[Federal Register Volume 71, Number 126 (Friday, June 30, 2006)]
[Proposed Rules]
[Pages 37744-37787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5773]
[[Page 37743]]
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Part IV
Environmental Protection Agency
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40 CFR Parts 122 and 412
Revised National Pollutant Discharge Elimination System Permit
Regulation and Effluent Limitation Guidelines for Concentrated Animal
Feeding Operations in Response to Waterkeeper Decision; Proposed Rule
Federal Register / Vol. 71, No. 126 / Friday, June 30, 2006 /
Proposed Rules
[[Page 37744]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 412
[EPA-HQ-OW-2005-0037; FRL-8189-7]
RIN 2040-AE80
Revised National Pollutant Discharge Elimination System Permit
Regulation and Effluent Limitation Guidelines for Concentrated Animal
Feeding Operations in Response to Waterkeeper Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to revise the National Pollutant Discharge
Elimination System (NPDES) permitting requirements and Effluent
Limitations Guidelines and Standards (ELGs) for concentrated animal
feeding operations (CAFOs) in response to the order issued by the
Second Circuit Court of Appeals in Waterkeeper Alliance et al. v. EPA,
399 F.3d 486 (2nd Cir. 2005). This proposed rule responds to the court
order while furthering the statutory goal of restoring and maintaining
the nation's water quality and effectively ensuring that CAFOs properly
manage manure generated by their operations.
This proposal would revise several aspects of EPA's current
regulations governing discharges from CAFOs. First, EPA proposes to
require only the owners and operators of those CAFOs that discharge or
propose to discharge to seek coverage under a permit. Second, EPA
proposes to require CAFOs seeking coverage under a permit to submit
their nutrient management plan (NMP) with their application for an
individual permit or notice of intent to be authorized under a general
permit. Permitting authorities would be required to review the plan and
provide the public with an opportunity for meaningful public review and
comment. Permitting authorities would also be required to incorporate
terms of the NMP as NPDES permit conditions. Third, this action
proposes to authorize permit writers, upon request by a CAFO, to
establish best management, zero discharge effluent limitations when the
facility demonstrates that it has designed an open containment system
that will comply with the no discharge requirements.
This proposed rule also responds to the court's remand orders
regarding water-quality based effluent limitations (WQBELs) and
pathogens. EPA proposes to clarify that WQBELs are available in permits
with respect to production area discharges and non-precipitation
related discharges from land application, but are statutorily
unavailable in permits for Large CAFOs with respect to precipitation
related land application discharges because the only allowable
discharge from a land application area is due to agricultural storm
water which is by statute exempt from permitting requirements. Finally,
EPA proposes to clarify its selection of BCT technologies for pathogens
(fecal coliform), and reaffirm its decision to set the BCT limitations
for fecal coliform to be equal to the BPT limits established in the
2003 CAFO rule.
DATES: Comments on this proposed action must be received on or before
August 14, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2005-0037 by one of the following methods:
(1) http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
(2) E-mail: [email protected], Attention Docket ID No. EPA-HQ-OW-
2005-0037.
(3) Mail: Send the original and three copies of your comments to:
Water Docket, Environmental Protection Agency, Mail code 4203M, 1200
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No.
OW-2005-0037.
(4) Hand Delivery: Deliver your comments to: EPA Docket Center, EPA
West, Room B102, 1301 Constitution Avenue, NW., Washington, DC,
Attention Docket ID No. OW-2005-0037. Such deliveries are only accepted
during the Docket's normal hours of operation and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2005-
0037. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Water Docket in the EPA
Docket Center, EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Water Docket is (202) 566-2426.
FOR FURTHER INFORMATION CONTACT: For additional information contact
Kawana Cohen, Water Permits Division, Office of Wastewater Management
(4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 564-2345, e-mail address:
[email protected] or Paul Shriner, Engineering and Analysis
Division, Office of Science and Technology (4303T), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number: 202-566-1076, e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
B. What Should I Consider as I Prepare My Comments for EPA?
II. Background
A. The Clean Water Act
B. History of Actions to Address CAFOs under the NPDES
Permitting Program
[[Page 37745]]
C. Ruling by the U.S. Court of Appeals for the Second Circuit
1. Issues Upheld by the Court
2. Issues Vacated by the Court
3. Issues Remanded by the Court
D. What Requirements Still Apply to CAFOs?
E. Status of EPA's Response to the Waterkeeper Decision
III. This Proposal
A. Duty to Apply for a Permit
B. Nutrient Management Plans
C. Remand Concerning Water Quality Based Effluent Limitations
D. New Source Performance Standards for Subpart D Facilities
E. Remand Concerning Pathogens for BCT
IV. Impact Analysis
V. Cross Media Approaches
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
I. General Information
A. Does This Action Apply to Me?
This action applies to concentrated animal feeding operations
(CAFOs) as defined in section 502(14) of the Clean Water Act and in the
NPDES regulations at 40 CFR 122.23. The following table provides a list
of standard industrial codes for operations covered under this revised
rule.
Table 1.--Entities Potentially Regulated by this Rule
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Standarial
North American industrial
Category Examples of regulated entities industry code classification
(NAIC) code
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Federal, State, and Local Government:
Industry................................ Operators of animal production
operations that meet the
definition of a CAFO.
Beef cattle feedlots 112112 0211
(including veal).
Beef cattle ranching and 112111 0212
farming.
Hogs.......................... 11221 0213
Sheep......................... 1241, 11242 0214
General livestock except dairy 11299 0219
and poultry.
Dairy farms................... 11212 0241
Broilers, fryers, and roaster 11232 0251
chickens.
Chicken eggs.................. 11231 0252
Turkey and turkey eggs........ 11233 0253
Poultry hatcheries............ 11234 0254
Poultry and eggs.............. 11239 0259
Ducks......................... 112390 0259
Horses and other equines...... 11292 0272
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is regulated under this rulemaking, you should carefully
examine the applicability criteria in 40 CFR 122.23. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting Confidential Business Information. Do not submit this
information to EPA through www.regulations.gov or e-mail. Clearly mark
the part or all of the information that you claim to be CBI. For CBI
information in a disk or CD-ROM that you mail to EPA, mark the outside
of the disk or CD-ROM as CBI and then identify electronically within
the disk or CD-ROM the specific information that is claimed as CBI. In
addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR Part 2.
2. Tips for Preparing Your Comments. It will be helpful if you
follow these guidelines as you prepare your written comments:
i. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns, and
suggest alternatives.
vii. Explain your views as clearly as possible.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. 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. 1251(a)). Among the core provisions, the CWA establishes the
NPDES permit program to authorize and regulate the discharge of
pollutants from point sources to waters of the U.S. 33 U.S.C. 1342.
