region are placed into counties (and
eventually watersheds) using published county level Census data.
Therefore, the end product of the GLEAMS modeling is a spatial
distribution of aggregated edge-of-field loadings that can be used in
the water quality modeling and benefits monetization process described
below.
National Surface Water Pollution Study. The National Water
Pollution Control Assessment Model (NWPCAM) was employed to estimate
national economic benefits to surface water quality resulting from
implementation of various scenarios for regulating CAFOs. NWPCAM is a
national-scale water quality model for simulating the water quality and
economic benefits that can result from various water pollution control
policies. NWPCAM is designed to characterize water quality for the
Nation's network of rivers and streams, and, to a more limited extent,
its lakes. Using GLEAMS output data, NWPCAM is able to translate
spatially varying water quality changes resulting from different
pollution control policies into terms that reflect the value
individuals place on water quality improvements. In this way, NWPCAM is
capable of deriving economic benefit estimates for scenarios for
regulating CAFOs.
NWPCAM estimates pollutant loadings to the stream (nitrogen,
phosphorous, metals, pathogens and sediment) for each regulatory
scenario. These loadings by scenario (NWPCAM output) are used as input
to the other studies. Thus, all stream loading estimates are derived
from NWPCAM.
1. NWPCAM Loading reductions
Table 11-10 shows the estimated pollutant reduction for nitrogen,
phosphorus, fecal coliform, fecal streptococci, and sediment for each
of the five NPDES regulatory scenarios based on either nitrogen or
phosphorus manure land application. Nitrogen reductions range from 14
million to 33 million kgs per year; phosphorus ranges from 35 million
to 59 million kgs per year; fecal coliform from 26 billion to 38
billion colonies per year; fecal streptococci from 37 to 65 billion
colonies per year; and sediment from 0 kgs to 38 million kgs per year.
The proposed Phosphorus--Scenario 2/3 shows a reduction of 30 M kg
(66M lbs) of nitrogen, 54M kg (119M lbs) of phosphorus, 34 billion
colonies of fecal coliform, 60 billion colonies of fecal strep, and 35B
kg (77B lbs) of sediment. Phosphorus--Scenario 4a shows a reduction of
29 million kg (64M lbs)of nitrogen, 52 million kg (115 M lbs) of
phosphorus, 32 billion and 58 billion colonies of fecal coliform and
fecal streptococci, respectively and 34 billion kg (75B lbs) of
sediment to our nation's waters each year.
[[Page 3117]]
Table 11-10.--Pollutant Reduction Based on Nitrogen or Phosphorus Manure Application Rates by NPDES Scenario
----------------------------------------------------------------------------------------------------------------
Fecal Fecal Sediment
Nitrogen Phosphorus Coliform Strep (billion
(million (million (billion (billion (billion
kg) kg) colonies) colonies) kg)
----------------------------------------------------------------------------------------------------------------
Nitrogen--Scenario 1............................... 14 35 26 37 0
Nitrogen--Scenario 2/3............................. 16 45 31 45 0
Nitrogen--Scenario 4a.............................. 15 42 29 44 0
Nitrogen--Scenario 4b.............................. 18 48 34 47 0
Phosphorus--Scenario 1............................. 25 42 29 50 26
Phosphorus--Scenario 2/3*.......................... 30 54 34 60 35
Phosphorus-- Scenario 4a*.......................... 29 52 32 58 34
Phosphorus--Scenario 4b............................ 33 59 38 65 38
----------------------------------------------------------------------------------------------------------------
*proposed scenarios.
In addition, EPA estimated loadings reductions to surface waters
for various metals found in manure: zinc, copper, cadmium, nickel and
lead. The range of loadings reductions is shown in Table 11-11.
Table 11-11.--Range of Metal Loading Reductions Across Scenarios
------------------------------------------------------------------------
Metal low (kg) high (kg)
------------------------------------------------------------------------
Zinc........................... 10 M.............. 19 M
Copper......................... 546 K............ 1,051 K
Cadmium........................ 23 K.............. 39 K
Nickel......................... 219 K............. 418 K
Lead........................... 395 K............. 777 K
------------------------------------------------------------------------
Table 11-12 is a list of metals and load reductions per year for
the proposed scenarios.
Table 11-12.--Metal Loading Reductions for Scenario 2/3-Scenario 4a
------------------------------------------------------------------------
Metal Kilograms*
------------------------------------------------------------------------
Zinc.................................. 18 million/17 million.
Copper................................ 1 million/895 thousand.
Cadmium............................... 37 thousand/35 thousand.
Nickel................................ 400 thousand/345 thousand.
Lead.................................. 740/690 thousand.
------------------------------------------------------------------------
*rounded to the nearest 10.
The methods used to develop these loading reduction estimates are
outlined in detail in the Environmental and Economic Benefits of the
NPDES/ELG CAFO Rules.
2. Monetized Benefits
a. National Water Pollution Control Assessment Model (NWPCAM).
Economic benefits associated with the various AFO/CAFO scenarios are
based on changes in water quality use-support (i.e., boatable,
fishable, swimmable) and the population benefitting from the changes.
Benefits are calculated state-by-state at the State (local) scale as
well as at the national level. For each State, benefits at the local-
scale represent the value that the State population is willing to pay
for improvements to waters within the State or adjoining the State. For
each State, benefits at the national-scale represent the value that the
State population is willing to pay for improvements to waters in all
other states in the continental United States.
Based on the NWPCAM analysis, the total national willingness-to-pay
(WTP) benefits at the local-scale for all water quality use-supports
ranged from approximately $4.3 million (1999 dollars) for the least
stringent scenario to $122.1 million for the most stringent scenario.
The total national WTP benefits at the national-scale for all water
quality use-supports ranged from approximately $0.4 million (1999
dollars) for the least stringent scenario to $22.7 million for the most
stringent scenario. Total WTP benefits (i.e., sum of local-scale and
national-scale) for all water quality use-supports ranged from
approximately $4.9 million (1999 dollars) for the least stringent
scenario to $145 million for the most stringent scenario.
Table 11-13 summarizes the resulting estimates of economic benefits
for each of the six regulatory scenarios analyzed. EPA estimates that
the annual benefits of Phosphorus--Scenario 2/3 is approximately $127
million per year; for Phosphorus--Scenario 4a is $108 million per year.
Table 11-13.--Economic Benefit of Estimated Improvements in Surface
Water Quality
[In millions of 1999 dollars]
------------------------------------------------------------------------
Annual
Regulatory scenario benefits
------------------------------------------------------------------------
Nitrogen--Scenario 1....................................... $4.9
Nitrogen--Scenario 2/3..................................... 6.3
Nitrogen--Scenario 4a...................................... 5.5
[[Page 3118]]
Nitrogen--Scenario 4b...................................... 7.2
Phosphorus--Scenario 1..................................... 87.6
Phosphorus--Scenario 2/3*.................................. 127.1
Phosphorus--Scenario 4a*................................... 108.5
Phosphorus--Scenario 4b.................................... 145.0
------------------------------------------------------------------------
*Proposed scenarios.
b. Shellfish Beds. Pathogen contamination of coastal waters is a
leading cause of shellfish bed harvest restrictions and closures.
Sources of pathogens include runoff from agricultural land and
activities. Using The 1995 National Shellfish Register of Classified
Growing Waters (shellfish register) published by the National Oceanic
and Atmospheric Administration (NOAA), EPA estimated the possible
improvements to shellfish bed harvesting due to expected pathogen
reductions of each regulatory scenario.
First, EPA characterized the baseline annual shellfish bed
loadings. Then, EPA estimated the area of shellfish-growing waters for
which current loadings are harvested. For the third step, EPA
calculated the average annual per-acre yield of shellfish form
harvested waters. Next, EPA estimated the area of shellfish-growing
waters that are currently unharvested as a result of pollution from
AFOs. From this, EPA calculated the potential harvest of shellfish from
waters that are currently unharvested as a result of pollution from
AFOs. Estimates for all scenarios range from $1.8 million to $2.9
million. Phosphorus--Scenario3 is $2.7 million and Phosphorus--Scenario
4a is $2.4 million.
c. Fishkills. Episodic fish kill events resulting from spills,
manure runoff, and other discharges of manure from animal waste feeding
operations continue to remain a serious problem in the United States.
The impacts from these incidents range from immediate and dramatic kill
events to less dramatic but more widespread events. Manure dumped into
and along the West Branch of the Pecatonica River in Wisconsin resulted
in a complete kill of smallmouth bass, catfish, forage fish, and all
but the hardiest insects in a 13 mile stretch of the river. Less
immediate catastrophic impacts on water quality from manure runoff, but
equally important, are increased algae growth or algae blooms which
remove oxygen from the water and may result in the death of fish.
Manure runoff into a shallow lake in Arkansas resulted in a heavy algae
bloom which depleted the lake of oxygen, killing many fish.
Fish health and fish kills are an indication of water quality. If
fish cannot survive or are sick in their natural habitat then the
public may view the water as unsuitable for recreational activities and
fish unfit for human consumption. Parts of the Eastern Shore of the
United States have been plagued with problems related to pfiesteria, a
dinoflagellate algae that exist in rivers at all times, but can
transform itself into a toxin that eats fish. Fish attacked by
pfiesteria have lesions or large, gaping holes on them as their skin
tissue is broken down; the lesions often result in death. The
transformation of pfiesteria to the toxic form is believed to be the
result of high levels of nutrients. Fish kills related to pfiesteria in
the Neuse River in North Carolina have been blamed on the booming hog
industry and the associated waste spills and runoff from the hog farms.
There is preliminary evidence that suggests that there are human
health problems associated with exposure to pfiesteria. As a result,
people most likely would limit or avoid recreational activities in
waters with pfiesteria-related fish kills. The town of New Bern, a
popular summer vacation spot along the Neuse River in North Carolina,
was concerned about a decline in tourism after several major fish kills
in the summer of 1995. Not only were fish killed, people became sick
after swimming or fishing in the waters. People swimming in the waters
reported welts and sores on their body. Summer camps canceled boating
classes and children were urged to stay out of the water. Fishing boats
were concerned about taking people fishing on the river. People were
warned not to eat fish that were diseased or sick. At one point, after
seeing miles and miles of dead fish, a top environmental official
issued a warning urging people not to swim, fish, or boat in the fish-
kill zone. Many blame the heavy rainfall which pumped pollutants from
overflowing sewage plants and hog lagoons into the river, creating
algae blooms, low oxygen and pfeisteria outbreaks as the cause of the
fish kills.
Reports on fish kill events in the United States were collected by
the Natural Resources Defense Council and the Izaak Walton League.
Nineteen states reported information on historical and current fish
kills. Using these data, EPA estimated the benefits related to reduced
fish being killed for each regulatory scenario. At a seven percent
discount rate, benefits range from $2 million to $42 million. Benefots
for Phosphorus--Scenario 3 range from $2.4 million to $30.6 million;
for Phosphorus--Scenario 4a, from $2.8 million to $34.5 million.
d. Groundwater Contamination. CAFOs can contaminate groundwater and
thereby cause health risks and welfare losses to people relying on
groundwater sources for their potable supplies or other uses. Of
particular concern are nitrogen and other animal waste-related
contaminants (originating from manure and liquid wastes) that leach
through the soils and the unsaturated zone and ultimately reach
groundwaters. Nitrogen loadings convert to elevated nitrate
concentrations at household and community system wells, and elevated
nitrate levels in turn pose a risk to human health in households with
private wells (nitrate levels in community wells are regulated to
protect human health). The proposed regulation will generate benefits
by reducing nitrate levels in household wells, and there is clear
empirical evidence that households have a positive willingness to pay
to reduce nitrate concentrations in their water supplies.
The federal health-based National Primary Drinking Water Standard
for nitrate is 10 mg/L, and this Maximum Contaminant Level (MCL)
applies to all Community Water Supply systems. Households relying on
private wells are not subject to the federal MCL for nitrate but levels
above 10 mg/L are considered unsafe for sensitive subpopulations (e.g.,
infants). Several economic studies indicate a considerable WTP by
households to reduce the likelihood of nitrate levels exceeding 10 mg/L
(e.g., $448 per year per household (Poe and Bishop, 1991)). There also
is evidence of a positive household WTP to reduce nitrate levels even
when baseline concentrations are considerably below the MCL
(approximately $2 per mg/L of reduced nitrate concentration
(Crutchfield et al., 1997, De Zoysa, 1995)).
Based on extensive U.S. Geologic Survey (USGS) data on nitrate
levels in wells throughout the country, an empirical model was
developed to predict how each regulatory option would affect the
distribution of nitrate concentrations in household wells. Table 11-14
indicates the number of household wells that are estimated to have
baseline (i.e., without regulation) concentrations above 10 mg/L and
that will have these concentration reduced to levels below the MCL for
each option.
[[Page 3119]]
Also shown are the households with predicted nitrate levels that are
below the MCL at baseline, but that will experience further reductions
in nitrate levels due to the proposed regulation.
Table 11-14.--Reduction in Households Exceeding MCL and mg/L of Nitrate
in Wells
------------------------------------------------------------------------
Reduction, from
baseline, in # Total number of
Regulatory Scenario households mg/L reduced in
exceeding 10 mg/ wells at 1-10 mg/
L L baseline
------------------------------------------------------------------------
Baseline # of households affected... 1,277,137 6,195,332
Nitrogen--Scenario 1................ 152,204 961,741
Nitrogen--Scenario 2/3.............. 152,204 1,007,611
Nitrogen--Scenario 4a............... 161,384 1,186,423
Nitrogen--Scenario 4b............... 161,384 1,186,423
Phos.--Scenario 1................... 161,384 1,103,166
Phos--Scenario 2/3*................. 161,384 1,159,907
Phos--Scenario 4a*.................. 165.974 1,374,990
Phos--Scenario 4b................... 165,974 1,374,990
------------------------------------------------------------------------
* Proposed scenarios.
The monetized benefits of these nitrate concentration reductions is
estimated to be $49.4 million per year for Phosphorus--Scenario 2/3, as
shown in Table 11-15. The total benefits of this scenario consist of
$47.8 million for the households that have nitrate levels reduced to
below the MCL from baseline concentrations above 10 mg/L, plus an
additional $1.5 million for those households with nitrate reductions
relative to baseline levels below the MCL. The monetized benefits of
these nitrate concentration reductions is estimated to be $51.0 million
per year for Phosphorus--Scenario 4a. The total benefits of this option
consist of $49.2 million for the households that have nitrate levels
reduced to below the MCL from baseline concentrations above 10 mg/L,
plus an additional $1.7 million for those households with nitrate
reductions relative to baseline levels below the MCL. The household
benefits of the other options are also shown in the table, and range
from $46.4-$50.1 million per year.
Table 11-15.-- Annualized Monetary Benefits Attributable To Reduced Nitrate Concentrations
----------------------------------------------------------------------------------------------------------------
Benefits from Benefits from
households households
Regulatory scenario Total benefits exceeding MCL at between 1 and 10
baseline mg/L at baseline
----------------------------------------------------------------------------------------------------------------
Nitrogen--Scenario 1...................................... $46,372,457 $45,118,803 $1,219,763
Nitrogen--Scenario 2/3.................................... 46,432,250 45,118,803 1,276,293
Nitrogen--Scenario 4a..................................... 49,386,622 47,840,089 1,498,104
Nitrogen--Scenario 4b..................................... 49,386,622 47,840,089 1,498,104
Phosphorus--Scenario 1.................................... 49,278,094 47,840,089 1,396,043
Phosphorus--Scenario 2/3*................................. 49,352,058 47,840,089 1,465,648
Phosphorus--Scenario 4a*.................................. 50,993,067 49,200,732 1,729,337
Phosphorus--Scenario 4b................................... 50,993,067 49,200,732 1,729,337
----------------------------------------------------------------------------------------------------------------
* Proposed scenarios.
e. Total Benefit of Proposed Regulatory Scenario. Table 11-16 shows
the annualized benefits for each of the studies conducted. Table 11-17
shows the summary of annualized benefits for three discount rates (3,
5, and 7 percent). The total monetized benefits for this proposed rule
are, at a minimum, $163 million for Phosphorus--Scenario 2/3 and $146
million for Phosphorus--Scenario 4a, discounted at seven percent. At a
three percent discount rate, the annualized benefits for Phosphorus--
Scenario 3 are $180 million and for Phosphorus--Scenario 4a, $163
million. These represent the lower bound estimates for this analysis.
The upper end of the range would include estimates for drinking water
treatment plant cost savings, surface water improvements from
nonboatable to boatable water quality conditions, and other benefits
that we were unable to estimate at this time. We plan to include some
of these monetized benefits in the final rule.
Table 11-16.--Estimated Annualized Benefits of Revised CAFO Regulations
[1999 dollars, millions]
----------------------------------------------------------------------------------------------------------------
Recreational Reduced
Regulatory Scenario and non-use Reduced Improved private well
benefits fish kills shellfishing contamination
----------------------------------------------------------------------------------------------------------------
Nitrogen--Scenario 1................................. 4.9 0.1-0.2 0.1-1.8 33.3-49.0
Nitrogen--Scenario 2/3............................... 6.3 0.1-0.3 0.2-2.4 33.3-49.1
Nitrogen--Scenario 4a................................ 5.5 0.1-0.3 0.2-2.2 35.5-52.2
Nitrogen--Scenario 4b................................ 7.2 0.1-0.3 0.2-2.6 35.5-52.2
[[Page 3120]]
Phosphorus--Scebarui 1............................... 87.6 0.2-0.3 0.2-2.1 35.4-52.1
Phosphorus--Scenario 2/3*............................ 127.1 0.2-0.4 0.2-2.7 35.4-52.1
Phosphorus--Scenario 4a*............................. 108.5 0.2-0.4 0.2-2.4 36.6-53.9
Phosphorus--Scenario 4b.............................. 145.0 0.2-0.4 0.2-3.0 36.6-53.9
----------------------------------------------------------------------------------------------------------------
* Proposed scenarios.
Table 11-17.--Summary of Annualized Benefits
[1999 dollars, millions]
----------------------------------------------------------------------------------------------------------------
Discount rates
-----------------------------------------------
Regulatory scenario 3 percent 5 percent 7 percent
-----------------------------------------------
Low High Low High Low High
----------------------------------------------------------------------------------------------------------------
Nitrogen--Scenario 1............................................ 54.1 55.9 45.0 46.9 38.4 40.2
Nitrogen--Scenario 2/3.......................................... 55.7 58.0 46.6 48.9 39.9 42.3
Nitrogen--Scenario 4a........................................... 58.0 60.2 48.3 50.5 41.2 43.4
Nitrogen--Scenario 4b........................................... 59.7 62.3 50.1 52.6 43.0 45.5
Phosphorus--Scenario 1.......................................... 140.0 142.1 130.4 132.4 123.3 125.4
Phosphorus--Scenario 2/3*....................................... 179.7 182.3 170.0 172.7 163.0 165.6
Phosphorus--Scenario 4a*........................................ 162.8 165.1 152.8 155.2 145.5 147.9
Phosphorus--Scenario 4b......................................... 199.4 202.2 189.4 192.2 182.1 185.0
----------------------------------------------------------------------------------------------------------------
* Proposed scenarios.