[[Page 37746]]
Section 502(14) of the CWA specifically includes CAFOs in the
definition of the term ``point source.'' Section 502(12) defines the
term ``discharge of a pollutant'' to mean ``any addition of any
pollutant to navigable waters from any point source'' (emphasis added).
EPA has issued comprehensive regulations that implement the NPDES
program at 40 CFR Part 122. The Act also provides for the development
of technology-based and water quality-based effluent limitations that
are imposed through NPDES permits to control the discharge of
pollutants from point sources. CWA sections 301(a) and (b).
B. History of Actions to Address CAFOs under the NPDES Permitting
Program
EPA's regulation of wastewater and manure from CAFOs dates to the
1970s. EPA initially issued national effluent limitations guidelines
and standards for feedlots on February 14, 1974 (39 FR 5704), and NPDES
CAFO regulations on March 18, 1976 (41 FR 11458).
In February 2003, EPA issued revisions to these regulations that
focused on the 5% of the nation's animal feeding operations (AFOs) that
presented the highest risk of impairing water quality and public health
(68 FR 7176) (``the 2003 CAFO rule''). The 2003 CAFO rule required the
owners or operators of all CAFOs \1\ to seek coverage under an NPDES
permit. CAFO industry organizations (American Farm Bureau Federation,
National Pork Producers Council, National Chicken Council, and National
Turkey Federation (NTF), although NTF later withdrew its petition) and
environmental groups (Waterkeeper Alliance, Natural Resources Defense
Council, Sierra Club, and American Littoral Society) filed petitions
for judicial review of certain aspects of the 2003 CAFO rule. This case
was brought before the U.S. Court of Appeals for the Second Circuit. On
February 28, 2005, the court ruled on these petitions and upheld most
provisions of the 2003 rule but vacated and remanded others.
Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005). The
court's decision, which applies nationally, is described in detail
below.
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\1\ The Clean Water Act regulates the conduct of persons, which
includes the owners and operators of CAFOs, rather than the
facilities or their discharges. To improve readability in this
preamble, reference is made to ``CAFOs'' as well as ``owners and
operators of CAFOs.'' No change in meaning is intended.
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The revisions to the 2003 CAFO rule being proposed today relate
directly to the changes required by the court's decision and continue
to maintain the focus on regulating discharges from the universe of
high-risk AFOs.
C. Ruling by the U.S. Court of Appeals for the Second Circuit
The Second Circuit's decision in Waterkeeper upheld certain
challenged provisions of the 2003 rule and vacated or remanded others,
as follows.
1. Issues Upheld by the Court
This section discusses provisions of the 2003 CAFO rule that were
challenged by either industry or environmental petitioners, but were
upheld by the Waterkeeper court and therefore remain unchanged. EPA is
not proposing to revise any of these provisions and is not soliciting
comment on them.
(a) Land Application Regulatory Framework and Interpretation of
``Agricultural Storm Water''
The Waterkeeper court upheld EPA's authority to regulate, through
NPDES permits, the discharge of manure, litter, and process wastewater
that CAFOs apply to crop or forage land. The court rejected the
industry petitioners' claim that land application runoff must be
channelized before it can be considered to be a point source discharge
subject to permitting. The court noted that the CWA expressly defines
the term ``point source'' to include ``any * * * concentrated animal
feeding operation * * * from which pollutants are or may be
discharged,'' and found that the Act ``not only permits, but demands''
that land application discharges be construed as discharges ``from'' a
CAFO. Waterkeeper Alliance et al. v. EPA, 399 F.3d at 510.
The Waterkeeper court also upheld EPA's determination in the 2003
CAFO rule that precipitation-related discharges of manure, litter, or
process wastewater from land application areas under the control of a
CAFO qualify as ``agricultural stormwater'' only where the CAFO has
applied the manure in accordance with nutrient management practices
that ensure ``appropriate agricultural utilization'' of the manure,
litter, and process wastewater nutrients. EPA's interpretation of the
Act in this regard was reasonable, the court found, in light of
Congressional intent in excluding agricultural stormwater from the
meaning of the term ``point source'' and given the precedent set in an
earlier Second Circuit case, Concerned Area Residents for the
Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994). Waterkeeper
Alliance et al. v. EPA, 399 F.3d at 508-09.
(b) Effluent Guidelines
--Identification of best available technologies. The court rejected the
environmental organizations' claim that when EPA chose the pollution
control technologies on which to base effluent guidelines for CAFOs,
the Agency did not meet its duty to identify the single CAFO with the
best-performing technology. The court found that EPA had collected
extensive data on the waste management systems at CAFOs and had
considered approximately 11,000 public comments on the proposed CAFO
rule, and on those bases, EPA had adequately justified its selection of
``best available technologies'' on which to base the regulations.
--Groundwater controls. The court upheld EPA's decision in the 2003
rule relating to groundwater controls. In the 2003 rule EPA stated that
the Agency believed that requirements limiting the discharge of
pollutants to surface water via groundwater that has a direct
hydrologic connection to surface water were beyond the scope of the
ELGs promulgated in the rule. The Agency also stated that nothing in
the 2003 rule was to be construed to expand, diminish, or otherwise
affect the jurisdiction of the CWA over discharges to surface water via
groundwater that has a direct hydrologic connection to surface water.
--Economic methodologies. The court upheld the analytic methodologies
that EPA used for determining whether the technology-based permit
requirements for CAFOs set in the 2003 rule would be economically
achievable by the industry as a whole.
2. Issues Vacated by the Court
The following are the elements of the 2003 rule that the
Waterkeeper court found to be unlawful and therefore vacated.
(a) Duty to Apply
The CAFO industry organizations argued that the EPA exceeded its
statutory authority by requiring all CAFOs to either apply for NPDES
permits or demonstrate that they have no potential to discharge. The
court agreed with the CAFO industry petitioners on this issue and
therefore vacated the ``duty to apply'' provision of the 2003 CAFO
rule.
The court found that the duty to apply, which the Agency had based
on a presumption that most CAFOs have at least a potential to
discharge, was invalid, because the CWA subjects only actual discharges
to permitting
[[Page 37747]]
requirements rather than potential discharges. The court acknowledged
EPA's policy considerations for seeking to impose a duty to apply but
found that the Agency lacked statutory authority to do so.
(b) Nutrient Management Plans
The environmental organizations argued that the 2003 CAFO rule was
unlawful because: (1) The rule empowered permitting authorities to
issue permits without any meaningful review of a CAFO's NMP, (2) the
rule failed to require that the terms of the nutrient management plan
be included in the NPDES permit, and (3) the permitting approach
established by the rule violated the Clean Water Act's public
participation requirements. The court agreed with the environmental
petitioners on these three issues.
The court relied on provisions of the Act that authorize point
source discharges only where NPDES permits ``ensure that every
discharge of pollutants will comply with all applicable effluent
limitations and standards,'' citing CWA sections 402(a)(1), (a)(2), and
(b). Because the 2003 CAFO rule did not provide for permitting
authority review of a CAFO's nutrient management plan before the permit
was issued, the court found that the rule did not ensure that each
Large CAFO's discharges comply with these CWA provisions. In addition,
the court found that by not making the NMPs part of the permit and
available to the public for review, the 2003 CAFO rule violated public
participation requirements in sections 101(e) and 402 of the Act. The
court also found that the terms of the NMPs themselves are ``effluent
limitations'' as that term is defined in the Act and therefore must be
made part of the permit and enforceable as required under CWA sections
301 and 402.
3. Issues Remanded by the Court
The Waterkeeper court also remanded other aspects of the CAFO rule
to EPA ``for further clarification and analysis,'' as follows:
(a) Water Quality-Based Effluent Limits
The court agreed with EPA that agricultural stormwater is excluded
from the meaning of the term ``point source'' and therefore is not
subject to water quality-based effluent limitations in permits.
However, the court directed EPA to ``clarify the statutory and
evidentiary basis for failing to promulgate water quality-based
effluent limitations for discharges other than agricultural stormwater
discharges as that term is defined in 40 CFR 122.23(e),'' and to
``clarify whether States may develop water quality-based effluent
limitations on their own.''
(b) New Source Performance Standards--100-Year Storm Standard
The 2003 CAFO rule set the new source performance standards (NSPS)
for swine, poultry, and veal CAFOs at a level of zero discharge. A CAFO
in these categories could fulfill this requirement by showing that
either (1) its production area was designed to contain all manure,
litter, process wastewater, and precipitation from the 100-year, 24-
hour storm, or (2) it would comply with ``voluntary superior
environmental performance standards'' based on innovative technologies,
under which a discharge from the production area would be allowed if it
was accompanied by an equivalent or greater reduction in the quantity
of pollutants released to other media (e.g., air emissions). The court
found that EPA had neither justified in the record nor provided an
adequate opportunity for public comment with respect to either of these
provisions. As a result, the court remanded these provisions to EPA to
clarify, via a process that adequately involves the public, the
statutory and evidentiary basis for them.
(c) BCT Effluent Guidelines for Pathogens
The court held that the 2003 CAFO rule violated the CWA because EPA
had not made an affirmative finding that the BCT-based Effluent
Limitations Guidelines (ELGs)--i.e., the ``best conventional
technology'' guidelines for conventional pollutants such as fecal
coliform--do in fact represent BCT technology. The court remanded this
issue to EPA to make such a finding based on the BAT/BPT technologies
EPA studied or to establish specific BCT limitations for pathogens
based on some other technology.
D. What Requirements Still Apply to CAFOs?
The Waterkeeper decision either upheld or did not address most
provisions of the 2003 CAFO rule. This section describes certain key
portions of the rule that were not challenged in Waterkeeper. These
unchallenged provisions are not addressed in or affected by today's
proposal, except to provide background information. EPA has not
reconsidered its initial decision regarding these provisions and is not
soliciting comment on them.
The definitions provided in 40 CFR 122.23(b) of the 2003 CAFO rule
remain in effect and are unchanged. First, an operation must be defined
as an animal feeding operation (AFO) before it can be defined as a
concentrated animal feeding operation (CAFO). 40 CFR 122.23. The term
``animal feeding operation'' is defined by EPA regulation 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.''
Whether an AFO is a CAFO depends primarily on the number of animals
confined, which is also unchanged. Large CAFOs are AFOs that confine
more than the threshold number of animals detailed in 40 CFR
122.23(b)(4). Medium CAFOs confine fewer animals than Large CAFOs and
also: (1) Discharge pollutants into waters of the U.S. through a man-
made ditch, flushing system, or other similar man-made device; or (2)
discharge pollutants directly into waters of the U.S. which originate
outside of and pass over, across, or through the facility or otherwise
come into direct contact with the confined animals. 40 CFR
122.23(b)(6)(ii). The NPDES permitting authority also may, on a case-
by-case basis, designate any AFO, including small AFOs, as a CAFO after
conducting an on-site inspection and finding that the facility ``is a
significant contributor of pollutants to waters of the United States.''
40 CFR 122.23(c). The permitting authority may not exercise its
authority to designate a Small 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. 40 CFR 122.23(c)(3).
Although the Waterkeeper decision invalidated the duty to apply
provision promulgated in the CAFO regulations at 40 CFR 122.23(d),
there remains in the NPDES regulations a different duty to apply
provision, at 40 CFR 122.21(a), that applies to point sources in
general, including CAFOs. While the CAFO provision in Sec. 122.23(d)
would have required all CAFOs to apply for a permit, Sec. 122.21(a)
requires only a person who ``discharges or proposes to discharge
pollutants'' to apply. The Waterkeeper decision did not invalidate
Sec. 122.21(a), nor is this provision's continued application to CAFOs
inconsistent with the decision in Waterkeeper. Therefore, under Sec.
122.21(a), CAFOs currently are
[[Page 37748]]
required to apply for an NPDES permit if they discharge or propose to
discharge pollutants other than agricultural stormwater, which is not a
point source discharge.
It should also be noted that the definitions of both ``Medium
CAFO'' and ``Small CAFO'' in the regulations include only those
facilities that have an actual discharge. Thus, under Sec. 122.21(a),
all Medium and Small CAFOs must apply for a permit.
Nutrient management planning requirements for permitted CAFOs
established in the 2003 CAFO rule also were unaffected by the court's
ruling. All permitted CAFOs must develop and implement an NMP that
meets the requirements of 40 CFR 122.42(e) and, for Large CAFOs subject
to 40 CFR Part 412, subpart C or D, 40 CFR 412.4. The NMP identifies
the necessary actions to ensure that runoff is eliminated or minimized
through proper and effective manure, litter, and wastewater management,
including compliance with the ELGs. Permitted CAFOs must comply with
all applicable recordkeeping and reporting requirements, including
those specified in 40 CFR 122.42(e).
ELG requirements for existing Large CAFOs also are unaffected by
the court decision, with the exception of changes to the NMP compliance
dates and BCT. ELG requirements ensure the appropriate storage of
manure, litter, and process wastewater and proper land application
practices. They vary depending upon the types of animals confined:
Subpart A for horses and sheep; Subpart B for ducks; Subpart C for
dairy cattle, heifers, steers, and bulls; and Subpart D for swine,
poultry, and veal calves. (40 CFR Part 412). Additionally, New Source
requirements for beef and dairy operations remain unchanged (40 CFR
412.35).
Permitted small and medium CAFOs are not subject to the ELGs
specified in part 412. Rather, they must comply with technology-based
requirements developed by the permitting authority on a case-by-case
basis (i.e., Best Professional Judgment (BPJ)).