XII. Public Outreach
A. Introduction and Overview
EPA has actively involved interested parties to assist it in
developing a protective, practical, cost-effective regulatory proposal.
EPA has provided many opportunities for input in this rulemaking
process. EPA has met with various members of the stakeholder community
on a continuing basis through meeting requests and invitations to
attend meetings, conferences, and site visits. These meetings with
environmental organizations, agricultural organizations, producer
groups, and producers representing various agricultural sectors have
allowed EPA to interact with and receive input from stakeholders about
the Unified Strategy and the NPDES and effluent limitations regulatory
revisions. In addition, EPA convened a Small Business Advocacy Review
Panel to address small entity concerns. EPA also sent an outreach
package to and met with several national organizations representing
State and local governments. More detailed information on EPA's public
outreach is provided in the rulemaking record.
B. Joint USDA/EPA Unified AFO Strategy Listening Sessions
In the fall of 1998, EPA and USDA announced eleven public outreach
meetings designed to allow public comment on the Draft Unified National
AFO Strategy. The meetings were held in the following cities: Tulsa,
Oklahoma; Harrisburg, Pennsylvania; Ontario, California; Madison,
Wisconsin; Seattle, Washington; Des Moines, Iowa; Chattanooga,
Tennessee; Indianapolis, Indiana; Fort Worth, Texas; Denver, Colorado;
and Annapolis, Maryland. Each meeting included a pre-meeting among
state and regional officials, EPA, and USDA representatives to discuss
the draft strategy and the issues posed by CAFOs in general. All
participants in the public sessions, including numerous small entities,
were given the opportunity to sign up and provide their comments to a
panel consisting of EPA, USDA, and local representatives. Many of the
commenters made points or raised issues germane to small entities. A
transcript of these comments was used by EPA and USDA in developing the
final Unified National AFO Strategy. These comments and concerns have
been considered by EPA in the development of the revised NPDES CAFO
regulations. The transcripts of these meetings are available on the OWM
Web Site (www.epa.gov/owm/afo.htm) and are available in the record.
C. Advisory Committee Meeting
EPA was invited to meet with the Local Government Advisory
Committee, Small Community Advisory Subcommittee on September 8, 1999.
At this Federal Advisory Committee Act meeting, EPA described the CAFO
regulatory revisions being considered, and responded to questions
concerning the effect of EPA's regulatory actions on small communities.
While the CAFO regulations do not directly affect small communities,
AFOs do have an effect on local economies and on the local environment.
Thus, how they are regulated (or not regulated) has implications for
local governments. EPA is keeping local government concerns in mind as
it proceeds with the CAFO regulatory revisions and general public
outreach activities.
D. Farm Site Visits
EPA conducted approximately 110 site visits to collect information
about waste management practices at livestock and poultry operations.
Agency staff visited a wide range of operations, including those
demonstrating centralized treatment or new and innovative technologies.
EPA staff visited livestock and poultry operations throughout the
United States, the majority of which were chosen with the assistance of
the leading industry trade associations and also by the Natural
Resources Defense Council, the Clean Water Network, university experts,
State cooperative and extension agencies, and state and EPA regional
representatives.
[[Page 3121]]
EPA also attended USDA-sponsored farm tours, as well as tours offered
at industry, academic, and government conferences. Details on these
visits are provided in the rulemaking record.
EPA staff visited cattle feeding operations in Texas, Oklahoma,
Kansas, Colorado, California, Indiana, Nebraska, and Iowa, as well as
veal operations in Indiana. The capacities of the beef feedlots varied
from 500 to 120,000 head. EPA also visited dairies in Pennsylvania,
Florida, California, Colorado, and Wisconsin, with the total mature
dairy cattle at the operations ranging from 40 to 4,000 cows. In
addition, EPA visited broiler, layer and turkey facilities in Georgia,
Arkansas, North Carolina, Virginia, West Virginia, Maryland, Delaware,
Pennsylvania, Ohio, Indiana, and Wisconsin. EPA visited hog facilities
in North Carolina, Ohio, Iowa, Minnesota, Texas, Colorado, Oklahoma,
and Utah.
E. Industry Trade Associations
Throughout regulatory development, EPA has worked with
representatives from the national trade groups, including: National
Cattlemen's Beef Association (NCBA); American Veal Association (AVA);
National Milk Producers Federation (NMPF); Professional Dairy Heifers
Growers Association (PDHGA); Western United Dairymen (WUD); National
Pork Producers Council (NPPC); United Egg Producers and United Egg
Association (UEP/UEA); National Turkey Federation (NTF); and the
National Chicken Council (NCC). All of the above organizations have
provided assistance by helping with site visit selection, submitting
supplemental data, reviewing descriptions of the industry and waste
management practices, and participating in and hosting industry
meetings with EPA.
F. CAFO Regulation Workgroup
EPA established a workgroup that included representatives from USDA
and seven states, as well as EPA Regions and headquarters offices. The
workgroup considered input from stakeholders and developed the
regulatory options presented in today's proposal.
G. Small Business Advocacy Review Panel
1. Summary of Panel Activities
To address small business concerns, EPA's Small Business Advocacy
Chairperson convened a Small Business Advocacy Review (SBAR) Panel
under section 609(b) of the Regulatory Flexibility Act (RFA) as amended
by the Small Business Regulatory Enforcement Fairness Act (SBREFA).
Participants included representatives of EPA, the Small Business
Administration (SBA) and the Office of Management and Budget (OMB).
``Small Entity Representatives'' (SERs), who advised the Panel,
included small livestock and poultry producers as well as
representatives of the major commodity and agricultural trade
associations. Information on the Panel's proceedings and
recommendations is in the Final Report of the Small Business Advocacy
Review Panel on EPA's Planned Proposed Rule on National Pollutant
Discharge Elimination System (NPDES) and Effluent Limitations Guideline
(Effluent Guidelines) Regulations for Concentrated Animal Feeding
Operations (hereinafter called the ``Panel Report''), along with other
supporting documentation included as part of the Panel process. This
information can be found in the rulemaking record.
Prior to convening a SBAR Panel, EPA distributed background
information and materials to potential SERs on September 3, 1999 and
September 9, 1999. On September 17, 1999, EPA held a conference call
from Washington, D.C. which served as a pre-panel forum for small
business representatives to provide input on key issues relating to the
proposed regulatory changes to the ``CAFO Rule.'' Twenty-seven small
business representatives from the beef, dairy, swine, poultry, and
exotic animal livestock industries participated in the conference call.
A summary of the conference call is included in the Panel Report.
Following the conference call, 19 of the 41 small business advisors and
national organizations invited to participate on the conference call
submitted written comments. These written comments are included in the
Panel Report.
The SBAR Panel for the ``CAFO Rule'' was formally convened on
December 16, 1999. On December 28, 1999, the Panel distributed an
outreach package to the final group of SERs, which included many of the
participants in EPA's September 17, 1999 outreach conference call. The
package included: a SER outreach document, which provided a definition
of a small business and described those entities most likely to be
affected by the rule; an executive summary of EPA's cost methodology;
regulatory flexibility alternatives; a cost methodology overview for
the swine, poultry, beef, and dairy sectors; a cost annualization
approach; and a list of questions for SERs. Additional modeling
information was also sent to SERs on January 7, 2000 and January 10,
2000. A complete list of these documents can be found in the Panel
Report; all information sent to the SERs is included in the record.
The SERs were asked to review the information package and provide
verbal comments to the Panel during a January 5, 2000 conference call,
in which 22 SERs participated. During this conference call, SERs were
also encouraged to submit written comments. SERs were given an
additional opportunity to make verbal comments during a second
conference call held on January 11, 2000, in which 20 SERs
participated. During both conference calls, SERs were asked to comment
on the costs and viability of the proposed alternatives under
consideration by EPA. A summary of both conference calls can be found
in the Panel Report. Following the calls, the Panel received 20 sets of
written comments from 14 SERs. A complete set of these comments is
included in the Panel Report.
2. Summary of Panel Recommendations
A full discussion of the comments received from SERs and Panel
recommendations is included in the Panel Report. The major issues
summarized are as follows.
a. Number of Small Entities. The Panel reviewed EPA's methodology
to develop its estimate of the small entities to which the proposed
rule will likely apply. EPA proposed two alternative approaches to
estimate the number of small businesses in these sectors. Both
approaches identify small businesses in these sectors by equating SBA's
annual revenue definition with the number of animals at an operation
and estimate the total number of small businesses in these sectors
using farm size distribution data from USDA. One approach equates SBA's
annual revenue definition with operation size using farm revenue data,
as described in Section X.J.2 of this document. Another approach
equates SBA's annual revenue definition with the operation size using a
modeling approach developed by EPA that calculates the amount of
livestock revenue at an operation based market data, including the
USDA-reported price received by producers, average yield, and the
number of annual marketing cycles. (Additional information on this
latter approach is in the rulemaking record.)
During the Panel process, and following formal consultation with
SBA, the Panel participants agreed to use the first approach to
estimate the number of small businesses in these sectors. More details
on this approach is provided in Section X.J.2 and in Section 9 of the
[[Page 3122]]
Economic Analysis. More detail on the Panel's deliberation of the
approach used to determine the number of small businesses is provided
Sections 4 and 5 of the Panel Report and in other support documentation
developed during the SBAR Panel process. The Panel noted that the
revised methodology may not accurately portray actual small businesses
in all cases across all sectors. The Panel also recognized that, under
this small business definition, EPA would be regulating some small
facilities, but urged EPA to consider the small business impacts of
doing so.
b. Potential Reporting, Record Keeping, and Compliance
Requirements. Record Keeping Related to Off-Site Transfer of Manure.
The Panel reviewed EPA's consideration of record keeping and reporting
requirements in connection with off-site transfer of manure. The Panel
recommended that EPA review and streamline the requirements for small
entities. In response to this recommendation, EPA is limiting its
proposal to keep records of the name and address of the entity to which
the CAFO is transferring manure, how much is being transferred and the
nutrient content of the manure on-site. This information would allow
EPA to track manure, and to follow-up with the third party recipient to
ascertain whether the manure was applied in accordance with Clean Water
Act requirements that may apply. EPA is also proposing under one co-
proposed option that a CAFO obtain a certification from recipients that
land application is done in accordance with proper agricultural
practices. EPA assumes recipients of manure are mostly field crop
producers who already maintain appropriate records relating to nutrient
management. EPA is not proposing to establish specific requirements for
these offsite recipients.
Permit Application and Certification Requirements. The Panel asked
EPA to consider the burden associated with increasing the number of
entities subject to permit between 300 AU and 1,000 AU. Furthermore,
the Panel recommended that EPA carefully consider appropriate
streamlining options before considering a more burdensome approach. EPA
considered several alternative scenarios for the scope of permit
coverage of facilities in this size group, and decided to
simultaneously co-propose two scenarios, as each offers different means
of accomplishing similar environmental outcomes.
The first alternative proposal would retain the current three-tier
structure, but would require an operation in the 300-1,000 AU size tier
to certify to the permitting authority that it does not meet any of the
``risk-based'' conditions (described in Section VII), and thus is not
required to obtain a permit. The three-tier structure would require all
AFOs with 300 AU or more to, at a minimum, obtain a permit nutrient
plan and submit a certification to the permit authority. This
alternative would provide the permit authority the opportunity to
implement effective programs to assist AFOs in order to minimize how
many would be required to apply for a permit. Because those certifying
would not be CAFOs, however, they would have access to section 319
nonpoint source funds. This co-proposed alternative does not meet one
of the goals of today's proposal, as recommended by the Panel, that is,
to simplify the regulations to improve understanding and therefore
compliance by the regulated community. Further, the conditions are such
that all facilities with 300 AU or more would incur some cost
associated with certifying they do not meet any of the conditions. EPA
is also requesting comment on a variation of the three-tier structure
that was presented to the SERs and generally favorably received by the
Panel (see detailed discussion in Section VII.B.3).
The second alternative proposal would adopt a two-tier structure
that defines all operations with 500 AU or more as CAFOs. (EPA is also
requesting comment on a 750 AU threshold.) This proposal would provide
regulatory relief for operations between 300 AU and 500 AU that may be
considered CAFOs under the existing regulations. Operations in this
size group would not be subject to the certification process and would
not incur the costs associated with certification, such as the costs to
obtain a certified Permit Nutrient Plan and to submit a certification
to the permit authority. Under the two-tier structure, operations with
more than 500 AU would all be required to apply for a permit. All
facilities with fewer than 500 AU would be subject to permitting as
CAFOs only through case-by-case designation based on a finding that the
operation is a significant contributor of pollution by the permit
authority. This proposal offers simplicity and clarity as to which
entities will be subject to the proposed regulations and those that
will not, which was recommended by the Panel, as well as indicated by
the regulated community as one of the goals of today's proposal.
Representatives of some State programs, however, have indicated that
they would prefer an option that allows State non-NPDES programs to
address issues at CAFOs in their states, rather than being required to
write permits.
EPA is also proposing to provide regulatory relief to small
businesses by eliminating the mixed animal calculation. As a result,
smaller operations that house a mixture of animal types where none of
these animal types independently meets the regulatory threshold are not
considered CAFOs under either of today's proposals, unless they are
individually designated. EPA believes that this will provide maximum
flexibility for these operations since most are now participating in
USDA's voluntary CNMP program, as outlined in the AFO Strategy. For
more information, see discussion in Section VII. A summary of EPA's
economic analysis is provided in Section X.J of this preamble.
Frequency of Testing. The Panel reviewed EPA's consideration of
requiring periodic soil testing. The Panel agreed that testing manure
and soil at different rates may be appropriate, but expressed concern
about the burden of any inflexible testing requirements on small
businesses. The Panel recommended that EPA consider leaving the
frequency of required testing to the discretion of local permit
writers, and request comment on any testing requirements that are
included in the proposed rule. The Panel further recommended that EPA
weigh the burden of testing requirements to the need for such
information.
EPA is proposing to require soil testing of each field every three
years and manure testing once per year. The proposed frequency is
consistent with standards in many states and also recommendations from
agricultural extension services. To ensure that soils have not reached
a critical concentration of phosphorus, EPA believes that it is
necessary to establish a minimum sampling frequency and testing
requirements for all CAFOs, regardless of size. Since it is believed
that much of the water pollution from agriculture comes from field
runoff, information on manure and soil content is essential for the
operator to determine at what rate manure should be applied. EPA
believes this information is essential for the permitting authority to
know whether the manure is being land applied at proper rates. The
local permit writer retains the discretion to require more frequent
testing.
Groundwater Requirements Where Linked to Surface Water. The Panel
reviewed EPA's consideration of an option that would require
groundwater controls at facilities that are determined to have a direct
hydrological connection
[[Page 3123]]
to surface water since there is reasonable potential for discharges to
surface water via ground water at these facilities (``Option 3'').
Because of the potentially high costs to small operators associated
with both making a determination of a hydrologic link and installing
controls (such as lagoon liners, mortality composting devices,
groundwater monitoring wells, concrete pads, and other technologies),
the Panel recommended that EPA examine this requirement, giving careful
consideration to the associated small entity impacts, in light of the
expected environmental benefits resulting from this option. The Panel
further recommended that if EPA decides to propose any such
requirements that it consider streamlining the requirements for small
entities (e.g., sampling at reduced rates) or exempting them
altogether.
(i) Existing CAFOs. EPA is proposing to require existing beef and
dairy CAFOs to install groundwater controls when the groundwater
beneath the production area has a direct hydrologic connection to
surface water (Option 3, as described in Section VIII). This includes
installation of wells and biannual sampling to monitor for any
potential discharge from the production area. CAFOs are also expected
to construct concrete pads or impermeable surfaces, as well as install
synthetic liners if necessary to prevent discharges to surface water
via direct hydrologic connection. The groundwater controls which are
part of the proposed BAT requirements are in addition to the land
application requirements which ensure that the manure and wastewater
application to land owned or controlled by the CAFO is done in
accordance with a PNP and does not exceed the nutrient requirements of
the soil and crop. EPA has determined that this option represents the
best available technology for existing beef and dairy CAFOs and that
this requirement is economically achievable under both proposed
permitting scenarios (i.e. the two-tier and three-tier structures),
although some CAFOs in these sectors may experience increased financial
burden. Because the risks from discharged pollutants from groundwater
to surface water are location-specific, EPA believes that the proposed
groundwater requirements are necessary at CAFOs where there is a
hydrologic connection to surface waters. EPA's is proposing that these
requirements are economically achievable by operations that are defined
as CAFOs and are also small businesses. The results of EPA's small
business analysis is provided in Section X.J of this preamble.
Moreover, EPA believes that the estimated benefits in terms of
additional groundwater-surface water protections would be significant.
EPA's pollution reduction estimates across options are presented in the
Development Document.
EPA is not proposing BAT requirements for the existing swine, veal
and poultry subcategories on the basis of Option 3, i.e., EPA rejected
proposing groundwater monitoring and controls in the effluent
guidelines for these CAFOs. As described in Section VIII of this
preamble, EPA is proposing Option 5 as the best available technology
economically achievable, which requires zero discharge from the animal
production area with no exception for storm events. Were EPA to add the
requirement to control discharges to groundwater that is directly
connected to surface waters in addition to the Option 5 requirements,
the costs would result in much greater financial impacts to hog and
poultry operations. EPA's analysis shows that the full cost of
groundwater controls (``Option 3'') in addition to requirements under
Option 5 would not be economically achievable by operations in these
sectors.
(ii) New CAFOs. EPA is proposing to require that all new CAFOs in
all subcategories install groundwater controls. EPA expects that
requiring groundwater monitoring is affordable to new facilities since
these facilities do not face the cost of retrofit. EPA's economic
analysis of new facility costs is provided in Section X.F.1(b) of this
preamble. More detailed information is provided in the Economic
Analysis and the Development Document.
c. Relevance of Other Federal Rules. The Panel did not note any
other Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
d. Regulatory Alternatives. The Panel considered a wide range of
options and regulatory alternatives for reducing the burden on small
business in complying with today's proposal. These included:
Revised Applicability Thresholds. The Panel recommended that EPA
give serious consideration to the issues discussed by the Panel when
determining whether to establish less stringent effluent limitations
guidelines for smaller facilities, and whether to preserve maximum
flexibility for the best professional judgement of local permit
writers. The Panel also recommended that the Agency carefully evaluate
the potential benefits of any expanded requirements for operations with
between 300 and 1,000 AU and ensure that those benefits are sufficient
to warrant the additional costs and administrative burden that would
result for small entities.
EPA is proposing to apply the effluent limitation guidelines to all
facilities that are defined as CAFOs, although EPA is also requesting
comment on an option under which they would only apply to facilities
with greater than 1,000 AUs. Thus, under the three-tier structure all
CAFOs with 300 AU or more would be subject to the effluent guidelines.