E. Status of EPA's Response to the Waterkeeper Decision
In addition to the changes made through this proposed rule, EPA
extended certain deadlines in the NPDES permitting requirements and
ELGs in a separate rulemaking in order to allow the Agency adequate
time to complete this rulemaking in response to the Waterkeeper
decision in advance of those deadlines. (71 FR 6978). That rule revised
dates established in the 2003 CAFO rule by which facilities newly
defined as CAFOs were required to seek permit coverage and by which all
CAFOs were required to have nutrient management plans developed and
implemented. EPA extended the date by which operations defined as CAFOs
as of April 14, 2003, who were not defined as CAFOs prior to that date,
must seek NPDES permit coverage, from February 13, 2006, to July 31,
2007. EPA also amended the date by which operations that become defined
as CAFOs after April 14, 2003, due to operational changes that would
not have made them a CAFO prior to April 14, 2003, and that are not new
sources, must seek NPDES permit coverage, from April 13, 2006, to July
31, 2007. Finally, EPA extended the deadline by which CAFOs are
required to develop and implement nutrient management plans, from
December 31, 2006, to July 31, 2007. That rulemaking revised all
references to the date by which NMPs must be developed and implemented
as specified in the 2003 CAFO rule.
III. This Proposal
This proposed rule is in response to the Second Circuit Court's
vacature and remand orders. EPA intends to make only those changes
necessary to address the court's decision.
A. Duty To Apply for a Permit
1. Provisions in the 2003 CAFO Rule
(a) Duty To Apply
The 2003 CAFO rule required all CAFOs to seek coverage under an
NPDES permit unless the Director determined that the CAFO has no
potential to discharge. The breadth of this duty to apply was based on
EPA's presumption that most CAFOs have a potential to discharge
pollutants into waters of the United States. Therefore, all CAFOs were
required to apply for a permit, except where the Director determined a
CAFO had no potential to discharge.
(b) ``No Potential To Discharge'' Determination
The 2003 CAFO rule included a process for CAFOs to seek a ``no
potential to discharge'' determination by the Director. Where the
Director determined, based on information supplied by the CAFO
operator, that a CAFO had no potential to discharge manure, litter, or
process wastewater, the CAFO operator had no duty to apply for a
permit, unless circumstances at the facility changed such that the
facility would have the potential to discharge. Examples of facilities
that possibly would have qualified for this exemption included
facilities in very arid areas, facilities that are downslope from
waters of the United States, and facilities with completely enclosed
operations.
2. Summary of the Second Circuit Court Decision
The Second Circuit Court of Appeals vacated the provision that
required all CAFO owners or operators to apply for an NPDES permit. The
court held that the Clean Water Act authorizes EPA to require permits
for the actual discharge of pollutants, but not for mere potential
discharges. Because the 2003 CAFO rule imposed an obligation on all
CAFOs to either apply for an NPDES permit or affirmatively demonstrate
that they have no potential to discharge, the court ruled that it
exceeded EPA's authority under the Clean Water Act.
3. This Proposal
To address the court's decision on the duty to apply, EPA is
proposing changes to the 2003 CAFO rule in two areas:
Revising the requirement that all CAFOs apply for an NPDES
permit; and
Eliminating the procedures for a no potential to discharge
determination.
EPA also seeks to clarify how unpermitted CAFOs may meet the
agricultural stormwater exemption when they land apply manure, litter,
or process wastewater.
(a) Requirement That All CAFOs With a Discharge Seek Permit Coverage
EPA is proposing to delete the ``duty to apply'' requirement
adopted in the 2003 rule, which states that all CAFO owners or
operators must seek coverage under an NPDES permit (40 CFR 122.21(a)(1)
and 40 CFR 122.23(a) and (d)(1)).
Today's proposed rule would replace the ``duty to apply''
requirement of the 2003 rule with a requirement that all CAFOs that
``discharge or propose to discharge'' must seek coverage under an NPDES
permit. This proposed change would address the Waterkeeper court's
ruling and would hold CAFO owners and operators to the same ``duty to
apply'' requirement as already exists for point sources under 40 CFR
122.21(a)(1).
The result of this proposed revision is that only owners and
operators of those CAFOs that discharge or propose to discharge would
be required to seek coverage under an NPDES permit. This revised duty
to apply applies to all owners and operators that discharge or propose
to discharge, regardless of the volume or duration of the discharge
except for discharges of agricultural stormwater (see below). A
facility may seek permit coverage in one of two
[[Page 37749]]
ways, by submitting an application for an individual permit or by
submitting a notice of intent to be covered by a general permit that
has been issued by the permitting authority. Generally, under this
proposal, it would be the CAFO's responsibility to decide whether or
not to seek permit coverage based on whether they discharge or propose
to discharge. This is how the NPDES program operates for other point
sources. Any CAFO that discharged or proposed to discharge and failed
to obtain an NPDES permit would be in violation of the NPDES regulatory
requirement to seek coverage under an NPDES permit. A facility with an
actual discharge would also be in violation of the CWA prohibition
against discharging without an NPDES permit (33 U.S.C. 1311(a)).
Any discharge from a CAFO, even one that is unplanned or
accidental, is illegal unless it is authorized by the terms of a
permit. Many CAFOs have conditions that may result in a discharge. For
example, manure structures that are improperly designed or, for other
reasons, have insufficient capacity (e.g., due to facility expansion)
may discharge. In addition, discharges can occur from a properly
designed containment structure that is improperly operated and
maintained or as a result of precipitation that exceeds the operating
capacity of the structure. In the absence of an actual discharge or
proposed discharge, CAFOs with such conditions are not required under
the terms of today's proposed rule to obtain an NPDES permit. However,
the owner or operator of a CAFO that fails to obtain an NPDES permit
and has a discharge is subject to State or federal enforcement, as well
as liability from citizen suits under CWA Section 505(a).
Because discharges are prohibited from unpermitted CAFOs, NPDES
permit coverage reduces CAFO operator risk and provides certainty to
CAFO operators regarding activities and actions that are necessary to
comply with the Clean Water Act. Compliance with the permit is deemed
compliance with the CWA and thus acts as a shield against EPA
enforcement or citizen suits under CWA Section 402(k). Furthermore,
under the 2003 rule, most CAFO NPDES permits will incorporate ELG
provisions that allow for discharge when precipitation causes an
overflow from a structure that is properly designed, constructed,
operated, and maintained, in accordance with the applicable design
standards. Finally, upset provisions can protect permittees from legal
liability when emergencies or natural disasters cause discharges beyond
the permittee's reasonable control, as provided in Sec. 122.41(n).
This protection is not available to unpermitted CAFOs.