Under the two-tier structure, all CAFOs with 500 AU or more would be
subject to the effluent guidelines. EPA is also requesting comment on a
750 AU threshold for the two-tier structure. Under both of the co-
proposed alternatives, EPA is proposing to eliminate the ``mixed''
animal calculation for operations with more than a single animal type
for determining which AFOs are CAFOs. As a result, smaller operations
that house a mixture of animal types where none of these animal types
independently meets the regulatory threshold are not considered CAFOs
under today's proposed rulemaking, unless they are individually
designated. EPA believes that this will provide maximum flexibility for
these operations since most are now participating in USDA's voluntary
CNMP program, as outlined in the AFO Strategy. For more information,
see discussion in Section VII.
EPA's two-tier proposal provides additional relief to small
businesses. Under the two-tier structure, EPA is proposing to establish
a regulatory threshold that would define as CAFOs all operations with
more than 500 AU. This co-proposed alternative would provide relief to
small businesses since this would remove from the CAFO definition
operations with between 300 AU to 500 AU that under the current rules
are defined as CAFOs. These operations would no longer be defined as
CAFOs and may avoid being designated as CAFOs if they take appropriate
steps to prevent discharges. In addition, if operations of any size
that would otherwise be defined as CAFOs can demonstrate that they have
no potential to discharge, they would not need to obtain a permit.
Also, under the two-tier structure, EPA is proposing to raise the size
standard for defining egg laying operations as CAFOs from 30,000 to
50,000 laying hens. This alternative would remove from the CAFO
definition egg operations of this size that under the current rules are
defined as CAFOs, if they utilize a liquid manure management system.
EPA believes that revising the regulatory thresholds below 1,000 AU
is necessary to protect the environment
[[Page 3124]]
from CAFO discharges. At the current 1,000 AU threshold, less than 50
percent of all manure and wastewater generated annually would be
captured under the regulation. Under the co-proposed alternatives,
between 64 percent (two-tier) and 72 percent (three-tier) would be
covered. (See Section IV.A of this preamble.) Total pre-tax compliance
costs to CAFOs with fewer than 1,000 AU is estimated to range between
$226 million annually (two-tier) to $298 million annually (three-tier),
or about one-third of the total estimated annual costs (see Section
X.E.1). EPA believes that the estimated benefits in terms of additional
manure coverage justify the estimated costs. EPA estimates that 60
percent (two-tier) to 70 percent (three-tier) of all operations that
are defined as CAFOs and are also small businesses are operations with
less than 1,000 AU. EPA's economic analysis, however, indicates that
these small businesses will not be adversely impacted by the proposed
requirements. EPA's estimates of the number of small businesses and the
results of its economic analysis is provided in Section X.J of this
preamble.
Under each co-proposed alternative, EPA is proposing that
operations that are not defined as CAFO (i.e., operations with fewer
animals than the AU threshold proposed) could still be designated as
CAFOs on a case-by-case basis. During the Panel process, the Panel
urged EPA not to consider changing the designation criteria for
operations with less than 300 AU. This includes the criterion that the
permitting authority must conduct an on-site inspection of any AFO, in
making a designation determination. EPA is not proposing to eliminate
the on-site inspection requirement. EPA believes it is appropriate to
retain the requirement for an on-site inspection before the permitting
authority determines that an operation is a ``significant contributor
of pollution.'' No inspection would be required to designate a facility
that was previously defined or designated as a CAFO. EPA is, however,
requesting comment on whether or not to eliminate this provision or to
redefine the term ``on-site'' to include other forms of site-specific
data gathering. In addition, EPA is proposing to delete two criteria,
including discharge from manmade device and direct contact with waters
of the U.S., as unnecessary to the determination of whether an
operation should be designated as a CAFO. EPA is also proposing to
clarify EPA's designation authority in States with NPDES approved
programs. For more information, see Section VII.
25-year, 24-hour Storm Event. At the time of SBREFA outreach, EPA
indicated to SERs and to the Panel that it was considering removing the
exemption, but not changing the design requirement for permitted CAFOs.
The Panel expressed concern about removing this exemption for
operations with fewer than 1000 AU. The Panel recommended that if EPA
removes the exemption, it should fully analyze the incremental costs
associated with permit applications for those facilities that are not
presently permitted that can demonstrate they do not discharge in less
than a 25-year, 24-hour storm event, as well as any costs associated
with additional conditions related to land application, nutrient
management, or adoption of BMPs that the permit might contain. The
Panel recommended that EPA carefully weigh the costs and benefits of
removing the exemption for small entities. The Panel also urged EPA to
consider reduced application requirements for small operations affected
by the removal of the exemption.
EPA is proposing to require that all operations that are CAFOs
apply for a permit. EPA is proposing to remove the 25-year, 24-hour
storm exemption from the definition of a CAFO. It is difficult to
monitor, and removal of this exemption will make the rule simpler and
more equitable. However, we are proposing to retain the 25-year, 24-
hour storm event as a design standard in the effluent limitation
guidelines for certain animal sectors (specifically, the beef and dairy
cattle sectors). As a result, operations in these sectors that
discharge only in the event of a 25-year, 24-hour storm would not be
exempt from being defined as CAFOs, but would be in compliance with
their permit as long as they met the 25-year, 24-hour storm design
standard. EPA is proposing to establish BAT for the swine, poultry, and
veal subcategories on the basis of Option 5 which bans discharge from
the production area under any circumstances. The technology basis for
this option is covered lagoons, and does not establish a different
design standard for these lagoons. Removal of the exemption from the
CAFO definition should have no impact on operations that are already
employing good management practices. More information is provided in
Sections VII and VIII of this document. Prior to proposing to remove
this exemption, EPA evaluated the incremental costs associated with
permit applications for those facilities that are not presently
permitted and other associated costs to regulated small entities. EPA's
economic analysis is provided in Section X.J of this preamble.
Estimated costs to the NPDES Permitting Authority are presented in
Section X.G.1. Section X.I presents a comparison of the annualized
compliance costs and the estimated monetized benefits.
Manure and Wastewater Storage Capacity. The Panel noted the SERs'
concern about the high cost of additional storage capacity and
recommended that EPA consider low-cost alternatives in its assessment
of best available technologies economically achievable, especially for
any subcategories that may include small businesses. The Panel was
concerned about the high cost of poultry storage and asked EPA to
consider low cost storage. EPA is proposing that facilities may not
discharge pollutants to surface waters. To meet this requirement,
facilities may choose to construct storage sheds, cover manure, collect
all runoff, or any other equally effective combination of technologies
and practices. The proposal does not directly impose any minimum
storage requirements.
Land Application. The Panel recommended that EPA continue to work
with USDA to explore ways to limit permitting requirements to the
minimum necessary to deal with threats to water quality from over-
application and to define what is ``appropriate'' land application,
consistent with the agricultural stormwater exemption. The Panel
recommended that EPA consider factors such as annual rainfall, local
topography, and distance to the nearest stream when developing any
certification and/or permitting requirements related to land
application. The Panel also noted the high cost of P-based application
relative to N-based application, and supported EPA's intent to require
the use of P-based application rates only where necessary to protect
water quality, if at all, keeping in mind its legal obligations under
the CWA. The Panel recommended that EPA consider leaving the
determination of whether to require the use of P-based rates to the
permit writer's discretion, and continue to work with USDA in exploring
such an option.
EPA recognizes that the rate of application of the manure and
wastewater is a site-specific determination that accounts for the soil
conditions at a CAFO. Depending on soil conditions at the CAFO, EPA is
proposing to require that the operator apply the manure and wastewater
either according to a nitrogen-standard or,
[[Page 3125]]
where necessary, on a phosphorus-standard. If the soil phosphorus
levels in a region are very high, the CAFO would be prohibited from
applying any manure or wastewater. EPA believes that this will improve
water quality in some production regions where the amount of phosphorus
in animal manure and wastewater being generated exceeds crop needs and
has resulted in a phosphorus build-up in the soils in those regions.
Evidence of manure-phosphorus generation in excess of crop needs is
reported in analyses conducted by USDA. Other data show that larger
operations tend to have less land to land apply manure nutrients that
are generated on-site. EPA believes that each of the co-proposed
alternatives establish a regulatory threshold that ensures that those
operations with limited land on which to apply manure are permitted.
Under the three-tier structure, EPA is proposing risk conditions that
would require nutrient management (i.e., PNPs) at operations with 300
to 1,000 AU. In addition, EPA is proposing under one co-proposed option
to require letters of certification be obtained from off-site
recipients of CAFO manure. Operations that are not defined as CAFOs,
but that are determined to be a ``significant contributor of
pollution'' by the permit authority, may be designated as CAFOs.
EPA is proposing a method for assessing whether phosphorus-based
application is necessary that is consistent with USDA's policy on
nutrient management. In all other areas, a nitrogen-based application
rate would apply. EPA's proposal grants flexibility to the states in
determining the appropriate basis for land application rates. EPA will
continue to work with USDA to evaluate appropriate measures to
distinguish proper agricultural use of manure.
Co-Permitting. The Panel reviewed EPA's consideration of requiring
corporate entities that exercise substantial operational control over a
CAFO to be co-permitted. The Panel did not reach consensus on this
issue. The Panel was concerned that any co-permitting requirements may
entail additional costs and that co-permitting cannot prevent these
costs from being passed on to small operators, to the extent that
corporate entities enjoy a bargaining advantage during contract
negotiations. The Panel thus recommended that EPA carefully consider
whether the potential benefits from co-permitting warrant the costs
particularly in light of the potential shifting of those costs from
corporate entities to contract growers. The Panel also recommended that
if EPA does require co-permitting in the proposed rule, EPA consider an
approach in which responsibilities are allocated between the two
parties such that only one entity is responsible for compliance with
any given permit requirement. This would be the party that has primary
control over that aspect of operations. Flexibility could also be given
to local permit writers to determine the appropriate locus of
responsibility for each permit component. Finally, the Panel
recommended that if EPA does propose any form of co-permitting, it
address in the preamble both the environmental benefits and any
economic impacts on small entities that may result and request comment
on its approach. If EPA does not propose a co-permitting approach, the
Panel recommended that EPA discuss the strengths and weaknesses of this
approach and request comment on it.
EPA is proposing in the rule to clarify that co-permitting is
appropriate where a corporate or other entity exercises substantial
operational control over a CAFO. Data show that some corporations
concentrate growers geographically, thus producing a high concentration
of nutrients over a limited area. EPA is leaving to the States
decisions on how to structure co-permitting. A discussion of the
strength and weaknesses of co-permitting is contained in Section
VII.C.5 with several solicitations of comment. EPA is also soliciting
comment on an Environmental Management System as a sufficient program
to meet co-permitting requirements. Please refer to Section VII.C.5 for
further discussion of Environmental Management Systems.
CNMP Preparer Requirements. The Panel reviewed EPA's consideration
of requiring permittees to have CNMPs (Comprehensive Nutrient
Management Plans) developed by certified planners. The Panel
recommended that EPA work with USDA to develop low cost CNMP
development services or allow operators to write their own plans. The
Panel was concerned about the cost of having a certified planner
develop the plans and urged EPA to continue to coordinate with other
federal, state and local agencies in the provision of low-cost CNMP
development services, and should facilitate operator preparation of
plans by providing training, guidance and tools (e.g., computer
programs).
EPA is proposing that CAFOs, regardless of size, have certified
Permit Nutrient Plans (PNPs) that will be enforceable under the permit.
The proposal states that USDA's Technical Guidance for Developing CNMPs
may be used as a template for developing PNPs. EPA believes that USDA
documentation and standards will be appropriate for use as the primary
technical references for developing PNPs at CAFOs. In the proposal, EPA
has identified certain practices that would be required elements of
PNPs in order to protect surface water from CAFO pollutant discharges.
These practices are consistent with some of the practices recommended
in USDA's CNMP guidance; however, the PNP would not need to include all
of the practices identified in the USDA guidance. As an enforceable
part of the permit, the PNP would need to be written either by a
certified planner or by someone else and reviewed and approved by a
certified planner. EPA believes it is essential that the plans be
certified by agriculture specialists because the permit writer will
likely rely to a large extent on their expertise. The plans would need
to be site specific and meet the requirements outlined in this rule.
EPA is continuing to coordinate with other regulatory agencies and with
USDA on the development of these proposed requirements. EPA has
concluded that development of the PNP is affordable to small businesses
in these sectors and will improve manure management and lead to cost
savings at the CAFO. EPA's economic analysis is provided in Section X.J
of this preamble. More detailed information on the cost to develop a
PNP is in the Development Document.
General vs. Individual Permits. The Panel reviewed EPA's
consideration of requiring individual permits for CAFOs that meet
certain criteria, or increasing the level of public involvement in
general permits for CAFOs. The Panel recommended that EPA not expand
the use of individual permits for operations with less than 1,000 AU.
EPA believes that individual permits may be warranted under certain
conditions such as extremely large operations, operations with a
history of compliance problems, or operations in environmentally
sensitive areas. Accordingly, EPA is co-proposing two options. In one
option, each State develops its own criteria, after soliciting public
input, for determining which CAFOs would need to have individual rather
than general permits. EPA is also coproposing an option that would
establish a national criteria for issuing individual permits. The
criteria identifies a threshold that represents the largest operations
in each sector. (See Section XII for a detailed discussion.)
Immature Animals. The Panel reviewed EPA's consideration to include
immature animals for all animal types in determining the total number
of
[[Page 3126]]
animal units at a CAFO. The Panel recommended that EPA count immature
animals proportionally to their waste generation. EPA is proposing to
continue to account for only the mature animals at operations where all
ages of animals are maintained (mostly dairy and hog operations). Once
an operation is covered by the existing regulations, however, all
manure and wastewater generated by immature animals that are confined
at the same operation with mature animals would also be subject to the
requirements. EPA is proposing to maintain this requirement because all
young animals are not always confined and immature populations vary
over time, whereas the mature herd is of a more constant size.
Furthermore, the exclusion of immature animals adds to the simplicity
we are seeking in this rulemaking. However, EPA is proposing to include
immature animals as subject to the regulations only in stand-alone
nursery pig and heifer operations. For stand-alone nursery pig
operations, EPA is proposing to account for immature animals
proportionate to their waste generation, as discussed in Section VIII.
Stand-alone heifer operations are included under the beef subcategory
and are subject to the proposed regulations if they confine more than
500 heifers (two-tier) or more than 300 AU, under certain conditions
(three-tier).
e. Other Recommendations. Benefits. The Panel recommended that the
EPA evaluate the benefits of the selected regulatory options and that
EPA carefully evaluate, in a manner consistent with its legal
obligations, the relative costs and benefits (including quantified
benefits to the extent possible) of each option in order to ensure that
the options selected are affordable (including to small farmers), cost-
effective, and provide significant environmental benefits. EPA has
conducted an extensive benefit analysis of all the options and
scenarios considered. The findings of the benefit analysis are found in
Section XI of this report. More detailed information is provided in the
Benefits Analysis. Section X.I presents a comparison of the annualized
compliance costs and the estimated monetized benefits.
Estimated Compliance Costs. The Panel recommended that EPA continue
to refine the cost models and consider additional information provided.
EPA has continued to refine the cost models and has reviewed all
information provided to help improve the accuracy of the models. A
summary of EPA's cost models is provided in Section X of this preamble.
More detailed information is provided in the Economic Analysis and
Development Document provided in the rulemaking record.
Public Availability of CNMP. The Panel urged EPA to consider
proprietary business concerns when determining what to make publicly
available. To the extent allowed under the law, EPA should continue to
explore ways to balance the operators' concerns over the
confidentiality of information that could be detrimental if revealed to
the operators' competitors, with the public's interest in knowing
whether adequate practices are being implemented to protect water
quality. EPA is not requiring CAFOs to submit the PNPs to the permit
authority. However, EPA is proposing that the PNPs must be available
upon the request of States and EPA. The agencies would make the plans
available to the public on request. EPA is proposing to require the
operator of a permitted CAFO to make a copy of the PNP cover sheet and
executive summary available for public review. EPA is also requesting
comment as to whether CAFOs should be able to claim these elements of
the PNP as confidential business information and withhold those
elements of the PNP from public review on that basis, or alternately,
that whether other portions of the PNP should be made available as
well.
Dry Manure. The Panel asked EPA to consider the least costly
requirements for poultry operations with dry manure management systems.
The Panel recommended that in evaluating potential requirements for dry
manure poultry operations, EPA consider the effects of any such
requirements on small entities. EPA is not mandating a specific storage
technology or practice, but is proposing a zero discharge performance
standard and a requirement that poultry operations develop and
implement a PNP. EPA is also proposing that certain monitoring and
recordkeeping requirements would be appropriate. EPA's economic
analysis is provided in Section X.J of this preamble. More detailed
cost information is provided in the Development Document.
Coordination with State Programs. The Panel recommended that EPA
consider the impact of any new requirements on existing state programs
and include in the proposed rule sufficient flexibility to accommodate
such programs where they meet the minimum requirements of federal NPDES
regulations. The Panel further recommended that EPA continue to consult
with states in an effort to promote compatibility between federal and
state programs. EPA has consulted with states. There were seven states
represented on the CAFO workgroup (see Section XII.G.1). In addition,
EPA asked for comment on the proposed options from nine national
associations that represent state and local government officials. (See
Section XIII.G.) In conducting its analyses for this rulemaking, EPA
accounted for requirements under existing state programs. A summary of
EPA's estimated costs to the NPDES Permitting Authority are presented
in Section X.G.1 and Section XIII.B.
XIII.Administrative Requirements
A. Executive Order 12866: ``Regulatory Planning and Review''
Under Executive Order 12866 [58 FR 51735, October 4, 1993], the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.''
It has been determined that this proposed rule is a ``significant
regulatory action'' under the terms of Executive Order 12866. As such,
this action was submitted to OMB for review. Changes made in response
to OMB suggestions or recommendations will be documented in the public
record.
B. Regulatory Flexibility Act (RFA) as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis for any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
[[Page 3127]]
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
The RFA provides default definitions for each type of small entity.
It also authorizes an agency to use alternative definitions for each
category of small entity, ``which are appropriate to the activities of
the agency'' after proposing the alternative definition in the Federal
Register and taking comment. 5 U.S.C. Sec. 601(3)-(5). In addition to
the above, to establish an alternative small business definition,
agencies must consult with the Small Business Administration (SBA)
Chief Counsel for Advocacy.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) a small business based on
annual revenue standards established by SBA, with the exception of one
of the six industry sectors where an alternative definition to SBA's is
proposed; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
The definitions of small business for the livestock and poultry
industries are in SBA's regulations at 13 CFR 121.201. These size
standards were updated in September, 2000. SBA size standards for these
industries define a ``small business'' as one with average revenues
over a 3-year period of less than $0.5 million annually for dairy, hog,
broiler, and turkey operations, $1.5 million for beef feedlots, and
$9.0 million for egg operations. In today's rule, EPA is proposing to
define a ``small'' egg laying operation for purposes of its regulatory
flexibility assessments under the RFA as an operation that generates
less than $1.5 million in annual revenue. Because this definition of
small business is not the definition established under the RFA, EPA is
specifically seeking comment on the use of this alternative definition
as part of today's notice of the proposed rulemaking. EPA has consulted
with the SBA Chief Counsel for Advocacy on the use of this alternative
definition. EPA believes this definition better reflects the
agricultural community's sense of what constitutes a small business and
more closely aligns with the small business definitions codified by SBA
for other animal operations. A summary of EPA's analysis pertaining to
the alternative definition is provided in Section 9 of the Economic
Analysis. A summary of EPA's consultation with SBA is provided in the
record.
In accordance with Section 603 of the RFA, EPA prepared an initial
regulatory flexibility analysis (IRFA) that examines the impact of the
proposed rule on small entities along with regulatory alternatives that
could reduce that impact. The IRFA is available for review in the
docket (see Section 9 of the Economic Analysis). This analysis is
summarized in Section X.J of this preamble. Based on available
information, there are no small governmental operations or nonprofit
organizations that operate animal feeding operations that will be
affected by today's proposed regulations.
The majority (95 percent) of the estimated 376,000 AFOs are small
businesses, as defined by SBA. Of these, EPA estimates that there are
10,550 operations that will be subject to the proposed requirements
that are small businesses under the two-tier structure. Under the
three-tier structure, an estimated 14,630 affected operations are small
businesses. The difference in the number of affected small businesses
is among poultry producers, particularly broiler operations. Section
X.J.2 provides additional detail on how EPA estimated the number of
small businesses.
Based on the IRFA, EPA is proposing concludes that the proposed
regulations are economically achievable to small businesses in the
livestock and poultry sectors. EPA's economic analysis concludes that
the proposed requirements will not result in financial stress to small
businesses in the veal, dairy, hog, turkey, and egg sectors. However,
EPA's analysis concludes that the proposed regulations may result in
financial stress to 150 to 280 small broiler operations under the two-
tier and three-tier structure, respectively. In addition, EPA estimates
that 10 to 40 small beef and heifer operations may also experience
financial stress under each of the proposed tier structures. EPA
considers these operations--comprising about 2 percent of all affected
small CAFO businesses--may be vulnerable to closure. Details of this
economic assessment are provided in Section X.J.
EPA believes that moderate financial impacts that may be imposed on
some operations in some sectors is justified given the magnitude of the
documented environmental problems associated with animal feeding
operations, as described in Section V of this document. Section IV
further summarizes EPA's rationale for revising the existing
regulations, including: (1) address reports of continued discharge and
runoff from livestock and poultry operations in spite of the existing
requirements; (2) update the existing regulations to reflect structural
changes in these industries over the last few decades; and (3) improve
the effectiveness of the existing regulations. Additional discussion of
the objectives of and legal basis for the proposed rule is presented in
Sections I through III.
Section XIII.F summarizes the expected reporting and recordkeeping
requirements required under the proposed regulation based on
information compiled as part of the Information Collection Request
(ICR) document prepared by EPA.
Section X.J.4 summarizes the principal regulatory accommodations
that are expected to mitigate future impacts to small businesses under
the proposed regulations. Under both of the co-proposed alternatives,
EPA is proposing to eliminate the ``mixed'' animal calculation for
operations with more than a single animal type for determining which
AFOs are CAFOs. As a result, smaller operations that house a mixture of
animal types where none of these animal types independently meets the
regulatory threshold are not considered CAFOs under today's proposed
rulemaking, unless they are individually designated. Additional
accommodations are being proposed under the two-tier structure. Under
the two-tier structure, EPA is proposing to establish a regulatory
threshold that would define as CAFOs all operations with more than 500
AU. EPA is also considering a two-tier alternative that would define
all operations with more than 750 AU as CAFOs. The two-tier structure
would provide relief to small businesses since this would remove from
the CAFO definition operations with between 300 AU and 500 AU (or 750
AU) that under the current rules may be defined as CAFOs. Also, under
the two-tier structure, EPA is proposing to raise the size standard for
defining egg laying operations as CAFOs. This alternative would remove
from the CAFO definition egg operations with between 30,000 and 50,000
laying hens (or 75,000 hens) that under the current rules are defined
as CAFOs, if they utilize a liquid manure management system. Additional
information on the regulatory relief provisions being proposed by EPA
is provided in Section VII of this preamble.
As required by section 609(b) of the RFA, as amended by SBREFA, EPA
also conducted outreach to small entities and convened a Small Business
Advocacy Review Panel to obtain advice and recommendations from
representatives of the small entities that potentially would be subject
to the rule's requirements. Consistent with the
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RFA/SBREFA requirements, the Panel evaluated the assembled materials
and small entity comments on issues related to the elements of the
IRFA. A complete summary of the Panel's recommendations is provided in
the Final Report of the Small Business Advocacy Review Panel on EPA's
Planned Proposed Rule on National Pollutant Discharge Elimination
System (NPDES) and Effluent Limitations Guideline (Effluent Guidelines)
Regulations for Concentrated Animal Feeding Operations (April 7, 2000).
This document is included in the public record. As documented in the
panel report, the participants of the Small Business Advocacy Review
Panel did not identify any Federal rules that duplicate or interfere
with the requirements of the proposed regulation.
Section XII.G of this document provides a full summary of the
Panel's activities and recommendations. This summary also describes
each of the subsequent actions taken by the Agency, detailing how EPA
addressed each of the Panel's recommendations. EPA is interested in
receiving comments on all aspects of today's proposal and its impacts
on small entities.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year.
Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative, if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that today's proposed regulations contain a
Federal mandate that may result in expenditures of $100 million or more
for the private sector in any one year. Accordingly, EPA has prepared
the written statement required by section 202 of the UMRA. This
statement is contained in the Economic Analysis and also the Benefits
Analysis for the rule. These support documents are contained in the
record. In addition, EPA has determined that the rules contain no
regulatory requirements that might significantly or uniquely affect
small governments. Thus, today's rules are not subject to the
requirements of section 203 of the UMRA. Additional information that
supports this finding is provided below.
A detailed discussion of the objectives and legal basis for the
proposed CAFO regulations is presented in Sections I and III of the
preamble. A consent decree with the Natural Resources Defense Council
established a deadline of December 2000 for EPA to propose effluent
limitations for this industry.
EPA prepared several supporting analyses for the final rules.
Throughout this preamble and in those supporting analyses, EPA has
responded to the UMRA section 202 requirements. Costs, benefits, and
regulatory alternatives are addressed in the Economic Analysis and the
Benefits Analysis for the rule. These analyses are summarized in
Section X and Section XI of this preamble. The results of these
analyses are summarized below.
EPA prepared a qualitative and quantitative cost-benefit assessment
of the Federal requirements imposed by today's final rules. In large
part, the private sector, not State, local and tribal governments, will
incur the costs of the proposed regulations. Under the two-tier
structure, total annualized compliance costs to industry are projected
at $831 million (pre-tax)/$572 million (post-tax). The cost to off-site
recipients of CAFO manure is estimated at $10 million per year. Under
the three-tier structure, costs to industry are estimated at $930
million per year (pre-tax)/$658 million (post-tax), and the annual cost
to off-site recipients of manure is estimated at $11 million. This
analysis is summarized in Section X.E.1 of this preamble.
Authorized States are expected to incur costs to implement the
standards, but these costs will not exceed the thresholds established
by UMRA. Under the two-tier structure, State and Federal administrative
costs to implement the permit program are estimated to be $6.2 million
per year: $5.9 million for States and $350,000 for EPA. Under the
three-tier structure, State and Federal administrative costs to
implement the permit program are estimated by EPA at $7.7 million per
year, estimated at $7.3 million for States and $416,000 for EPA. This
analysis is summarized in Section X.G.1 of this preamble. More detailed
information is provided in the Economic Analysis. The Federal resources
(i.e., water pollution control grants) that are generally available for
financial assistance to States are included in Section 106 of the Clean
Water Act. There are no Federal funds available to defray the costs of
this rule on local governments. Since these rules do not affect local
or tribal governments, they will not result in significant or unique
impacts to small governments.
Overall, under the two-tier structure, the projected total costs of
the proposed regulations are $847 million annually. Under the three-
tier structure, total social costs are estimated at $949 million
annually.
The results of EPA's economic impact analysis show that the
percentage of operations that would experience financial stress under
each of the proposed tier structures represent 7 percent of all
affected CAFOs (Section X.F.1). This analysis is conducted without
taking into account possible financial assistance to agricultural
producers that could offset the estimated compliance costs to CAFOs to
comply with the proposed regulations, thus mitigating the estimated
impacts to these operations. Federal programs, such as USDA's
Environmental Quality Incentives Program (EQIP), and other State and
local conservation programs provide cost-share and technical assistance
to farmers and ranchers who install structural improvements and
implement farm management practices, including many of the requirements
that are being proposed today by EPA. EQIP funds are limited to
livestock and poultry operations with fewer than 1,000 animal units
(AUs), as defined by USDA, but could provide assistance to operations
with less than 1,000 AU as well as to some larger operations in the
poultry and hog sectors.
[[Page 3129]]
EPA also conducted an analysis that predicts and quantifies the
broader market changes that may result due to compliance. This analysis
examines changes throughout the economy as impacts are absorbed at
various stages of the food marketing chain. The results of this
analysis show that consumer and farm level price changes will be
modest. This analysis is summarized in Section X.F.3.
EPA does not believe that there will be any disproportionate
budgetary effects of the rules on any particular area of the country,
particular types of communities, or particular industry segments. EPA's
basis for this finding with respect to the private sector is addressed
in Section 5 of the Economic Analysis based on an analysis of community
level impact, which is summarized in Section X.G.2 of the preamble. EPA
considered the costs, impacts, and other effects for specific regions
and individual communities, and found no disproportionate budgetary
effects. EPA's basis for this finding with respect to the public sector
is available in the record.
The proposed mandate's benefits are primarily in the areas of
reduced health risks and improved water quality. The Benefits Analysis
supporting the rulemaking describes, qualitatively, many such benefits.
The analysis then quantifies a subset of the benefits and, for a subset
of the quantified benefits, EPA monetizes (i.e., places a dollar value
on) selected benefits. EPA's estimates of the monetized benefits of the
proposed regulations are estimated to range from $146 million to $165
million under the two-tier structure. Under the three-tier structure,
estimated benefits range from $163 million to $182 million annually.
This analysis is summarized in Section XI of this preamble.
EPA consulted with several States during development of the
proposed rules. Some raised concerns that the national rule would have
workload and cost implications for the State. Some States with
implementation programs underway or planned want to have their programs
satisfy the requirements of the proposed rule. Other States expressed
concerns about the loss of cost-share funds to AFOs once they are
designated as point sources. There were additional comments regarding
inconsistencies with the Unifed Strategy. See Section IX.A for a
discussion of alternative State programs, Section X.G for a discussion
of State costs and the workload analysis, Sections III.D and VII.B for
a discussion of consistency with the AFO Strategy, and Section IX.E for
a discussion of cost-share funds.
For the regulatory decisions in today's rules (allowing for the
options reflected by the co-proposal), EPA has selected alternatives
that are consistent with the requirements of UMRA in terms of cost,
cost-effectiveness, and burden. The proposal is also consistent with
the requirements of the CWA. This satisfies section 205 of the UMRA. As
part of this rulemaking, EPA had identified and considered a reasonable
number of regulatory alternatives. (See Section VII for NPDES Scenarios
and Section VIII for effluent guidelines technology options). Section
X.E compares the costs across these alternatives. Section X.H provides
a cost-effectiveness analysis that shows that the proposed BAT Option
is the most cost-effective of these alternatives. Sections VII and VIII
of the preamble are devoted to describing the Agency's rationale for
each regulatory decision. Section IV of this document further
summarizes EPA's rationale for revising the existing regulations.
D. Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks''
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under E.O. 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health and safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This proposed rule is subject to E.O. 13045 because it is an
economically significant regulatory action as defined by E.O. 12866,
and we believe that the environmental health or safety risks addressed
by this action have or may have disproportionate effects on children.
Accordingly, we have evaluated, to the extent possible, the
environmental health or safety effects of pollutants from CAFOs on
children. The results of this evaluation are contained in sections V.C
and XI.B of the preamble as well as the Environmental Assessment and
Benefits Assessment (these documents have been placed in the public
docket for the rule).
The Agency believes that the following pollutants have or may have
a disproportionate risk to children: nitrates, pathogens, trace metals
such as zinc, arsenic, copper, and selenium, pesticides, hormones, and
endocrine disruptors. These health risks are summarized in Section V.C
and described in detail in the Environmental Assessment. With the
exception of nitrates in drinking water, the Agency has very little of
the detailed information necessary to conduct an assessment of these
risks to children for these pollutants. The Agency solicits risk and
exposure data and models that could be used to characterize the risks
to children's health from CAFO pollutants.
There is evidence that infants under the age of six months may be
at risk from methemoglobinemia caused by nitrates in private drinking
water wells, typically when ingesting water with nitrate levels higher
than 10 micrograms/liter. The Agency only has enough information to
determine that a chronic dose of 10 micrograms/liter may cause an
adverse health effect, but there is no dose-response function for
nitrates, nor does the Agency have other information necessary to
conduct a detailed health risk assessment (for example, the actual
number of cases of methemoglobinemia are not reported and are thus
highly uncertain). Instead, the Agency has estimated the reduction in
the number of households that will be exposed to drinking water with
nitrate levels above 10 micrograms/liter in Chapter 8 of the Benefits
Assessment (noting that the Agency does not have information on the
number of households exposed to nitrates that also have infants). The
Agency assumes that nitrate levels lower than 10 micrograms/liter pose
no risk of methemoglobinemia.
The Agency estimates that there are approximately 13.5 million
households with drinking water wells in counties with animal feeding
operations. Of these, the Agency estimates that approximately 1.3
million households are exposed to nitrate levels above 10 micrograms/
liter. The Agency further estimates that approximately 166,000
households would have their nitrate levels brought below 10 micrograms/
liter under the two-tier structure. Approximately 161,000 households
would have their nitrate levels brought below 10 micrograms/liter under
the three-tier structure. Furthermore, the Agency estimates that
options more stringent than those proposed would have small incremental
changes in pollutant loadings to groundwater (see the Technical
Development Document). Thus, the Agency expects the number of
additional households protected from nitrate levels greater than 10
micrograms/liter would be negligible under more stringent options. The
Agency therefore does not believe that requirements more stringent than
those
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proposed would provide meaningful additional protection of children's
health risks from methemoglobinemia. Furthermore, the Agency is only
able to regulate groundwater quality through NPDES permits if there is
a direct hydrologic connection to surface water (see Section
VII.C.2.j).
Methemoglobinemia is only one children's health risk caused by CAFO
pollutants, as discussed above, in Section V.C, and elsewhere in the
record. It was the only risk to children's health which the Agency was
able to quantify (if incompletely) in any way. The options considered
by the Agency, as well as the rationale for the proposed options, are
discussed in detail in Sections VII and VIII of this preamble. To the
extent possible under the authority of the CWA, EPA chose options that
were protective of environmental and human health, including children's
health. These option selections were based on the best risk assessments
possible given the limited data available. The public is invited to
submit or identify peer-reviewed studies and data, of which the Agency
might not be aware that assessed results of early life exposure to
nitrates or any other pollutant discharged by CAFOS.
E. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments nor imposes substantial direct
compliance costs on them. First, there are currently no tribal
governments that have been authorized to issue NPDES permits. Thus,
there will be no burden to tribal governments. Second, few CAFO
operations are located on tribal land. Therefore, compliance costs to
tribal communities will not be significant. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
However, EPA has let tribal communities know about this rulemaking
through a presentation of potential rule changes at the National
Environmental Justice Advisory Committee meeting in Atlanta in June,
2000 and through notices in tribal publications.
F. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1989.01) and a copy may be obtained from Sandy Farmer by mail
at Collection Strategies Division; U.S. Environmental Protection Agency
(2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460, by email at
[email protected], or by calling (202) 260-2740. A copy may
also be downloaded off the internet at http://www.epa.gov/icr.
Today's proposed rule would require all animal feeding operations
(AFOs) that meet the proposed CAFO definition to apply for a permit and
develop a certified permit nutrient plan and to implement that plan.
Implementation of the plan includes the cost of recording animal
inventories, manure generation, field application of manure and other
nutrients (amount, rate, method, incorporation, dates), manure and soil
analysis compilation, crop yield goals and harvested yields, crop
rotations, tillage practices, rainfall and irrigation, lime
applications, findings from visual inspections of feedlot areas and
fields, lagoon emptying, and other activities on a monthly basis.
Records may include manure spreader calibration worksheets, manure
application worksheets, maintenance logs, and soil and manure test
results.
The average annual burden for this rule covering both the private
and public sector for the three-tiered option is 1.6 million hours and
$37 million annually; for the two-tiered option, burden is 1.2 million
hours annually at $29 million annually. These values do not account for
State programs that may already be requiring some of the recordkeeping
and reporting requirements already. Thus, this burden would be an
overestimate to the degree that some States already require such
actions.
For the three-tiered structure, the average annual CAFO burden is
estimated to be 80 hours with the frequency of responses based on
requirements ranging from two times per year to once every five years.
There are 19,519 likely CAFO respondents and 28 states. Under this
scenario, the state annual average burden is estimated at 3,214 hours.
The average annual operation and maintenance costs are estimated at
$4.3 million for CAFOs and $60,000 for States; labor costs are
estimated at $28.9 million for CAFOs and $2.6 million for States;
capital costs are estimated at $1.6 million for CAFOs and $0.0 for
States.
For the two-tiered structure, CAFO average annual burden per
respondent is 81 hours and the State burden is 2,500 hours. There are
15,015 likely CAFO respondents and 28 states. The 28 state count is an
average over three years assuming that half the delegated states will
have a program established in year one, half in year 2 and all in year
three. Average annual operation and maintenance costs are $3.3 million
for CAFOs and $60,000 for States; labor costs are $22.6 million for
CAFOs and $2.0 million for States; capital costs are $1.3 million for
CAFOs and $0.0 for States.
The burden required for this rulemaking will allow EPA to determine
whether a CAFO operator is monitoring his waste management system in an
environmentally safe way. This data will be used to assess compliance
with the rule and help determine enforcement cases. The Permit Nutrient
Plan data requirements ensure that the CAFO owner has established the
appropriate application rate for their fields on which they spread
manure; is providing adequate operation and maintenance for the storage
area and feedlot, and is meeting the requirements to keep agriculture
waste out of the Nation's waters. The information requested herein is
mandatory (33 U.S.C. 1318 (Section 308 of the Clean Water Act)). Twqhe
Agency is requesting comment in this proposal on how much, if any of
this information should be confidential business information.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, disclose or provide
information to or for a Federal
[[Page 3131]]
agency. Burden estimates include the time needed to review
instructions; develop, acquire, install, and utilize technology and
systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing and
providing information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information. Additional burden has been
estimated for off-site recipients who must certify that they are
applying manure in an appropriate manner.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless the collection form
displays a currently valid OMB control number. The OMB control numbers
for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter
15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, Collection Strategies Division; U.S. Environmental Protection
Agency (2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460; and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., N.W., Washington, DC 20503, marked
``Attention: Desk Officer for EPA.'' Include the ICR number in any
correspondence. Since OMB is required to make a decision concerning the
ICR between 30 and 60 days after [January 12, 2001 Federal Register], a
comment to OMB is best assured of having its full effect if OMB
receives it by February 12, 2001. The final rule will respond to any
OMB or public comments on the information collection requirements
contained in this proposal.