There are many factors a CAFO owner or operator should consider in
determining whether to seek permit coverage. For example, if the CAFO
is in a flood plain, subject to high annual precipitation, or subject
to lengthy rainy seasons, it is likely to have a discharge if the CAFO
drains to a water of the United States. Other factors likely to result
in a discharge include runoff from open feed bunkers, field storage, or
other stockpiles exposed to precipitation; lagoons that are not
sufficiently pumped down for the upcoming winter season; holding of
process wastewater for summer irrigation that precludes adequate
capacity for chronic rainfalls; and inadequate containment due to
unavailability of land for manure, litter, or process wastewater
application due to timing constraints associated with, for example,
saturated ground or imminent rain. In addition, a discharge may occur
from land application due to improper maintenance or operation of
manure handling equipment that may lead to spills, and application of
manure, litter or process wastewater to land in such a way that it does
not qualify for the agricultural stormwater exemption (see below).
EPA recognizes that some CAFOs have a higher likelihood of actually
discharging due to certain geographic and physiographic conditions. In
order to guide CAFOs in making a decision on whether or not to seek
permit coverage, EPA suggests that Large CAFOs falling into one or more
of these categories should consider seeking permit coverage (this list
is not intended to be exhaustive):
1. Where a CAFO is located in close proximity to waters of the
United States with land classified in USDA Land Use Capability Classes
III through VIII \2\;
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\2\ Land capability classification is a system of grouping soils
primarily on the basis of their capability to produce common
cultivated crops and pasture plants without deteriorating over a
long period of time. Soil survey map units contained in United
States Department of Agriculture (USDA) soil surveys typically are
assigned a land capability classification. The eight classes are
defined as follows: Class 1 soils have slight limitations that
restrict their use; Class 2 soils have moderate limitations that
reduce the choice of plants or require moderate conservation
practices; Class 3 soils have severe limitations that reduce the
choice of plants or require special conservation practices, or both;
Class 4 soils have very severe limitations that restrict the choice
of plants or require very careful management, or both; Class 5 soils
have little or no hazard of erosion but have other limitations,
impractical to remove, that limit their use mainly to pasture,
range, forestland, or wildlife food and cover; Class 6 soils have
severe limitations that make them generally unsuited to cultivation
and that limit their use mainly to pasture, range, forestland, or
wildlife food and cover; Class 7 soils have very severe limitations
that make them unsuited to cultivation and that restrict their use
mainly to grazing, forestland, or wildlife; and Class 8 soils and
miscellaneous areas (areas dominated by disturbed soil) have
limitations that preclude their use for plant production and limit
their use to recreation, wildlife, or water supply or for esthetic
purposes.
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2. Where the CAFO's production area is not designed and operated
for zero discharge, including where the containment structure is not
designed or maintained to contain all manure, litter, process
wastewater, precipitation and runoff that may accumulate during periods
when the facility is unable to land apply in accordance with a nutrient
management plan;
3. Where a CAFO that land applies does not have or is not
implementing nutrient management planning that is designed to ensure
that any land application runoff qualifies for the agricultural
stormwater exemption; and
4. Where the CAFO has had a discharge in the past and has not
corrected the factors that caused the discharge to occur.
EPA seeks comment on the completeness and accuracy of the above
list of situations where a discharge may occur to further assist CAFOs
in their decisions regarding whether or not to seek permit coverage.
EPA also solicits comment on its proposal to replace the duty to
apply provision promulgated in the 2003 CAFO rule with the narrower
duty to apply provision described above.
(b) ``No Potential to Discharge'' Determination
EPA is proposing to delete the regulatory provisions adopted in the
2003 CAFO rule allowing CAFOs to demonstrate that they have no
potential to discharge and authorizing the Director to make such a
determination. 40 CFR 122.23(d)(2) and 122.23(f). Such a designation
would be irrelevant because the proposed rule requires only those CAFOs
that discharge or propose to discharge to seek coverage under a permit.
(c) Agricultural Storm Water
The discharge of manure, litter, or process wastewater from a land
application area under the control of a CAFO is a discharge subject to
NPDES permit requirements, unless the discharge is agricultural
stormwater, which is excluded from the meaning of the term ``point
source'' under 33 U.S.C. 1362(14).
As described in the preamble to the 2003 rule, EPA recognized that
manure, litter, or process wastewater applied in accordance with
practices designed to
[[Page 37750]]
ensure appropriate agricultural utilization of nutrients fulfills an
important agricultural purpose, namely the fertilization of crops,
while reducing the potential for a subsequent discharge of pollutants
to waters of the U.S. However, EPA also recognized that some runoff may
occur during rainfall events even when a CAFO applies manure, litter,
or process wastewater in accordance with practices designed to ensure
appropriate agricultural utilization of nutrients. EPA believed that
the potential for runoff and water quality impairments would be
minimized where a CAFO implemented a site-specific NMP in conformance
with 40 CFR 122.42(e)(1)(vi)-(ix) and, for Large CAFOs, the additional
management practices required in 40 CFR 412.4(c).
In the 2003 rule, EPA promulgated a definition of agricultural
stormwater that included compliance with 40 CFR 122.42(e)(1)(vi-ix).
The referenced regulatory text includes requirements for edge-of-field
buffers, testing of manure and soil, land application at agronomic
rates, and record keeping. While not explicitly included in the
definition, Large CAFOs were also required under the effluent
guidelines to comply with technical standards established by the
Director, in accordance with 40 CFR 412.4(c). These more specific
limitations implemented the general requirements at 40 CFR
122.42(e)(1)(vi-ix), and because all CAFOs with a potential to
discharge were required to obtain permits, virtually all Large CAFOs
were required to comply with them.
Under today's proposed rulemaking, Large CAFOs that have only
agricultural stormwater discharges from their land application area,
and no other discharges or proposed discharges from their production or
land application areas, would no longer be required to seek permit
coverage. (See 40 CFR 122.23(e).) However, precipitation-related
discharges from CAFO land application areas would be considered
agricultural stormwater only where the CAFO land applies in accordance
with nutrient management practices that meet the requirements of 40 CFR
122.42(e)(1)(vi)-(ix). EPA believes that, in order for the owner or
operator of a CAFO to qualify for the statutory agricultural stormwater
exemption, manure, litter, and process wastewater must be applied in
compliance with technical standards that are, in significant part,
intended to ensure the appropriate agricultural utilization of the
nutrients contained in the manure, litter, and process wastewater.
The Second Circuit upheld EPA's definition of agricultural
stormwater, and EPA is not proposing to change the definition at this
time, or requesting comment on such a change. However, EPA is
considering requiring explicitly that Large CAFOs that are not
permitted because they do not discharge or propose to discharge comply
with the technical standards for land application established by the
Director (in addition to meeting the requirements of 40 CFR
122.42(e)(1)(vi-ix)) in order for runoff from their fields to be
considered agricultural stormwater (which is exempt from permitting
requirements). Even if EPA does not adopt this requirement explicitly,
EPA believes that unpermitted Large CAFOs should incorporate the
technical standards established by the Director into their NMPs. EPA
also recommends that small or medium AFOs use nutrient management
practices consistent with 40 CFR 122.42(e)(1)(vi-ix) and comply with
the applicable technical standards in their land application of manure,
litter, or process wastewater. EPA requests comment on this issue.