G. Executive Order 13132: ``Federalism''
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have Federalism implications. It will
not have substantial direct effects on the States, on this relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. EPA estimates that the average
annual impact on all authorized States together is $6.0 million. EPA
does not consider an annual impact of $6 million on States a
substantial effect. In addition, EPA does not expect this rule to have
any impact on local governments.
Further, the revised regulations would not alter the basic State-
Federal scheme established in the Clean Water Act under which EPA
authorizes States to carry out the NPDES permitting program. EPA
expects the revised regulations to have little effect on the
relationship between, or the distribution of power and responsibilities
among, the Federal and State governments. Thus, Executive Order 13132
does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy, EPA consulted with representatives of State and local
governments in developing this proposed rule. EPA sent a summary
package outlining the proposed changes to the State and local
associations that represent elected officials including the National
Governor's Association, National Conference of State Legislators, U.S.
Conference of Mayors, Council of State Governments, International City/
County Management Association, National Association of Counties,
National Association of Towns and Townships, and County Executives of
America. In addition, as discussed in Section XII.F., there was State
representation on the CAFO Regulation Workgroup.
EPA received four responses from these national associations, the
National Governor's Council, the National League of Cities, the
National Council of State Legislators and the National Association of
Conservation Districts. EPA also received a letter from the Governor of
Delaware and the Delaware Congressional delegation. The National
Governor's Association (NGA), the National League of Cities (NLC) and
the National Association of Conservation Districts (NACD) disagree with
EPA's assessment that the rule would have minimal impact on the States.
Except for this issue, the NLC supported the rule package especially
the coverage of poultry and immature animals, the clarification of
stormwater runoff exemptions, the lower threshold, and the seven
strategic issues EPA listed to address pollution from animal feeding
operations. NLC encouraged EPA to exercise its authority to issue NPDES
permits where a delegated State has not taken appropriate action.
NGA and Delaware want the flexibility to design functionally
equivalent programs. NGA and NACD expressed concern regarding lowering
the threshold as this would bring in more entities to be permitted and
the States already have a permit backlog. In addition, they are
concerned that 319 and EQIP funds will no longer be available to
operations that are defined as CAFOs. Another concern is the
elimination of the 25 year/24 hour exemption. NGA comments address the
burden on the State permitting authority (backlog issue) and the
unfairness of facilities that work with states to eliminate discharges
would still have to get a permit. On the issue of adequate public
involvement in general permits as well as the site specific
requirements of the Effluent Limitation Guideline, NGA is concerned the
advantage of general permits as a time saver for the states may be
lost. In response to NGA's concerns, EPA met with NGA and discussed the
package and its potential impacts. EPA, also upon request, met with the
National Association of State Legislators to review the package and
answer their questions. (See Section IX for discussion of alternative
State programs. See Section VII.B for a discussion of rule scope. See
Section X.G for costs to permitting authorities. See Section VII.C for
discussion of the 25 year/24 hour storm exemption. See Section VII.E
for discussion of public involvement.)
The primary concern raised by the States represented on the CAFO
Regulation Workgroup was to clarify and simplify the rules to make them
more understandable and easier to implement. Many of the proposed
changes were made with this objective in mind. Also, the States wanted
EPA to accept functionally equivalent State programs. To address this
concern, as stated in the Joint Unified USDA/EPA AFO Strategy (see
``Strategic Issue #3''), where a State can demonstrate that its program
meets the requirements of an NPDES program consistent with 40 CFR Part
123, EPA is proposing to amend the current NPDES authorization to
recognize the State program. In addition, States were concerned about
the cost of implementing any changes to the program. EPA believes the
costs to the States for implementing this
[[Page 3132]]
proposed rule will not be high. EPA is assuming that all States will
adopt the sample general permit. Some States already have a general
permit that would just need to be modified.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
H. Executive Order 12898: ``Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations''
The requirements of the Environmental Justice Executive Order are
that* * *'' EPA will * * * review the environmental effects of major
Federal actions significantly affecting the quality of the human
environment. For such actions, EPA reviewers will focus on the spatial
distribution of human health, social and economic effects to ensure
that agency decisionmakers are aware of the extent to which those
impacts fall disproportionately on covered communities.'' EPA has
determined that this rulemaking is economically significant. However,
the Agency does not believethis rulemaking will have a disproportionate
effect on minority or low income communities. The proposed regulation
will reduce the negative affects of CAFO waste in our nation's waters
to benefit all of society, including minority communities.
The National Environmental Justice Advisory Committee (NEJAC)
submitted a set of recommendations to EPA regarding CAFOs that included
recommendations to be addressed in revisions to EPA's regulations for
CAFO's. Each recommendation is addressed below.
The NEJAC recommended that EPA ``promulgate new, effective
regulations that set uniform, minimum rules for all AFOs and CAFOs in
the United States.'' In response, EPA believes that today's proposed
rule revisions would represent new, uniform and effective requirements
for CAFOs (AFOs by definition are not point sources and so would not be
subject to today's proposed CAFO rules).
The Committee requested that EPA impose a zero discharge standard
on runoff from land application of CAFO wastes. For the reasons
described in section VIII. C.3., BAT Options Considered, of today's
notice, EPA believes it is not appropriate to set a technology-based
standard at this level with respect to land application runoff.
NEJAC requested that EPA prohibit or restrict the siting of
facilities in certain areas such as flood plains. Siting of private
industry is primarily a local issue and should be addressed at the
local level. Discharge limitations proposed today should, however,
discourage operators from locating in flood plains. Proposed
requirements for swine, veal and poultry CAFOs would require no
discharge under any circumstances. Beef and dairy CAFOs would have to
comply with zero discharge except in the event of a chronic or
catastrophic storm which exceeds the 25 year, 24 hour storm. If
existing operations are located in flood plains it is in their best
interest to divert uncontaminated storm water away from their
production area to avoid inundation of the production area and
potential breaching of their manure storage system during flood events.
EPA proposes to prohibit manure application to crop or pasture land
within 100 feet of surface waters, tile intake structures, agricultural
drainage wells, and sinkholes which will also minimize the risk of
discharge under flood conditions.
NEJAC requested monitoring requirements in the rule. EPA has
proposed an appropriate set of monitoring requirements to be included
in CAFO permits (See section XIII of today's notice).
NEJAC also requested public notification of the construction or
expansion of CAFOs or issuance of permits. Under today's proposed
rules, EPA would require individual permits, which are subject to
individual public notice and comment, for facilities that are located
in an environmentally sensitive area; have a history of operational or
compliance problems; are an exceptionally large or significantly
expanding facility; or where the Director is aware of significant
public concern about water quality impacts from the CAFO. For all other
facilities that are to be covered by general permits, for purposes of
public notice, today's proposal would require the permitting authority
to publish on a quarterly basis its receipt of Notices of Intent (NOIs)
submitted by CAFOs.
NEJAC further recommended that EPA require States and tribes to
develop inspection programs that allow unannounced inspections of all
CAFOs and to make these programs available for public comment. This
concern is already addressed by existing Clean Water Act requirements.
Specifically, under the Act, EPA may conduct unannounced inspections,
and States must have the authority to inspect to the same extent as
EPA. Although there is no specific requirement that State inspection
plans be made publicly available, they may be available under State
law.
NEJAC requested that EPA require the adoption of non-lagoon
technology. Section XIII of today's notice describes the control
technologies that EPA has investigated and which ones EPA proposes to
identify in these regulations as the best available technologies. As
described in Section XIII, this proposal finds that it would not be
appropriate to prohibit the use of lagoon technologies.
NEJAC recommended requiring States and tribes to implement
remediation programs for phased-out CAFO operations. In today's
proposed rule, EPA proposes to require a CAFO to remain under permit
coverage until it no longer has the potential to discharge manure or
associated wastewaters.
Finally, NEJAC recommended that EPA impose stringent penalties on
violating facilities. The Clean Water Act provides authority to subject
violators to substantial penalties. The issue of which penalties are
appropriate to impose in individual situations is beyond the scope of
this rulemaking.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, (Pub. L. No. 104-113 Sec. 12(d) 15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standard bodies. The NTTAA directs EPA
to provide Congress, through the Office of Management and Budget (OMB),
explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This rulemaking involves technical standards. The rule requires
operations defined as CAFOs in the beef and dairy subcategories to
monitor groundwater for total dissolved solids (TDS), total chlorides,
fecal coliform, total coliform, ammonia-nitrogen and TKN. EPA performed
a search to identify potentially voluntary consensus standards that
could be used to measure the analytes in today's proposed guideline.
EPA's search revealed that consensus standards exist and are already
specified in the tables at 40 CFR Part 136.3 for measurement of many of
the analytes. All pollutants in today's proposed rule have voluntary
consensus
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methods. EPA welcomes comments on this aspect of the proposed
rulemaking and, specifically, invites the public to identify
potentially-applicable voluntary consensus standards and to explain why
such standards should be used in this regulation.
XIV. Solicitation of Comments
A. Specific Solicitation of Comment and Data
EPA solicits comments on all aspects of today's proposal. In
addition, throughout this preamble, EPA has solicited specific comments
and data on many individual topics. The Agency reiterates its interest
in receiving comments and data on the following issues:
1. EPA solicits comment on the use of a two tier structure based on
lowering the existing 1,000 animal unit threshold to 500 for
determining which AFOs are defined as CAFOs, and the elimination of the
existing 300 to 1,000 animal unit category. EPA also solicits comment
on the effect of a 500 AU threshold on the horse, sheep, lamb and duck
sectors, as well as on the use of a 750 animal unit threshold for all
sectors.
2. EPA solicits comment on the use of a three tier structure,
including the proposed criteria that could result in an AFO in the
middle Group being defined as a CAFO and on whether to use different
criteria that provide more flexibility than those in today's proposal.
3. EPA solicits comment on revising the requirements for
designation to eliminate the direct contact and man-made device
criteria from the designation requirements of the CAFO regulations, and
allow the designation of CAFOs by EPA in States with NPDES authorized
programs. EPA also solicits comment on whether or not to eliminate the
``on-site'' requirement for conducting inspections and, instead, allow
other forms of site-specific information gathering to be used.
4. EPA solicits comment on its proposal to clarify the definition
of an AFO to clearly distinguish feedlots from pasture land and clarify
coverage of winter feeding operations.
5. EPA solicits comment on eliminating the use of the term ``animal
unit'' or AU and the mixed animal calculation in determining which AFOs
are CAFOs.
6. EPA solicits comment on removing the 25-year, 24-hour storm
event exemption from the definition of a CAFO.
7. EPA solicits comment on the proposal to remove the limitation on
the type of manure handling or watering system employed at poultry
operations (i.e., subjecting dry poultry operations to the CAFO
regulations). With regard to a two tier structure, EPA solicits comment
on establishing the threshold for poultry operations at 50,000 birds or
greater.
8. EPA solicits comment on including immature swine and dairy
cattle, or heifers, when confined apart from the dairy, for purposes of
defining potential CAFOs. With regard to a two tier structure, EPA
solicits comment on establishing the threshold limit for immature swine
(weighing 55 pounds or less) at 5,000.
9. EPA solicits comment on requiring, under a two tier structure,
all CAFOs to apply for a NPDES permit and issuing permits to those
operations that cannot demonstrate they have no potential to discharge
pollutants.
10. EPA solicits comment on requiring, under a three tier
structure, all AFOs from 300 AU to 1000 AU to certify they do not meet
threshold conditions, receive a determination they have no potential to
discharge, or apply for a permit.
11. EPA solicits comments on the proposed co-permitting provisions
and the factors for determining substantial operational control. EPA
solicits comment on whether there are additional factors that indicate
substantial operational control which should be included in the
regulation. EPA also requests comment on how to structure the co-
permitting provisions of the rulemaking to achieve the intended
environmental outcome without causing negative impacts on growers. EPA
requests comments on its cost passthrough assumptions in general and as
they relate to the analysis of processor level impacts under the
proposed co-permitting requirements.
12. EPA solicits comment on addressing discharges to ground water
with a direct hydrological connection to surface water. EPA requests
comment on how a permit writer might identify CAFOs at risk of
discharging to surface water via ground water. EPA is also requesting
comment on the proposal to place the burden on the permit applicant to
provide a hydrologist's statement when rebutting the presumption that a
CAFO has potential to discharge to surface water via direct
hydrological connection with ground water. EPA solicits comment on the
assumption that 24 percent of the affected operations have a hydrologic
connection to surface waters.
13. EPA solicits comment on the definition of CAFO including the
production area and land application area, and on the proposed
requirements that would subject land application to specified permit
requirements.
14. EPA solicits comment on defining the agricultural storm water
discharge exemption to apply only to those discharges which occurred
despite the implementation of all the practices required by today's
proposal at CAFO land application areas. EPA also requests comments on
the alternative applications of the agricultural storm water discharge
exemption discussed.
15. EPA solicits comment on requiring a certification from off-site
recipients of CAFO-generated manure that such manure is being land
applied according to proper agricultural practices or, the alternative
of tracking such off-site transfers through record keeping and
providing information to the recipients regarding proper management.
16. EPA solicits comment on restricting the land application of
manure to those conditions where it serves an agricultural purpose and
does not result in pollutant discharges to waters of the U.S.
(potentially including prohibiting land application at certain times or
using certain methods).
17. EPA solicits comment on requiring CAFO operators to develop and
implement a PNP for managing manure and wastewater at both the
production area and land application area.
18. EPA invites comment on today's proposal to define PNPs as the
effluent guideline subset of elements addressed in the CNMP. EPA is
especially interested in knowing whether PNP is the best term to use to
refer to the regulatory components of the CNMP, and whether EPA's
explanation of both the differences and relationship between these two
terms (PNP and CNMP) is clear and unambiguous. EPA is also soliciting
comments on whether a PNP with the addition of erosion control
practices would be sufficient additional controls to prevent runoff.
EPA further requests comment on the proposal to require that PNPs be
developed, or reviewed and modified, by certified planners, as well as
on conditions, such as no changes to the crops, herd or flock size,
under which rewriting the PNP would not be necessary and therefore,
would not require the involvement of a certified planner.
19. EPA requests comment on the public availability of PNPs,
including whether it is proper to determine that the PNPs must be
publicly available under CWA Section 402(j) and under CWA Section 308
as ``effluent data,'' or whether only a portion of PNP information
should be publically
[[Page 3134]]
available. EPA solicits comment on today's proposal that the operator
of a permitted CAFO must make a copy of the PNP cover sheet and
executive summary available for public review. EPA is also requesting
comment on whether CAFOs should be able to claim these elements of the
PNP as confidential business information and withhold those elements of
the PNP from public review on that basis, or alternately, that whether
other portions of the PNP should be made available as well. EPA also
requests comment on the proposal to require new facilities seeking
coverage under a general permit, as well as applicants for individual
permits, to submit a copy of the PNP to the permit authority along with
the NOI or permit application, and whether, for individual permits, the
PNP should be part of the public notice and comment process along with
the permit.
20. EPA is requesting public comment on the suitability of
requiring erosion control as a special condition of a NPDES permit to
protect water quality from sediment eroding from fields where CAFO
manure is applied to crops. If erosion control is desirable, EPA is
soliciting comment as to which approach would be the most cost-
efficient. EPA solicits comment and data on the costs and benefits of
controlling erosion and whether erosion control should be a required
component of PNPs.
21. EPA solicits comment on requiring an operator of a permitted
CAFO that ceases to be a CAFO to maintain permit coverage until his or
her facility is properly closed.
22. EPA requests comment on whether the procedures discussed
regarding general permits are adequate to ensure public participation
or whether individual permits should be required for any of the
categories of facilities discussed above. Specifically, EPA requests
comment on whether individual permits should be required for (a)
Facilities over a certain size threshold; (b) all new facilities; (c)
facilities that are significantly expanding; (d) facilities that have
historical compliance problems; or (e) operations that are located in
areas with significant environmental concerns.
23. EPA solicits comment on the applicability of the proposed
revised effluent limitations guidelines, including the thresholds under
the two tier and three tier structure, the inclusion of veal production
as a new subcategory, and the changes regarding applicability to
chickens, mixed animals, and immature swine and dairy. EPA also
requests comment on another three-tier option for defining a CAFO under
which the effluent guidelines proposed today would not be applicable to
facilities with 1,000 AU or less.
24. EPA solicits comment on the proposed revised effluent
limitations guidelines for CAFOs, specifically today's proposed
requirements on the land application of manure and wastewater. EPA
solicits comment on the proposal to allow States to establish the
appropriate phosphorus-based method to be used as the basis for the
land application rate at CAFOs.
25. EPA requests comment on its analysis and on its proposed
determination that Option 3 is economically achievable as BAT for the
beef and dairy sectors. In addition, consistent with its intention at
the time of the SBREFA outreach process, EPA requests comment on
retaining the 25-year, 24-hour storm design standard (and thus basing
BAT on Option 2) for the swine, veal and poultry subcategories.
26. EPA solicits comment on the assumptions used for estimating the
compliance cost impacts for feedlots to implement each of the model
technologies considered for the proposed standards. EPA also solicits
comment on the proposal's impact on small businesses.
27. EPA solicits comment on the new source option for dairies that
would prohibit any wastewater discharge from the production area.
Specifically whether this option is technically feasible, since it
assumes that all animals in confinement will be maintained under roof.
28. EPA solicits comment on establishing BAT requirements on
pathogens. Specifically on the appropriate technologies that will
reduce pathogens and the estimated cost for these technologies.
B. General Solicitation of Comment
EPA encourages public participation in this rulemaking. EPA asks
that comments address any perceived deficiencies in the record
supporting this proposal and that suggested revisions or corrections be
supported by data.
EPA invites all parties to coordinate their data collection
activities with the Agency to facilitate mutually beneficial and cost-
effective data submissions. Please refer to the FOR FURTHER INFORMATION
section at the beginning of this preamble for technical contacts at
EPA.
List of Subjects
40 CFR Part 122
Administrative practice and procedure, confidential business
information, Hazardous substances, Reporting and recordkeeping
requirements, water pollution control.
40 CFR Part 412
Environmental protection, Feedlots, livestock, waste treatment and
disposal, Water pollution control.
Dated: December 15, 2000.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 122 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Amend Sec. 122.21 by adding paragraphs (i)(1)(iv) through (ix)
to read as follows:
Sec. 122.21 Application for a permit (applicable to State programs,
see Sec. 123.25).
* * * * *
(i) * * *
(1) * * *
(iv) Either a copy of the cover sheet and executive summary of the
permittee's current Permit Nutrient Plan that meet the criteria in 40
CFR 412.37(b) and is being implemented, or draft copies of these
documents together with a statement on the status of the development of
its Permit Nutrient Plan. If the CAFO is subject to 40 CFR part 412 and
draft copies are submitted, they must, at a minimum, demonstrate that
there is adequate land available to the CAFO operator to comply with
the land application provisions of part 412 of this chapter, if
applicable, or describe an alternative to land application that the
operator intends to implement.
(v) Acreage available for application of manure and wastewater;
(vi) Estimated amount of manure and wastewater that the applicant
plans to transfer off-site;
(vii) Name and address of any person or entity that owns animals to
be raised at the facility, directs the activity of persons working at
the CAFO, specifies how the animals are grown, fed, or medicated, or
otherwise exercises control over the operations of the facility;
[[Page 3135]]
(viii) Indicate whether buffers, setbacks or conservation tillage
are implemented at the facility to control runoff and protect water
quality; and
(ix) Latitude and longitude of the CAFO, to the nearest second.
3. Section 122.23 is revised to read as follows:
Sec. 122.23 Concentrated animal feeding operations (applicable to
State NPDES programs, see Sec. 123.25).
(a) Definitions applicable to this section: (1) For land on which
manure from an animal feeding operation or concentrated animal feeding
operation has been applied, the term ``agricultural storm water
discharge'' means a discharge composed entirely of storm water, as
defined in Sec. 122.26(a)(13), from a land area upon which manure and/
or wastewater has been applied in accordance with proper agricultural
practices, including land application of manure or wastewater in
accordance with either a nitrogen-based or, as required, a phosphorus-
based manure application rate.
(2) An animal feeding operation or AFO is a facility where animals
(other than aquatic animals) have been, are, or will be stabled or
confined and fed or maintained for a total of 45 days or more in any
12-month period. Animals are not considered to be stabled or confined
when they are in areas such as pastures or rangeland that sustain crops
or forage growth during the entire time that animals are present.
Animal feeding operations include both the production area and land
application area as defined below.
Option 1 for Paragraph (a)(3)
(3) Concentrated animal feeding operation or CAFO means an AFO that
either:
(i) Confines a number of animals equal to or greater than the
number specified in any one or more of the following categories. For
the purposes of determining the number of animals at an operation, two
or more AFOs under common ownership are considered to be a single AFO
if they adjoin each other or if they use a common area or system for
the disposal of wastes. Once an operation is defined as a CAFO, the
requirements of this section apply with respect to all animals in
confinement at the operation and all wastes and waste waters generated
by those animals, regardless of the type of animal.
(A) 350 mature dairy cattle;
(B) 500 veal;
(C) 500 cattle other than veal or mature dairy cattle;
(D) 1,250 swine each weighing over 25 kilograms (approximately 55
pounds);
(E) 5000 swine each weighing less than 25 kilograms (approximately
55 pounds);
(F) 250 horses;
(G) 5,000 sheep or lambs;
(H) 27,500 turkeys;
(I) 50,000 chickens; or
(J) 2,500 ducks; or
(ii) Is designated as a CAFO under paragraph (b) of this section.
Option 2 for Paragraph (a)(3):
(3) Concentrated animal feeding operation or CAFO means an AFO
which either is defined as a CAFO under paragraph (a)(3)(i) or (ii) of
this section, or is designated as a CAFO under paragraph (b) of this
section. Two or more AFOs under common ownership are considered to be a
single AFO for the purposes of determining the number of animals at an
operation, if they adjoin each other or if they use a common area or
system for the disposal of wastes. Once an operation is defined as a
CAFO, the requirements of this section apply with respect to all
animals in confinement at the operation and all wastes and waste waters
generated by those animals, regardless of the type of animal.
(i) Tier 1 AFOs. An AFO is a CAFO if more than the numbers of
animals specified in any of the following categories are confined:
(A) 700 mature dairy cattle;
(B) 1,000 veal;
(C) 1,000 cattle other than veal or mature dairy cattle;
(D) 2,500 swine each weighing over 25 kilograms (approximately 55
pounds);
(E) 10,000 swine each weighing less than 25 kilograms
(approximately 55 pounds);
(F) 500 horses;
(G) 10,000 sheep or lambs;
(H) 55,000 turkeys;
(I) 100,000 chickens; or
(J) 5,000 ducks.
(ii) Tier 2 AFOs. (A) If the number of animals confined at the
operation falls within the following ranges for any of the following
categories, the operation is a Tier 2 AFO. A Tier 2 AFO is a CAFO
unless it meets all of the conditions in paragraph (a)(3)(ii)(B) of
this section and its operator submits to the Director a certification
that it meets those conditions. The certification shall take the form
specified in section 122.22(d).
(1) 200 to 700 mature dairy cattle,
(2) 300 to 1,000 veal,
(3) 300 to 1,000 cattle other than veal or mature dairy cattle,
(4) 750 to 2,500 swine each weighing over 25 kilograms
(approximately 55 pounds),
(5) 3,000 to 10,000 swine each weighing less than 25 kilograms
(approximately 55 pounds),
(6) 150 to 500 horses,
(7) 3,000 to 10,000 sheep or lambs,
(8) 16,500 to 55,000 turkeys,
(9) 30,000 to 100,000 chickens, or
(10) 1,500 to 5,000 ducks.
(B) A Tier 2 AFO is not a CAFO if it meets all of the following
conditions and its operator submits to the Director a certification
that it meets the following conditions:
(1) Waters of the United States do not come into direct contact
with the animals confined in the operation;
(2) There is sufficient storage and containment to prevent all
pollutants from the production area from entering waters of the United
States as specified in 40 CFR Part 412.
(3) There has not been a discharge from the production area within
the last five years;
(4) No part of the production area is located within 100 feet of
waters of the United States;
(5) In cases where manure or process-generated wastewaters are land
applied, they will be land applied in accordance with a Permit Nutrient
Plan that includes the BMP requirements identified at 40 CFR 412.31(b)
and 412.37; and
Option 2a for Paragraph (a)(3)(ii)(B)(6)
(6) With respect to the off-site transfer of manure or process-
generated wastewaters to persons who receive 12 tons or more of manure
or wastewater in any year, the owner or operator will first obtain
assurances that, if the manure will be land applied, it will be applied
in accordance with proper agriculture practices, which means that the
recipient shall determine the nutrient needs of its crops based on
realistic crop yields for its area, sample its soil at least once every
three years to determine existing nutrient content, and not apply the
manure in quantities that exceed the land application rates calculated
using one of the methods specified in 40 CFR 412.31(b)(1)(iv); adequate
assurances include a certification from the recipient, the fact that
the recipient has a permit, or the existence of a State program that
requires the recipient to comply with requirements similar to 40 CFR
412.31(b). The owner or operator will provide the recipient of the
manure with a brochure to be provided by the state permitting authority
or EPA that describes the recipient's responsibilities for appropriate
manure management.
Option 2b for Paragraph (a)(3)(ii)(B)(6)
(6) With respect to manure or process-generated wastewaters that
are
[[Page 3136]]
transferred off-site, the owner or operator will first provide the
recipient of the manure with an analysis of its content and a brochure
to be provided by the State permitting authority or EPA that describes
the recipient's responsibilities for appropriate manure management.
(4) The term land application area means any land under the control
of the owner or operator of the production area whether it is owned,
rented, or leased, to which manure and process wastewater from the
production area is or may be applied.
(5) The term operator, for purposes of this section, means:
(i) An operator as that term is defined in Sec. 122.2; or
(ii) A person who the Director determines to be an operator on the
basis that the person exercises substantial operational control of a
CAFO. Whether a person exercises substantial operational control
depends on factors that include, but are not limited to, whether the
person:
(A) Directs the activity of persons working at the CAFO either
through a contract or direct supervision of, or on-site participation
in, activities at the facility;
(B) Owns the animals; or
(C) Specifies how the animals are grown, fed, or medicated.
(6) The term production area means that part of the AFO that
includes the animal confinement area, the manure storage area, the raw
materials storage area, and the waste containment areas. The animal
confinement area includes but is not limited to open lots, housed lots,
feedlots, confinement houses, stall barns, free stall barns, milkrooms,
milking centers, cowyards, barnyard, exercise yards, animal walkways,
and stables. The manure storage area includes but is not limited to
lagoons, sheds, liquid impoundments, static piles, and composting
piles. The raw materials storage area includes but is not limited to
feed silos, silage bunkers, and bedding materials. The waste
containment area includes but is not limited to settling basins, and
areas within berms, and diversions which separate uncontaminated storm
water Also included in the definition of production area is any eggwash
or egg processing facility.
(b) Designation as a CAFO. The EPA Regional Administrator, or in
States with approved NPDES programs, either the Director or the EPA
Regional Administrator, may designate any AFO as a CAFO upon
determining that it is a significant contributor of pollutants to the
waters of the United States.
(1) In making this designation, the Director or the EPA Regional
Administrator shall consider the following factors:
(i) The size of the AFO and the amount of wastes reaching waters of
the United States;
(ii) The location of the AFO relative to waters of the United
States;
(iii) The means of conveyance of animal wastes and process waste
waters into waters of the United States;
(iv) The slope, vegetation, rainfall, and other factors affecting
the likelihood or frequency of discharge of animal wastes and process
waste waters into waters of the United States; and,
(v) Other relevant factors.
Option 1 for Paragraph (b)(2)
(2) No AFO shall be designated under this paragraph (b) until the
Director or the EPA Regional Administrator has conducted an on-site
inspection of the operation and determined that the operation should
and could be regulated under the permit program; except that no
inspection is required to designate a facility that was previously
defined or designated as a CAFO.
Option 2 for Paragraph (b)(2)
(2) No AFO shall be designated under this paragraph (b) until the
Director or the EPA Regional Administrator has conducted an on-site
inspection of the operation and determined that the operation should
and could be regulated under the permit program; except that no
inspection is required to designate a facility that was previously
defined or designated as a CAFO. In addition, no AFO with less than 300
animal units may be designated as a concentrated animal feeding
operation unless:
(i) Pollutants are discharged into waters of the United States
through a manmade ditch, flushing system, or other similar manmade
device; or
(ii) Pollutants are discharged directly into waters of the United
States which originate outside of the facility and pass over, across,
or through the facility or otherwise come into direct contact with the
animals confined in the operation.
(c) Who must apply for an NPDES permit? (1) All CAFOs must apply
for a permit. For all CAFOs, the CAFO owner or operator must apply for
an NPDES permit, except as provided in paragraph (c)(2) of this
section. Specifically, the CAFO owner or operator must either apply for
an individual NPDES permit or submit a notice of intent for coverage
under a CAFO general permit. If the Director has not made a general
permit available to the CAFO, the CAFO owner or operator must apply for
an individual permit.
(2) Exception. The CAFO owner or operator does not need to apply
for an NPDES permit if the owner or operator has received from the
Director a determination under paragraph (e) of this section that the
CAFO has no potential to discharge.
(3) Co-permitting. Any person who is an ``operator'' of a CAFO on
the basis that the person exercises substantial operational control of
a CAFO (see Sec. 122.23(a)(5)(ii)) must apply for a permit. Such
operators may apply for an NPDES permit either alone or together as co-
permittees with other owners or operators of the CAFO.
(d) In which case will the Director not issue an NPDES permit? The
Director shall not issue an NPDES permit if the Director has determined
that the CAFO has ``no potential to discharge'' pursuant to paragraph
(e) of this section.
(e) ``No potential to discharge'' determinations. (1) Determination
by Director. The Director, upon request, may make a case-specific
determination that a CAFO has no potential to discharge pollutants to
waters of the United States. In making this determination, the Director
must consider the potential for discharges from both the production
area and any land application areas, and must also consider any
potential discharges via ground waters that have a direct hydrologic
connection to surface waters. For purposes of this subsection, the term
``no potential to discharge'' means that there is no potential for any
CAFO manure or waste waters to be added to waters of the United States,
without qualification. For example, a CAFO may not claim that there is
no potential to discharge even if the only pollutants that the CAFO has
a potential to discharge would be exempt from NPDES requirements. A
CAFO has a potential to discharge if it has had a discharge within the
preceding five years.
(2) Supporting information. In requesting a determination of no
potential to discharge, the CAFO owner or operator must submit any
supporting information along with the request. The Director has
discretion to accept or reject any additional information that is
submitted at a later date.
(3) Requesting a ``no potential to discharge'' determination does
not postpone the duty to apply for a permit. The owner or operator must
apply for a permit according to the date specified in section (f)
unless it has received a no potential to discharge determination before
that date.
(4) CAFO bears the risk of any actual discharge. Any unpermitted
CAFO that discharges pollutants into the waters of the United States is
in violation of the
[[Page 3137]]
Clean Water Act even if it has received a ``no potential to discharge''
determination from the Director.
(f) By when must I apply for a permit for my CAFO? (1) For all
CAFOs, the owner or operator of the CAFO must apply for an NPDES permit
no later than [insert date that is three years after the date of
publication of the final rule], except as provided in paragraphs (f)(2)
through (6) of this section.
(2) Operations that are defined as CAFOs prior to [insert date that
is three years after the date of publication of the final rule]. For
operations that are CAFOs under regulations that are in effect prior to
[insert date that is three years after the date of publication of the
final rule], the owner or operator must apply for an NPDES permit under
40 CFR 122.21(a) within the time period specified in 40 CFR 122.21(c).
(3) Operations that become CAFO new sources or new dischargers
after [insert date that is three years after the date of publication of
the final rule]. For operations that meet the criteria in 40 CFR 122.23
for being defined as a CAFO for the first time after [insert date that
is three years after the date of publication of the final rule], the
owner or operator must apply for an NPDES permit 180 days prior to the
date on which they first meet those criteria.
(4) Operations that are designated as CAFOs. For operations for
which EPA or the Director has issued a case-specific designation that
the operation is a CAFO, the owner or operator must apply for a permit
no later than 90 days after issuance of the designation.
(5) Persons who are operators because they exercise ``substantial
operational control'' over a CAFO. Persons who the Director determines
to be operators because they exercise substantial operational control
over a CAFO must apply for a permit within 90 days of the Director's
determination.
(6) No potential to discharge. Notwithstanding any other provision
of this section, a CAFO that has received a ``no potential to
discharge'' determination under paragraph (e) of this section is not
required to apply for an NPDES permit.
(g) Are AFOs subject to Clean Water Act requirements if they are
not CAFOs? AFOs that are neither defined nor designated as CAFOs are
subject to NPDES permitting requirements if they discharge the
following from a point source:
(1) Non-wet weather discharges: discharges from their production
area or land application area that are not composed entirely of storm
water as defined in Sec. 122.26(b)(13).
(2) Wet weather discharges: discharges from their land application
area that are composed entirely of storm water as defined in
Sec. 122.26(b)(13), if the discharge has been designated under
Sec. 122.26(a)(1)(v) as requiring an NPDES permit. Discharges may be
designated under Sec. 122.26(a)(1)(v) if they are not agricultural
storm water discharges as defined in Sec. 122.23(a)(1).
(h) If I do not operate an AFO but I land apply manure, am I
required to have a NPDES permit? If you have not been designated by
your permit authority, you do not need a NPDES permit to authorize the
discharge of runoff composed entirely of storm water from your manure
application area. The land application of manure that results in the
point source discharge of pollutants to waters of the United States may
be designated pursuant to Sec. 122.26(a)(1)(v) as requiring a NPDES
permit if the application is not in accordance with proper agriculture
practices. Proper agricultural practices means that the recipient shall
determine the nutrient needs of its crops based on realistic crop
yields for its area, sample its soil at least once every three years to
determine existing nutrient content, and not apply the manure in
quantities that exceed the land application rates calculated using one
of the methods specified in 40 CFR 412.31(b)(1)(iv).
(i) What must be required in NPDES permits issued to CAFOs. Permits
issued to CAFOs must require compliance with the following:
(1) All other requirements of this part.
(2) The applicable provisions of part 412.
(3) Duty to Maintain Permit Coverage. No later than 180 days before
the expiration of the permit, the permittee must submit an application
to renew its permit. However, the permittee need not reapply for a
permit if the facility is no longer a CAFO (e.g., where the numbers of
confined animals has been reduced below the level that meets the
definition of a CAFO) and the permittee has demonstrated to the
satisfaction of the Director that there is no remaining potential for a
discharge of manure or associated waste waters that were generated
while the operation was a CAFO. With respect to CAFOs, this section
applies instead of Secs. 122.21(d) and 122.41(b).
(4) Co-permittees. In the case of a permit issued to more than one
owner or operator of the CAFO, the permit may allocate to one of the
permit holders the sole responsibility for any permit requirement,
except that all permit holders must be jointly responsible for the
management of manure in excess of what can be applied on-site in
compliance with part 412
(5) Permits issued to CAFOs that meet the applicability
requirements of Subpart C (Beef and Dairy) or Subpart D (Swine, Poultry
and Veal) of 40 CFR Part 412 shall also require compliance with
paragraph (j) of this section.
(6) Permits issued to CAFOs that do not meet the applicability
requirements of Subpart C or Subpart D of 40 CFR Part 412 (including
beef, dairy, swine, poultry or veal facilities not subject to those
parts, and facilities with other types of animals) shall also require
compliance with paragraph (k) of this section.
(j) What must be required in NPDES permits issued to CAFOs that are
subject to part 412, Subparts C (Beef and Dairy) and D (Swine, Poultry
and Veal)? Permits issued to CAFOs that meet the applicability
requirements of Subpart C or Subpart D of 40 CFR Part 412 must require
compliance with all of the following:
(1) Requirements to use the method in 40 CFR 412.31(b)(1)(iv)
chosen by the Director to determine phosphorous field conditions and to
determine appropriate manure application rates. The permit shall
specify the factors to be considered and the analytical methods to be
employed when determining those rates.
(2) Prohibitions against or restrictions on applying manure to land
during times and using methods which, in light of local crop needs,
climate, soil types, slope and other factors, would not serve an
agricultural purpose and would be likely to result in pollutant
discharges to waters of the United States.
(3) Requirement to notify the Director when the permittee's Permit
Nutrient Plan has been developed or revised. Notification of the
development of the permittee's initial Permit Nutrient Plan must be
submitted no later than 90 days after the CAFO submits its NOI or
obtains coverage under an individual permit. With the notice, the
permittee shall provide a copy of the cover sheet and executive summary
of the permittee's current Permit Nutrient Plan that has been developed
under 40 CFR 412.37(b).
Option 1 for Paragraphs (j)(4) and (5)
(4) Transfer of manure to other persons. The Director may waive the
requirements of this paragraph if an enforceable state program subjects
the recipient of CAFO wastes to land application requirements that are
equivalent to the requirements in 40 CFR 412.31(b). The requirements of
paragraph (f) of this section apply only to transfers to persons who
receive 12
[[Page 3138]]
tons or more of wastes from the CAFO in any year. Prior to transferring
manure and other wastes to other persons, the permittee shall:
(i) Obtain from each intended recipient of the CAFO waste (other
than haulers that do not land apply the waste) a certification that the
recipient will do one of the following. The certification must contain
a statement that the recipient understands that the information is
being collected on behalf of the U.S. Environmental Protection Agency
or State and that there are penalties for falsely certifying. The
permittee is not liable if the recipient violates its certification;
(A) Land apply the wastes in accordance with proper agriculture
practices, which means that the recipient shall determine the nutrient
needs of its crops based on realistic crop yields for its area, sample
its soil at least once every three years to determine existing nutrient
content, and not apply the manure in quantities that exceed the land
application rates calculated using the method specified in 40 CFR
412.31(b)(1)(iv) chosen by the Director;
(B) Land apply the wastes in compliance with the terms of an NPDES
permit that addresses for discharges from the land application area; or
(C) Use the manure for purposes other than land application.