Unpermitted CAFOs that land apply manure, litter, or process
wastewater must document that they are land applying in accordance with
the requirements described above in order to qualify for the statutory
exclusion for agricultural stormwater. (See 40 CFR 122.42(e)(1)(ix).)
The documentation required includes both the nutrient planning and the
additional recordkeeping necessary to demonstrate that the CAFO
properly land applied manure, litter, or process wastewater in
accordance with 40 CFR 122.42(e)(1)(vi)-(ix), including the technical
standards used to translate these requirements into specific land
application rates and practices. EPA believes that an appropriate
approach to planning and documenting such practices is by preparing a
comprehensive nutrient management plan in accordance with guidance
provided by USDA and the appropriate technical standards. Whatever form
the documentation takes, it must be maintained on site. This
documentation is crucial in determining whether the CAFO is land
applying manure, litter, or process wastewater in a manner that ensures
the appropriate agricultural utilization of nutrients and, as a result,
is not illegally discharging pollutants from land application areas.
B. Nutrient Management Plans
1. Provisions in the 2003 CAFO Rule Affected by the Court Decision
(a) Requirement to Develop and Implement a Nutrient Management Plan
Under the 2003 CAFO rule, NPDES permits for all CAFOs must include
a requirement for the permittee to develop and implement a nutrient
management plan. At a minimum, the NMP must include BMPs and procedures
necessary to achieve effluent limitations and standards. The plan must,
to the extent applicable, include the minimum elements established at
40 CFR 122.42(e)(1)(i)-(ix). For Large CAFOs in the cattle, swine,
poultry, and veal subcategories, the NMP must also meet the more
detailed requirements in the Part 412 effluent limitations guidelines.
For Small and Medium CAFOs, or other operations not otherwise subject
to Part 412 requirements for land application, the required elements of
a nutrient management plan would be further specified in the permit
based on the best professional judgment (BPJ) of the permitting
authority. The Second Circuit's decision did not affect these
provisions and EPA is not revisiting them or soliciting comments.
(b) Due Dates for Developing and Implementing Nutrient Management Plans
The 2003 CAFO rule required all CAFOs to develop and implement an
NMP by December 31, 2006, except that CAFOs seeking to obtain coverage
under a permit subsequent to that date were required to have an NMP
developed and implemented upon the date of permit coverage. This timing
was consistent with the dates for the implementation of the ELG, which
required existing Large CAFOs to implement the land application
requirements at 40 CFR 412.4(c) by December 31, 2006. (Following the
court decision these dates were extended to July 31, 2007, to give EPA
time to complete the current rulemaking (see Section II.E).)
As discussed in the preamble to the 2003 CAFO rule, EPA believed
that these dates were reasonable given that operations would have had
three and a half years from the time the 2003 rule was issued to
conduct the necessary planning and construction to implement an NMP.
For Large CAFOs that are new sources (i.e., those commencing
construction after the effective date of the 2003 CAFO rule), the land
application requirements at 40 CFR 412.4(c) apply immediately.
EPA concluded that this timeframe also allowed States to update
their
[[Page 37751]]
NPDES programs and issue permits to reflect the NMP requirements of the
2003 CAFO rule and provided flexibility for permit authorities to
establish permit schedules based on specific circumstances, including
prioritization of nutrient management plan development and
implementation based on site-specific water quality risks and the
availability of technical expertise for development of NMPs.
2. Summary of the Second Circuit Court of Appeals Decision on Nutrient
Management Plans
As previously discussed, the Second Circuit Court of Appeals found
that the terms of the NMPs were effluent limitations and vacated the
2003 CAFO rule insofar as the rule allowed permitting authorities to
issue NPDES permits to CAFOs without: reviewing the terms of the
nutrient management plans, providing for adequate public participation
in the development, revision, and enforcement of the nutrient
management plans, and including the terms of the nutrient management
plan in the permit.
The decision did not affect the required contents of nutrient
management plans established at 40 CFR 122.42(e)(1) and 40 CFR
412.4(c)(1) in the 2003 CAFO rule.
The Second Circuit court decision did not vacate any NPDES permits
issued pursuant to the 2003 CAFO rule. Therefore, such permits already
issued to CAFOs by States or EPA prior to June 27, 2005 (the effective
date of the court's decision), are not directly affected by the court
decision and the nutrient management plan requirements in those permits
remain in effect until and unless the permits are modified, revoked and
reissued, or terminated in accordance with State regulations.
3. This Proposal
To address the court's decision, EPA is proposing regulatory
revisions to the 2003 CAFO rule and other provisions of the NPDES
regulations to provide for:
Receipt and review of the nutrient management plan by the
permitting authority prior to issuing an individual permit or granting
coverage under a general permit;
Procedures to provide opportunity for adequate public
participation prior to issuing an individual permit or granting
coverage under a general permit; and
Incorporation of the terms of the nutrient management plan
into the NPDES permit.
In proposing these revisions, EPA has devoted particular attention
to the process for issuance of general permits, because most CAFOs are
expected to be covered by general permits and, for those that will be
permitted under individual permits, the individual permitting process
already allows for review of NMPs by the permitting authority, public
review of an NMP as part of the individual permit application process,
and incorporation of the terms of the NMP into the individual permit
consistent with the CWA. Further, EPA proposes a process to address
changes to the NMP once permit coverage is granted, for both individual
and general permits. To effectuate these changes, EPA is proposing
regulatory revisions to 40 CFR 122.21, 122.23, 122.28, 122.42, 122.62,
and 122.63. In addition, in a separate rulemaking EPA extended the
deadlines set in the 2003 CAFO rule for NMP development and
implementation, as well as for newly defined CAFOs to seek permit
coverage. (71 FR 6978.)
The preamble discussion that follows is divided into six sections
to separately address each of the following issues:
CAFO permit application and notice of intent requirements;
Procedures for permitting authority review;
Procedures for public review and comment;
Incorporation of nutrient management plan terms in NPDES
permits;
Changes to nutrient management plans; and
Required dates to seek coverage under a permit and submit
an NMP.
(a) CAFO Permit Application or Notice of Intent Requirements for
Nutrient Management Plans
In order to satisfy the court's requirements that the terms of a
nutrient management plan must be publicly reviewed and incorporated
into the permit, EPA is proposing to revise 40 CFR 122.21(i)(1)(x) to
require the applicant to submit, as part of its permit application or
notice of intent (NOI), a nutrient management plan developed in
accordance with the provisions of 40 CFR 122.42(e)(1) and 40 CFR
412.4(c)(1), as applicable. Although this proposed change would be
codified in the section of the regulations applicable to individual
permit applications (40 CFR 122.21(i)(1)), it would also apply to
notices of intent to be covered by a general permit, because 40 CFR
122.28(b)(2)(ii), the regulation governing notices of intent for
general permits, incorporates the requirements of 40 CFR 122.21(i)(1)
by reference. EPA Application Form 2B will also be revised to reflect
these changes. The revised form is provided as Appendix A to this
notice.