(ii) Obtain from any commercial waste hauler the name and location
of the recipient of the wastes, if known;
(iii) Provide the recipient of the manure with an analysis of its
content; and
(iv) Provide the recipient of the manure with a brochure to be
provided by the State permitting authority or EPA that describes the
recipient's responsibilities for appropriate manure management.
(5) Record keeping requirements. Requirements to keep, maintain for
five years and make available to the Director or the Regional
Administrator:
(i) Records of the inspections and of the manure sampling and
analysis required by 40 CFR 412.37(a);
(ii) Records required by 40 CFR 412.37(e) related to the
development and implementation of Permit Nutrient Plans required by 40
CFR 412.37(b); and
(iii) Records of each transfer of wastes to a third party,
including date, recipient name and address, quantity transferred, an
analysis of manure content and a copy of the certifications required by
paragraph (j)(4) of this section. If the waste is transferred to a
commercial waste hauler, records of where the hauler indicated it would
take the waste, if known. If the waste is to be packaged as fertilizer,
incinerated or used for a purpose other than direct land application,
records of the analysis of the manure are not required.
Option 2 for Paragraphs (j)(4) and (5):
(4) Transfer of manure to other persons. Prior to transferring
manure and other wastes to other persons, the permittee shall:
(i) Provide the recipient of the manure with an analysis of its
content;
(ii) Provide the recipient of the manure with a brochure to be
provided by the State permitting authority or EPA that describes the
recipient's responsibilities for appropriate manure management; and
(iii) Obtain from any commercial waste hauler the name and location
of the recipient of the wastes, if known.
(5) Record keeping requirements. Requirements to keep, maintain for
five years and make available to the Director or the Regional
Administrator:
(i) Records of the inspections and of the manure sampling and
analysis required by 40 CFR 412.37(a);
(ii) Records required by 40 CFR 412.37(e) related to the
development and implementation of Permit Nutrient Plans required by 40
CFR 412.37(b); and
(iii) Records of each transfer of wastes to a third party,
including date, recipient name and address, quantity transferred, and
an analysis of manure content. If the waste is transferred to a
commercial waste hauler, records of where the hauler indicated it would
take the waste, if known. If the waste is to be packaged as fertilizer,
incinerated or used for a purpose other than direct land application,
records of the analysis of the manure are not required.
(6) For CAFOs subject to 40 CFR 412.43 (existing swine, poultry and
veal facilities), the Director must determine based on topographical
characteristics of the region whether there is a likelihood that a CAFO
may discharge from the production area via ground water that has a
direct hydrologic connection to waters of the United States. If the
Director finds there is such a likelihood, and the Director determines
there is the potential for an excursion of State water quality
standards due to such discharge, the Director must impose any water
quality-based effluent limits necessary to comply with Sec. 122.44(d).
The Director may omit such water quality-based effluent limits from the
permit if the permittee has provided a hydrologist's statement that
demonstrates to the Director's satisfaction that there is no direct
hydrologic connection from the production area to waters of the United
States.
(k) What additional terms and conditions must be required in NPDES
permits issued to CAFOs that are not subject to part 412, Subparts C
and D? (1) All CAFOs not subject to part 412. In cases where a CAFO has
fewer than the number of animals necessary to make it subject to the
requirements 40 CFR Part 412, and the Director is establishing effluent
limitations on a case-by-case basis based on best professional judgment
under section 402(a)(1)(B) of the Act, the Director shall consider the
need for the following effluent limitations:
(i) Limits on the discharge of process wastewater pollutants from
the production area, including limits based on the minimum duration and
intensity of rainfall events for which the CAFO can design and
construct a system to contain all process-generated wastewaters from
such event;
(ii) Limits on discharges resulting from the application of manure
to land, including restrictions on the rates of application of nitrogen
and phosphorous;
(iii) Requirements to implement best management practices to ensure
the CAFO achieves limitations under paragraphs (k)(1)(i) and (k)(1)(ii)
of this section;
(iv) Requirements to develop and implement a Permit Nutrient Plan
that addresses requirements developed under paragraphs (k)(1)(i), (ii),
and (iii) of this section; and
(v) If the CAFO is in an area with topographic characteristics that
indicate a likelihood that ground water has a direct hydrologic
connection to waters of the United States, requirements necessary to
comply with Sec. 122.44, unless the permittee submits a hydrologist's
statement that the production area is not connected to surface waters
through a direct hydrologic connection.
(2) CAFOs subject to part 412, Subparts A and B. In addition to the
applicable effluent limitations, when developing permits to be issued
to CAFOs with horses, sheep or ducks subject to Subparts A and B of 40
CFR 412, the Director shall consider the need for effluent limitations
for wastestreams not covered by Subparts A and B, including the need
for the requirements described in paragraphs (k)(1)(ii) through (v) of
this section.
(l) How will the public know if a CAFO is implementing an adequate
permit nutrient plan?
(1) The Director shall make publicly available via the worldwide
web or other publicly available source, and update every 90 days:
[[Page 3139]]
(i) A list of all CAFOs that have submitted a notice of intent for
coverage under a general permit, and
(ii) A list of all CAFOs that have submitted a notice that their
permit nutrient plan has been developed or revised.
(2) The Director shall make publicly available the notices of
intent, notice of plan development, and the cover sheet and executive
summary of the permittee's Permit Nutrient Plan. If the Director does
not have a copy of the cover sheet and executive summary of the
permittee's current Permit Nutrient Plan and the cover sheet and
executive summary are not publicly available at the CAFO or other
location, the Director shall, upon request from the public, obtain a
copy of the cover sheet and executive summary. Until required by the
Director, the CAFO operator is not required to submit cover sheet or
executive summary to the Director.
(3) Confidential business information. The information required to
be in Permit Nutrient Plan cover sheet and executive summary, and
required soil sampling data, may not be claimed as confidential. Any
claim of confidentiality by a CAFO in connection with the remaining
information in the Permit Nutrient Plan will be subject to the
procedure in 40 CFR Part 2.
4. Section 122.28 is amended by:
a. Removing the word ``or'' at the end of paragraph (a)(2)(i) and
adding the word ``or'' at the end of paragraph (a)(2)(ii)(D).
b. Adding paragraph (a)(2)(iii).
c. Adding two sentences to the end paragraph (b)(2)(ii)
d. Redesignating paragraph (b)(3)(i)(G) as paragraph (b)(3)(i)(H)
and adding a new paragraph (b)(3)(i)(G).
e. Adding paragraph (b)(3)(vi).
The additions read as follows:
Sec. 122.28 General permits (applicable to State NPDES programs, see
Sec. 123.25).
(a) * * *
(2) * * *
(iii) Concentrated animal feeding operations.
* * * * *
(b) * * *
(2) * * *
(ii) * * * Notices of intent for coverage under a general permit
for confined animal feeding operations must include: a topographic map
as described in Sec. 122.21(f)(7); name and address of any other entity
with substantial operational control; a statement whether the owner or
operator has developed and is implementing its Permit Nutrient Plan
and, if not, the status of the development of its Permit Nutrient Plan.
New sources subject to 40 CFR Part 412 shall also provide a copy of a
draft plan that, at a minimum, demonstrates that there is adequate land
available to the CAFO operator to comply with the land application
provisions of 40 CFR Part 412 or describes an alternative to land
application that the operator intends to implement.
* * * * *
(3) * * *
(i) * * *
(G) The discharge is from a CAFO. In addition to the other criteria
in paragraph (b)(3) of this section, the Director shall consider
whether general permits are appropriate for the following CAFOs:
(1) CAFOs located in an environmentally or ecologically sensitive
area;
(2) CAFOs with a history of operational or compliance problems;
(3) CAFOs that are exceptionally large operation as determined by
the Director; or
(4) Significantly expanding CAFOs.
* * * * *
(vi) Prior to issuing any general permits for CAFOs, the Director,
after considering input from the public, shall issue a written
statement of its policy on which CAFOs will be eligible for general
permits, including a statement of how it will apply the criteria in
paragraph (b)(3)(i)(G) of this section.
Appendix B to Part 122 [Removed and Reserved]
6. Remove and reserve Appendix B to part 122.
9. Part 412 is revised to read as follows:
PART 412--CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFOs) POINT
SOURCE CATEGORY
Sec.
412.0 General applicability.
412.1 General definitions.
412.2 General pretreatment standards.
Subpart A--Horses and Sheep
412.10 Applicability.
412.11 Special definitions.
412.12 Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).
412.13 Effluent limitations attainable by the application of the
best available control technology economically achievable (BAT).
412.15 New source performance standards (NSPS).
Subpart B--Ducks
412.20 Applicability.
412.21 Special definitions.
412.22 Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).
412.25 New source performance standards (NSPS).
412.26 Pretreatment standards for new sources (PSNS).
Subpart C--Beef and Dairy
412.30 Applicability.
412.31 Effluent limitations attainable by the application of best
practicable control technology currently available (BPT).
412.32 Effluent limitations attainable by the application of the
best control technology for conventional pollutants (BCT).
412.33 Effluent limitations attainable by the application of the
best available control technology economically achievable (BAT).
412.35 New source performance standards (NSPS).
412.37 Additional measures.
Subpart D--Swine, Veal and Poultry
412.40 Applicability.
412.41 Effluent limitations attainable by the application of best
practicable control technology currently available (BPT).
412.42 Effluent limitations attainable by the application of the
best control technology for conventional pollutants (BCT).
412.43 Effluent limitations attainable by the application of the
best available control technology economically achievable (BAT).
412.45 New source performance standards (NSPS).
Authority: 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342 and
1361.
Sec. 412.0 General applicability.
This part applies to process wastewater discharges resulting from
concentrated animal feeding operations (CAFOs). Manufacturing
activities which may be subject to this part are generally reported
under one or more of the following Standard Industrial Classification
(SIC) codes: SIC 0211, SIC 0213, SIC 0241, SIC 0259, or SIC 3523 (1987
SIC Manual).
Sec. 412.1 General Definitions.
As used in this part:
(a) The general definitions and abbreviations at 40 CFR part 401
shall apply.
(b) Concentrated Animal Feeding Operation (CAFO) is defined at 40
CFR 122.23(a)(3).
(c) Fecal coliform means the bacterial count (Parameter 1) at 40
CFR 136.3 in Table 1A, which also cites the approved methods of
analysis.
(d) Process wastewater means water directly or indirectly used in
the operation of the CAFO for any or all of the following: spillage or
overflow from animal or poultry watering systems; washing, cleaning, or
flushing pens, barns, manure pits, or other CAFO
[[Page 3140]]
facilities; direct contact swimming, washing or spray cooling of
animals; litter or bedding; dust control; and stormwater which comes
into contact with any raw materials, products or by-products of the
operation.
(e) Certified specialist shall mean someone who has been certified
to prepare Comprehensive Nutrient Management Plans (CNMPs) by USDA or a
USDA sanctioned organization.
(f) Land application area means any land under the control of the
CAFO operator, whether it is owned, rented, or leased, to which manure
and process wastewater is or may be applied.
(g) New source means a source that is subject to subparts C or D of
this part and, not withstanding the criteria codified at 40 CFR
122.29(b)(1): Is constructed at a site at which no other source is
located; or replaces the housing including animal holding areas,
exercise yards, and feedlot, waste handling system, production process,
or production equipment that causes the discharge or potential to
discharge pollutants at an existing source; or constructs a production
area that is substantially independent of an existing source at the
same site. Whether processes are substantially independent of an
existing source, depends on factors such as the extent to which the new
facility is integrated with the existing facility; and the extent to
which the new facility is engaged in the same general type of activity
as the existing source.
(h) Overflow means the process wastewater discharge resulting from
the filling of wastewater or liquid manure storage structures to the
point at which no more liquid can be contained by the structure.
(i) Production area means that part of the CAFO that includes the
animal confinement area, the manure storage area, the raw materials
storage area, and the waste containment areas. The animal confinement
area includes but is not limited to open lots, housed lots, feedlots,
confinement houses, stall barns, free stall barns, milkrooms, milking
centers, cowyards, barnyard, exercise yards, animal walkways, and
stables. The manure storage area includes but is not limited to
lagoons, sheds, under house or pit storage, liquid impoundments, static
piles, and composting piles. The raw materials storage area includes
but is not limited to feed silos, silage bunkers, and bedding
materials. The waste containment area includes but is not limited to
settling basins, and areas within berms, and diversions which separate
uncontaminated stormwater. Also included in the definition of
production area is any egg washing or egg processing facility.
(j) Setback means a specified distance from surface waters or
potential conduits to surface waters where manure and wastewater may
not be land applied. Examples of conduits to surface waters include,
but are not limited to, tile line intake structures, sinkholes, and
agricultural well heads.
(k) Soil test phosphorus is the measure of the phosphorus content
in soil as reported by approved soil testing laboratories using a
specified analytical method.
(l) Phosphorus threshold or TH level is a specific soil test
concentration of phosphorus established by states. The concentration
defines the point at which soluble phosphorus may pose a surface runoff
risk.
(m) Phosphorus index means a system of weighing a number of
measures that relate the potential for phosphorus loss due to site and
transport characteristics. The phosphorus index must at a minimum
include the following factors when evaluating the risk for phosphorus
runoff from a given field or site:
(1) Soil erosion.
(2) Irrigation erosion.
(3) Run-off class.
(4) Soil phosphorus test.
(5) Phosphorus fertilizer application rate.
(6) Phosphorus fertilizer application method.
(7) Organic phosphorus application rate.
(8) Method of applying organic phosphorus.
(n) Permit Nutrient Plan means a plan developed in accordance with
Sec. 412.33 (b) and Sec. 412.37. This plan shall define the appropriate
rate for applying manure or wastewater to crop or pasture land. The
plan accounts for soil conditions, concentration of nutrients in
manure, crop requirements and realistic crop yields when determining
the appropriate application rate.
(o) Crop removal rate is the application rate for manure or
wastewater which is determined by the amount of phosphorus which will
be taken up by the crop during the growing season and subsequently
removed from the field through crop harvest. Field residues do not
count towards the amount of phosphorus removed at harvest.
(p) Ten(10)-year, 24-hour rainfall event and 25-year, 24-hour
rainfall event mean precipitation events with a probable recurrence
interval of once in ten years, or twenty five years, respectively, as
defined by the National Weather Service in Technical Paper No. 40,
``Rainfall Frequency Atlas of the United States,'' May, 1961, or
equivalent regional or State rainfall probability information developed
from this source. The technical paper is available at http://www.nws.noaa.gov/er/hq/Tp40s.html.
(q) The parameters that are regulated or referenced in this part
and listed with approved methods of analysis in Table 1B at 40 CFR
136.3 are defined as follows:
(1) Ammonia (as N) means ammonia reported as nitrogen.
(2) BOD5 means 5-day biochemical oxygen demand.
(3) Chloride means total chloride.
(4) Nitrate (as N) means nitrate reported as nitrogen.
(5) Total dissolved solids means non-filterable residue.
(r) The parameters that are regulated or referenced in this part
and listed with approved methods of analysis in Table 1A at 40 CFR
136.3 are defined as follows:
(1) Fecal coliform means fecal coliform bacteria.
(2) Total coliform means all coliform bacteria.
Sec. 412.3 General pretreatment standards.
Any source subject to this part that introduces process wastewater
pollutants into a publicly owned treatment works (POTW) must comply
with 40 CFR part 403.
Subpart A--Horses and Sheep
Sec. 412.10 Applicability.
This subpart applies to discharges resulting from the production
areas at CAFOs where sheep are confined in open or housed lots; and
horses are confined in stables such as at racetracks. This subpart does
not apply to such CAFOs with less than the following capacities:
Applicable CAFOs
------------------------------------------------------------------------
Livestock Minimum capacity
------------------------------------------------------------------------
Sheep.................................. 10,000
Horses................................. 500
------------------------------------------------------------------------
[[Page 3141]]
Sec. 412.11 Special definitions.
For the purpose of this subpart:
(a) Housed lot means totally roofed buildings, which may be open or
completely enclosed on the sides, wherein animals are housed over
floors of solid concrete or dirt and slotted (partially open) floors
over pits or manure collection areas, in pens, stalls or cages, with or
without bedding materials and mechanical ventilation.
(b) Open lot means pens or similar confinement areas with dirt,
concrete paved or hard surfaces, wherein animals are substantially or
entirely exposed to the outside environment, except where some
protection is afforded by windbreaks or small shed-type shaded areas.
Sec. 412.12 Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).
(a) Except as provided in 40 CFR 125.30 through 125.32 and when the
provisions of paragraph (b) of this section apply, any existing point
source subject to this subpart must achieve the following effluent
limitations representing the application of BPT: There must be no
discharge of process wastewater pollutants into U.S. waters.
(b) Whenever rainfall events cause an overflow of process
wastewater from a facility designed, constructed and operated to
contain all process-generated wastewaters plus the runoff from a 10-
year, 24-hour rainfall event at the location of the point source, any
process wastewater pollutants in the overflow may be allowed to be
discharged into U.S. waters.
Sec. 412.13 Effluent limitations attainable by the application of the
best available technology economically achievable (BAT).
(a) Except as provided in 40 CFR 125.30 through 125.32 and when the
provisions of paragraph (b) of this section apply, any existing point
source subject to this subpart must achieve the following effluent
limitations representing the application of BAT: There must be no
discharge of process wastewater pollutants into U.S. waters.
(b) Whenever rainfall events cause an overflow of process
wastewater from a facility designed, constructed and operated to
contain all process-generated wastewaters plus the runoff from a 25-
year, 24-hour rainfall event at the location of the point source, any
process wastewater pollutants in the overflow may be allowed to be
discharged into U.S. waters.
Sec. 412.15 New source performance standards (NSPS).
(a) Except as provided in paragraph (b) of this section, any new
point source subject to this subpart must achieve the following
performance standards: There must be no discharge of process wastewater
pollutants into U.S. waters.
(b) Whenever rainfall events cause an overflow of process
wastewater from a facility designed, constructed and operated to
contain all process-generated wastewaters plus the runoff from a 25-
year, 24-hour rainfall event at the location of the point source, any
process wastewater pollutants in the overflow may be allowed to be
discharged into U.S. waters.
Subpart B--Ducks
Sec. 412.20 Applicability.
This subpart applies to discharges resulting from dry and wet duck
feedlots with a capacity of at least 5000 ducks.
Sec. 412.21 Special definitions.