This approach is consistent with the decision of the Second Circuit
Court of Appeals, which left undisturbed the basic substantive
requirements for nutrient management plans in the 2003 CAFO rule. The
proposed revisions would not change the required contents of the NMP,
but would now require CAFOs to submit the plan with the application or
the notice of intent rather than only at the request of the Director.
The permitting authority would then make the nutrient management plan
available for review prior to developing an individual permit or
providing coverage under an NPDES general permit.
(b) Procedures for Permitting Authority Review
Once the permitting authority receives an application or an NOI
from a CAFO seeking permit coverage, it would be the responsibility of
the permitting authority to review the application or NOI to ensure
that the nutrient management plan meets the requirements of 40 CFR
122.42(e)(1) and, for Large CAFOs, the applicable requirements of 40
CFR 412.4(c). As part of that process, the Director would review the
NMP for completeness and sufficiency. EPA believes that this review
process responds to the Waterkeeper decision by providing for
permitting authority review of the NMP.
For individual permits, the NMP would be submitted and reviewed as
part of the permit application. The decision-making procedures in 40
CFR Part 124 continue to apply to the Director's review of the
application, which now would include the NMP. Part 124 requires review
of the completeness and sufficiency of the permit, includes an
opportunity for the CAFO to modify the plan or provide additional
information to the permitting authority, and provides for a final
decision by the Director after an opportunity for public comment and a
public hearing.
While the review process for NMPs in individual permits is already
established in existing NPDES regulations, there are gaps in the
requirements for general permitting of CAFOs that EPA proposes to fill
in order to address the Second Circuit Court decision. Specifically,
EPA is proposing new regulatory provisions to establish permitting
authority review of NMPs for CAFO general permits. These procedures are
in the proposed new Paragraph (d) to be added to 40 CFR 122.28.
Proposed 40 CFR 122.28(d) would require the Director to review the
NMP submitted with the NOI and to take
[[Page 37752]]
appropriate steps to ensure that the NMP meets the requirements of the
regulations. If upon review the permitting authority determines that
additional information is necessary to complete the notice of intent or
clarify, modify, or supplement previously submitted material, the
Director would notify the CAFO owner or operator and request the
appropriate information be provided. When the NOI is complete the
permitting authority would notify the public of its receipt and of the
terms of the nutrient management plan proposed to be incorporated into
the existing general permit as terms and conditions applicable to that
CAFO. Following an opportunity for public comment and public hearing,
the permitting authority would decide whether to authorize coverage
under the general permit and incorporate the terms of the NMP into the
general permit for that CAFO.
EPA is considering the use of a template which could be used as a
voluntary tool to facilitate completion of the NMP by CAFO applicants,
as well as to facilitate review by the permitting authority. Such a
template would help to systematically organize the information
necessary to satisfy the NMP requirements in the regulation. The
template could, for example, be used as a form, that when completed by
the operator, and approved by the permitting authority, could suffice
as the NMP itself. Alternatively, it could also be used as a checklist
that the operator and/or permitting authority could use to organize the
information in the NMP and to assist in assessing its adequacy (see
Section III.B.3.d, below). It would be up to the permitting authority's
discretion as to how to incorporate the terms of the NMP into the
permit and permitting authorities might need to tailor any template to
their permit process and technical requirements, including the
technical standards established by the Director.
EPA has developed a draft template for public review that is
intended to be user friendly. It follows the requirements for an NMP
identified in 40 CFR 122.42(e) relating to: manure storage; management
of animal mortalities; diversion of clean water; prevention of direct
contact of animals with waters of the US; chemical handling; site-
specific conservation practices; protocols for testing manure, litter,
process wastewater and soil; protocols for land application; and
recordkeeping. This draft template is in the public record for this
rulemaking at www.regulations.gov under docket EPA-HQ-OW-
2005-0037 and is also available on the EPA Web site at www.epa.gov. EPA
is interested in receiving feedback on the form and content of the
template.
(c) Procedures for Public Participation Prior to Permit Coverage
As noted above, the regulatory procedures for public participation
in the issuance of individual permits are already established. (See
generally, 40 CFR Part 124.) Because the NMP would be part of the
individual permit application, it would be subject to existing
regulations requiring public participation, including the requirement
for public notice (40 CFR 124.10) and the opportunity for the public to
provide comments and request a public hearing (40 CFR 124.11). Because
of the proposed regulatory change requiring nutrient management plans
to be submitted with the permit application (see discussion at
II.B.3.i.; 40 CFR 122.21 and 122.28), the public would have access to
the nutrient management plan prior to permit issuance and would also
have full opportunity to comment on the adequacy of the plan and on the
nutrient management terms and conditions of the draft NPDES permit
developed for the specific CAFO facility. EPA believes that this
process responds to the court's decision.
The general permit issuance process differs from the individual
permitting process discussed above in the way in which a permit is
developed and the means by which individual facilities obtain coverage
under the permit. A general permit is developed by the permitting
authority to cover multiple facilities without the need to receive
individual permit applications from facilities in advance of the
development of the permit. Once the draft general permit is developed,
the public (including potential future permittees) is provided the
opportunity to review the permit, submit comments, and request a
hearing. After considering any comments submitted, the permitting
authority then finalizes the general permit. Once the final general
permit is issued, facilities may submit a notice of intent (NOI)
seeking coverage under the permit. Typically, the permitting authority
then grants coverage, without the need for further public notice and
comment, or requires the facility to seek coverage under an individual
permit.
Following the Waterkeeper decision, general permits for CAFOs must
be modified, once issued, to include the terms of an NMP applicable to
a specific CAFO. Moreover, Waterkeeper requires that the public have an
opportunity to comment on the incorporation of NMP requirements into
the permit. Thus, a second round of public notice and comment is
necessary when providing coverage for CAFOs under a general permit.
There is no provision in the existing regulations that explicitly
addresses incorporation of site-specific requirements into a general
permit when a CAFO seeks coverage or any additional public process for
such incorporation.
Today, in proposed 40 CFR 122.28(d), EPA proposes to establish new
procedures applicable to the general permitting process that would
allow the incorporation of the site-specific NMPs into CAFO general
permits and provide an opportunity for public review of a CAFO's NOI
(including the entire NMP) before the CAFO receives coverage under a
general permit. The proposed procedures would also allow the public to
review and comment on those terms of the nutrient management plan to be
incorporated into the permit, and to request a public hearing before a
CAFO receives coverage under a general permit. The discussion that
follows describes the process for public participation that EPA is
proposing. Further discussion of incorporation of the terms of the NMP
into the general permit is provided below in section III.B.3.d of this
preamble.