For the purpose of this subpart:
(a) Dry lot means a facility for growing ducks in confinement with
a dry litter floor cover and no access to swimming areas.
(b) Wet lot means a confinement facility for raising ducks which is
open to the environment, has a small number of sheltered areas, and
with open water runs and swimming areas to which ducks have free
access.
Sec. 412.22 Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).
Except as provided in 40 CFR 125.30 through 125.32, any existing
point source subject to this subpart shall achieve the following
effluent limitations representing the application of BPT:
Effluent Limitations
----------------------------------------------------------------------------------------------------------------
Maximum Maximum
Regulated parameter Maximum monthly Maximum monthly
daily \1\ avg.\1\ daily \2\ avg.\2\
----------------------------------------------------------------------------------------------------------------
BOD5........................................................ 3.66 2.0 1.66 0.91
Fecal coliform.............................................. (\3\) (\3\) (\3\) (\3\)
----------------------------------------------------------------------------------------------------------------
\1\ Pounds per 1000 ducks.
\2\ Kilograms per 1000 ducks.
\3\ Not to exceed MPN of 400 per 100 ml at any time.
Sec. 412.25 New source performance standards (NSPS).
Any new source subject to this subpart must achieve the following
standards:
(a) Except as provided in paragraph (b) of this section, there must
be no discharge of process wastewater pollutants into U.S. waters.
(b) Whenever rainfall events cause an overflow of process
wastewater from a facility designed, constructed and operated to
contain all process-generated wastewaters plus the runoff from a 25-
year, 24-hour rainfall event at the location of the point source, any
process wastewater pollutants in the overflow may be allowed to be
discharged into U.S. waters.
Sec. 412.26 Pretreatment standards for new sources (PSNS).
(a) Except as provided in 40 CFR Sec. 403.7 and in paragraph (b) of
this section, any new source subject to this subpart must achieve the
following pretreatment standards: There must be no discharge of process
wastewater pollutants into a POTW.
(b) Whenever rainfall events cause an overflow of process
wastewater from a facility designed, constructed and operated to
contain all process-generated wastewaters plus the runoff from a 25-
year, 24-hour rainfall event at the location of the new source, the
discharge of any process wastewater pollutants in the overflow may be
allowed.
Subpart C--Beef and Dairy
Sec. 412.30 Applicability.
This subpart applies to concentrated animal feeding operations
(CAFOs), as defined in 40 CFR Sec. 122.23, and includes the following
types of animals: Mature dairy cows, either milking or dry; and cattle
other than mature dairy or veal.
[[Page 3142]]
Sec. 412.31 Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).
Except as provided in 40 CFR Sec. 125.30 through Sec. 125.32, any
existing point source subject to this subpart must achieve the
following effluent limitations representing the application of BPT:
(a) For CAFO production areas:
(1) Except as provided in paragraph (a)(2) of this section, there
must be no discharge of process wastewater pollutants into U.S. waters.
(2) Whenever rainfall causes an overflow of process wastewater,
pollutants in the overflow may be discharged into U.S. waters during
those periods subject to following conditions:
(i) The production area is designed and constructed to contain all
process wastewaters including the runoff from a 25 year, 24 hour
rainfall event; and
(ii) The production area is operated in accordance with the
requirements of Sec. 412.37(a)(1) through (3).
(b) For CAFO land application areas:
(1) Discharges resulting from the application of manure or process
wastewater to land owned or under the control of the CAFO must achieve
the following:
(i) Develop and implement a Permit Nutrient Plan (PNP) that
includes the requirements specified at Sec. 412.37; and establishes
land application rates for manure in accordance with Sec. 412.31
(b)(1)(iv).
(ii) The PNP must be developed or approved by a certified
specialist.
(iii) The PNP must be written taking into account realistic yield
goals based on historic yields from the CAFO, or county average data
when historic yields are not appropriate. County average data may be
used when a facility plants a crop that no yield data for that CAFO
land application area has been obtained within the previous 10 years.
CAFOs shall review the PNP annually and revise as necessary, and must
rewrite the PNP at least once every five years.
(iv) Apply manure and process wastewater at a rate established in
accordance with one of the three methods defined in tables 1 through 3
of this section. State approved indices, thresholds, and soil test
limits shall be utilized such that application does not exceed the crop
and soil requirements for nutrients:
Table 1.--Phosphorus Index
------------------------------------------------------------------------
Phosphorus index rating Manure and wastewater application rate
------------------------------------------------------------------------
Low Risk..................... Application of manure and wastewater may
not exceed the nitrogen requirements of
the crop.
Medium Risk.................. Application of manure and wastewater may
not exceed the nitrogen requirements of
the crop.
High Risk.................... Application of phosphorus in manure and
wastewater may not exceed the amount of
phosphorus removed from the field with
crop harvest.
Very High Risk............... No land application of manure or
wastewater.
------------------------------------------------------------------------
Table 2.--Phosphorus Threshold
------------------------------------------------------------------------
Soil phosphorus threshold
level Manure and wastewater application rate
------------------------------------------------------------------------
\3/4\ TH application........ Manure and wastewater may not exceed the
nitrogen requirements of the crop.
> \3/4\ TH, 2 TH application Phosphorus in manure and wastewater may
not exceed the amount of phosphorus
removed from the field with crop
harvest.
> 2 TH application........... No land application of manure or
wastewater.
------------------------------------------------------------------------
Table 3.--Soil Test Phosphorus
------------------------------------------------------------------------
Soil test phosphorus level Manure and wastewater application rate
------------------------------------------------------------------------
Low.......................... Application of manure and wastewater may
not exceed the nitrogen requirements of
the crop.
Medium....................... Application of manure and wastewater may
not exceed the nitrogen requirements of
the crop.
High......................... Application of phosphorus in manure and
wastewater may not exceed the amount of
phosphorus removed from the field with
crop harvest.
Very High.................... No land application of manure and
wastewater.
------------------------------------------------------------------------
(2) Multi-year phosphorus applications are prohibited when either
the P-Index is rated high, the soil phosphorus threshold is between \3/
4\ and 2 times the TH value, or the soil test phosphorus level is high
as determined in paragraph (b)(1) (iv) of this section unless:
(i) Manure application equipment designed for dry poultry manure or
litter cannot obtain an application rate low enough to meet a
phosphorus based application rate as determined by the PNP In the event
a phosphorus application occurs during one given year which exceeds the
crop removal rate for that given year, no additional manure or process
wastewater shall be applied to the same land in subsequent years until
all applied phosphorus has been removed from the field via harvest and
crop removal.
(ii) [Reserved]
Sec. 412.32 Effluent limitations attainable by the application of the
best control technology for conventional pollutants (BCT).
Except as provided in 40 CFR 125.30 through 125.32 and 412.41(2),
any existing point source subject to this subpart must achieve the
following effluent limitations representing the application of BCT:
(a) For CAFO production areas: Discharges must achieve the same
requirements as specified in Sec. 412.31(a).
(b) For CAFO land application areas:
Discharges resulting from the application of manure or process
wastewater to crop or pasture land owned or under the control of the
CAFO must achieve the same requirements as specified in Sec. 412.31(b)
and Sec. 412.37.
Sec. 412.33 Effluent limitations attainable by the application of the
best available technology economically achievable (BAT).
Except as provided in 40 CFR 125.30 through 125.32 and
412.33(a)(2), any existing point source subject to this
[[Page 3143]]
subpart must achieve the following effluent limitations representing
the application of BAT:
(a) For CAFO production areas:
(1) There must be no discharge of process wastewater pollutants
into U.S. waters, including any pollutants discharged to ground water
which has a direct hydrologic connection to surface waters.
(2) Whenever rainfall causes an overflow of process wastewater,
pollutants in the overflow may be discharged into U.S. waters during
those periods when the following conditions are met:
(i) The production area is designed and constructed to contain all
process wastewaters including the runoff from a 25 year, 24 hour
rainfall event; and
(ii) The production area is operated in accordance with the
requirements of Sec. 412.37(a).
(3)(i) The ground water beneath the production area must be sampled
twice annually to demonstrate compliance with the no discharge
requirement unless the CAFO has determined to the satisfaction of the
permitting authority that the ground water beneath the production area
is not connected to surface waters through a direct hydrologic
connection.
(ii) Ground water samples shall be collected up-gradient and down-
gradient of the production area and analyzed for:
(A) Total coliforms.
(B) Fecal coliform.
(C) Total dissolved solids.
(D) Nitrates.
(E) Ammonia.
(F) Chloride
(b) For CAFO land application areas:
Discharges resulting from the application of manure or process
wastewater to crop or pasture land owned or under the control of the
CAFO must achieve the same requirements as specified in Sec. 412.31(b)
and Sec. 412.37.
Sec. 412.35 New source performance standards (NSPS).
Any new source subject to this subpart must achieve the following
standards:
(a) For CAFO production areas:
Subject to the provisions of paragraph (c) of this section,
discharges must achieve the same requirements as specified in
Sec. 412.33(a).
(b) For CAFO land application areas:
Subject to the provisions of paragraph (c) of this section,
discharges resulting from the application of manure or process
wastewater to crop or pasture land owned or under the control of the
CAFO must achieve the same requirements as specified in Sec. 412.31(b)
and Sec. 412.37.
(c) Any new source subject to the provisions of this section that
commenced discharging after [insert date 10 years prior to the date
that is 60 days from the publication date of the final rule] and before
[insert date that is 60 days from the publication date of the final
rule] must continue to achieve the standards specified in the 2000
version of Sec. 412.15, provided that the new source was constructed to
meet those standards. For toxic and nonconventional pollutants, those
standards shall not apply after the expiration of the applicable time
period specified in 40 CFR 122.29(d)(1); thereafter, the source must
achieve the standards specified in paragraphs (a) and (b) of this
section.
Sec. 412.37 Additional measures.
(a) Each CAFO subject to this subpart must implement the following
requirements:
(1) There must be routine visual inspections of the CAFO production
area to check the following:
(i) Weekly inspections of all stormwater diversion devices, such as
roof gutters, to ensure they are free of debris that could interfere
with the diversion of clean stormwater;
(ii) Weekly inspections of all stormwater diversion devices which
channel contaminated stormwater to the wastewater and manure storage
and containment structure, to ensure that they are free of debris that
could interfere with ensuring this contaminated stormwater reaches the
storage or containment structure;
(iii) Daily inspections of all water lines providing drinking water
to the animals to ensure there are no leaks in these lines that could
contribute unnecessary volume to liquid storage systems or cause dry
manure to become too wet;
(iv) Runoff diversion structures and animal waste storage
structures must be visually inspected for: seepage, erosion,
vegetation, animal access, reduced freeboard, and functioning rain
gauges and irrigation equipment, on a weekly basis manure storage area
to ensure integrity of the structure. All surface impoundments must
have a depth marker which indicates the design volume and clearly
indicates the minimum freeboard necessary to allow for the 25 year 24
hour rainfall event. The inspection shall also note the depth of the
manure and process wastewater in the impoundment as indicated by this
depth marker.
(2) Any deficiencies found as a result of these inspections shall
be corrected as soon as possible. Deficiencies and corrective action
taken shall be documented.
(3) Mortalities may not be disposed of in any liquid manure or
stormwater storage or treatment system, and must be handled in such a
way as to prevent discharge of pollutants to surface water.
(4) Land application of manure generated by the CAFO to land owned
or controlled by the CAFO must be done in accordance with the following
practices:
(i) Manure may not be applied closer than 100 feet to any surface
water, tile line intake structure, sinkhole or agricultural well head.
(ii) The CAFO must take manure samples at least once per year and
analyzed for nitrogen, phosphorus and potassium. Samples must be
collected from all manure storage areas, both liquid and dry storage,
as well as any wastewater or storm water storage. The CAFO must take
soil samples once every three years if they apply manure to crop or
pasture land under their control, and analyze the soil sample for
phosphorus. Samples shall be collected in accordance with accepted
Extension protocols and the analyses must be conducted in accordance
with the state nutrient management standard. These protocols shall be
documented in the PNP.
(iii) Manure that is transported off-site must be sampled at least
once a year for nitrogen, phosphorus and potassium. The results of
these analyses must be provided to the recipient of the manure.
(iv) Manure application equipment must be calibrated prior to land
application of manure and/or process wastewaters at a minimum of once
per year.
(b) Record keeping requirements:
Each CAFO must maintain on its premises a complete copy of the
current PNP and the records specified in paragraphs (b)(1) through (12)
of this section. The CAFO must make the PNP available to the permitting
authority and the Regional Administrator, or his or her designee, for
review upon request. Records must be maintained for 5 years from the
date they are created.
(1) Cover Sheet which includes the following information:
(i) the name and location of the CAFO,
(ii) name and title of the owner or operator
(iii) name and title of the person who prepared the plan,
(iv) date the plan was prepared,
(v) date the plan was amended
(2) Executive Summary which includes the following information:
(i) Total average herd or flock size
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(ii) Identification of manure collection, handling, storage, and
treatment practices
(iii) Amount of manure generated annually
(iv) Identification of planned crops (rotation)
(v) Realistic yield goal as described in Sec. 412.31(b)(1)(iii)
(vi) Field condition as determined by the phosphorus index, soil
test phosphorus, or phosphorus threshold (for each field unit that will
receive manure)
(vii) number of acres that will receive manure
(viii) amount of manure transported off-site
(ix) animal waste application rate (gallons or tons/acre)
(x) identification of watershed or nearest surface water body
(3) Records documenting the inspections required under paragraph
(a)(1) of this section.
(4) Records tracking the repairs performed on drinking water lines,
automated feeding equipment, feed storage and silos, manure storage,
manure treatment facilities, as well as maintenance of berms and
diversions that direct clean stormwater away from any manure and other
process wastewater.
(5) Records documenting the following information about manure
application and crop production.
(i) Expected crop yield based on historical data for the CAFO for
its land application area, or county average yield data when the CAFO
does not have a prior history of crop yields
(ii) The date(s) manure is applied,
(iii) Weather conditions at time of application and for 24 hours
prior to and following application,
(iv) Results from manure and soil sampling,
(v) Test methods used to sample and analyze manure and soil,
(vi) Whether the manure application rate is limited to nitrogen,
phosphorus, or some other parameter,
(vii) The amount of manure and manure nutrients applied,
(viii) The amount of any other nutrients applied to the field
reported in terms of nitrogen, phosphorus and potassium (including
commercial fertilizer, legume credits, and biosolids),
(ix) Calculations showing the total nutrients applied to land,
(x) Calibration of manure application equipment,
(xi) The rate of application of manure,
(xii) The method used to apply the manure, estimated nitrogen
losses based on application method used, and the route of nitrogen
loss,
(xiii) The field(s) to which manure was applied and total acreage
receiving manure,
(xiv) What crop(s) was planted,
(xv) The date that crops were planted in the field, and
(xvi) The crop yields obtained.
(6) Records of the total volume or amount of manure and process
wastewater generated by all animals at the facility during each 12
month period. This must include milk parlor washwater and egg
washwater. The volume or amount may be determined through direct
measurements or an estimated value provided all factors are documented.
(7) Records of rainfall duration, amount of rainfall, and the
estimated volume of any overflow that occurs as the result of any
catastrophic or chronic rainfall event.
(8) A copy of the emergency response plan for the CAFO.
(9) Records of how mortalities are handled by the CAFO.
(10) Name of state approved specialist that prepared or approved
the PNP, or record and documentation of training and certification for
owners or operator writing their own PNP.
Subpart D--Swine, Poultry and Veal
Sec. 412.40 Applicability.
This subpart applies to operations defined as concentrated animal
feeding operations (CAFOs) under 40 CFR 122.23 and includes the
following animals: Swine, each weighing 55 lbs. or more; swine, each
weighing less than 55 lbs.; veal; cattle; chickens; and turkeys.
Sec. 412.41 Effluent limitation attainable by the application of the
best practicable control technology currently available (BPT).
Except as provided in 40 CFR 125.30 through 125.32, any existing
point source subject to this subpart must achieve the following
effluent limitations representing the application of BPT:
(a) For CAFO production areas:
Discharges must achieve the same requirements as specified in
Sec. 412.31(a).
(b) For CAFO land application areas:
Discharges resulting from the application of manure or process
wastewater to crop or pasture land owned or under the control of the
CAFO must achieve the same requirements as specified in Sec. 412.31(b)
and Sec. 412.37.
Sec. 412.42 Effluent limitations attainable by the application of the
best control technology for conventional pollutants (BCT).
Except as provided in 40 CFR 125.30 through 125.32 , any existing
point source subject to this subpart must achieve the following
effluent limitations representing the application of BCT:
(a) For CAFO production areas:
The limitations are the same as specified in Sec. 412.41(a).
(b) For CAFO land application areas:
The limitations are the same as specified in Sec. 412.41(b).
Sec. 412.43 Effluent limitations attainable by the application of the
best available technology economically achievable (BAT).
Except as provided in 40 CFR 125.30 through 125.32, any existing
point source subject to this subpart must achieve the following
effluent limitations representing the application of BAT:
(a) For CAFO production areas:
(1) There must be no discharge of process wastewater pollutants
into U.S. waters.
(2) Any CAFO subject to this subpart must also comply with the
requirements specified in Sec. 412.37(a)(1) through (3).
(b) For CAFO land application areas:
The limitations are the same as specified in Sec. 412.41(b).
Sec. 412.45 New source performance standards (NSPS).
Any new source subject to this subpart must achieve the following
standards:
(a) For CAFO production areas:
(1) There must be no discharge of process wastewater pollutants
into U.S. waters, including any pollutants discharged to ground water
which have a direct hydrological connection to surface waters.
(2) The ground water beneath the production area must be sampled
twice annually to demonstrate compliance with the provisions of
paragraph (a)(1) of this section, unless the CAFO has determined to the
satisfaction of the permitting authority that the ground water beneath
the production area is not connected to surface waters through a direct
hydrologic connection. Ground water samples must be collected up-
gradient and down-gradient of the production area. and analyzed for:
(i) Total coliforms
(ii) Fecal coliform
(iii) Total dissolved solids
(iv) Nitrates
(v) Ammonia
(vi) Chloride
(3) Any CAFO subject to this subpart must also comply with the
requirements specified in Sec. 412.37(a)(1) through (3).
(b) For CAFO land application areas:
Discharges resulting from the application of manure or process
wastewater to crop or pasture land
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owned or under the control of the CAFO must achieve the same
requirements as specified in Sec. 412.31(b) and Sec. 412.37.
(c) Any new source subject to the provisions of this section that
commenced discharging after [insert date 10 years prior to the date
that is 60 days from the publication date of the final rule] and before
[insert date that is 60 days from the publication date of the final
rule] must continue to achieve the standards specified in Sec. 412.15,
provided that the new source was constructed to meet those standards.
For ``toxic'' and nonconventional pollutants, those standards shall not
apply after the expiration of the applicable time period specified in
40 CFR Sec. 122.29(d)(1); thereafter, the source must achieve the
standards specified in paragraphs (a) and (b) of this section.
[FR Doc. 01-1 Filed 1-11-01; 8:45 am]
BILLING CODE 6560-50-P