The proposed Sec. 122.28(d) would provide specific procedures for
public participation. The proposed rule would require that, for each
facility submitting a completed NOI, the permitting authority must
notify the public of the following: (1) That it has received a complete
NOI; (2) that the permitting authority is proposing to allow coverage
under the general permit; and (3) that the nutrient management plan is
available for public review, along with the terms of the nutrient
management plan proposed to be incorporated into the permit by the
permitting authority.
Today's proposed rule would allow the permitting authority
discretion as to how best to provide such public notification in the
general permit context. For example, public notification could be
provided on the permitting authority's web page or through other
electronic means. Another alternative would be to use the notice or
fact sheet for the general permit to establish a procedure allowing any
person to request notice by mail or electronically of the receipt of an
NOI, the permitting authority's proposed action, and the terms of the
nutrient management plan proposed to be incorporated into the permit.
EPA believes that these are appropriate ways to balance the competing
concerns of providing adequate notification to the public, providing
flexibility to the permitting authority, and ensuring the practicality
of general permits. The
[[Page 37753]]
permitting authority should describe the process to be used to give the
public notice of and comment opportunities on site-specific NMPs in the
draft and final general permit to ensure meaningful public
participation. EPA solicits comment on the methodology for providing
public notice.
Under today's proposal, the Director would also have discretion to
establish an appropriate period of time for public review of the NOI
and proposed permit conditions incorporating the terms of the NMP into
the permit. For example, the Director might establish a period of 30
days, depending upon a variety of factors. Factors to consider might
include the number of NOIs being publicly noticed at any one time, the
complexity of the material made available for public review, expected
level of public interest based on prior notices of CAFOs seeking
coverage, the relative availability of NOIs to the public (e.g., on the
internet), the opportunity for the public to extend the comment period
for one or more facilities, and whether individuals can request and
receive individual notification of CAFOs seeking coverage in a timely
fashion. Because this proposal would not mandate a 30-day public notice
period as currently required in 40 CFR 124.10, EPA would require that
the Director establish a time frame for public review by regulation or
propose the time frame for public notice in the draft general permit
and include it as a provision in the final permit. This would allow the
public and other interested parties an opportunity to comment on the
sufficiency of the time allotted for public notice. EPA solicits
comment on this approach, as well as on fixed minimum time frames for
public review, such as 7 days, 15 days, 21 days, and 30 days.
The Director would also have to provide an opportunity for the
public to request a hearing. EPA further proposes that the procedures
for requesting and holding a hearing on the terms of the NMP to be
incorporated into the general permit would be the same as those for
draft individual permits, which are provided in Sec. Sec. 124.11
through 124.13. When granting permit coverage, the permitting authority
would be required to respond to all significant public comments.
EPA believes that the proposed processes will provide adequate
notice to affected States. CWA section 402(b)(3) provides that the
Administrator, in approving State programs, shall make sure adequate
authority exists to ensure notice to ``any other State the waters of
which may be affected'' and Section 402(b)(5) provides that the
Administrator must insure that any State ``whose waters may be affected
by the issuance of a permit may submit written recommendations to the
permitting State'' and that if those recommendations are rejected that
the permitting State notify the affected State in writing of the
reasons for the rejection. Although today's proposal does not include
provisions specifically intended to address these requirements, EPA
believes that the public notice provisions are sufficient to notify
affected States. Additionally, the permitting authority's response to
all significant comments would include responses to comments from
affected States. EPA solicits comment from States and other interested
parties as to whether this approach is adequate or whether there are
specific requirements for review by affected States that should be
added to this proposal.
The proposed rule seeks to balance several competing concerns in
crafting the public participation procedures for general permitting of
CAFOs. First, EPA believes that the proposed rule would maintain the
utility of a general permit program as a resource-efficient method by
which to authorize multiple dischargers under an NPDES permit while
meeting the court's directive to ``provide for adequate public
participation'' in the development of site-specific effluent
limitations. Waterkeeper Alliance et al. v. EPA, 399 F.3d at 524.
Second, EPA believes the proposed rule would provide sufficient
flexibility for State permitting authorities to adopt their own
procedures while ensuring they meet the public participation
requirements of the Clean Water Act. EPA is attempting to implement the
Second Circuit decision in a way that would not have the effect of
eliminating the use of general permits for CAFOs. Because of the large
number of CAFOs that may seek permit coverage, the Agency considers it
appropriate to develop procedures that would allow and encourage
permitting authorities to continue the use of NPDES general permits as
a means for applying Clean Water Act limitations and standards to CAFOs
on a timely basis. Of course, the Director may always require a
facility to apply for an individual permit instead of allowing coverage
under a general permit (even after coverage under a general permit has
been granted) under already existing regulations.
EPA seeks comment on the approach taken in today's proposal
concerning public participation in the general permitting process.
Specifically, the Agency is interested in comment as to whether the
procedures strike an appropriate balance between the above mentioned
competing concerns.
(d) Incorporation of Nutrient Management Plan Terms in NPDES Permits
EPA is proposing to modify the language of 40 CFR 122.42(e)(1) to
require that any individual or general permit issued to a CAFO contain
the terms of the NMP. In the 2003 CAFO rule, the Agency finalized
regulations that required each CAFO permit to include requirements to
develop and implement a nutrient management plan that met the
conditions specified in 40 CFR 122.42(e)(1)(i)-(ix) and, for Large
CAFOs, that also fulfilled the requirements of 40 CFR 412.4(c). The
Second Circuit decision did not affect these requirements and EPA is
not revisiting its decision with respect to the contents of the
nutrient management plan. The NMP must continue to include the elements
in 40 CFR 122.42(e)(1)(i) through (x) and the elements required by the
effluent limitation guideline at 40 CFR 412.4(c), where applicable.
However, the proposal would ensure that the terms of the NMP become
terms and conditions of the permit, as required by the Second Circuit.
The Waterkeeper decision requires the permitting authority to
include the terms of a CAFO's nutrient management plan in the NPDES
permit issued to the CAFO. The court's opinion appeared to distinguish
between the ``nutrient management plan,'' which must be submitted by
the CAFO to the permitting authority for review (as discussed above),
and the ``terms'' of the nutrient management plan, which must be
incorporated into the permit following the public review process
described above. In light of the court's opinion, EPA is proposing to
require the permitting authority to incorporate the terms of the NMP
into the permit as enforceable terms and conditions of the permit. At a
minimum, the terms of the NMP must meet the requirements specified in
40 CFR 122.42(e)(1)(i)-(ix) and 412.4(c) (for Large CAFOs, as
applicable). Thus, the terms of the NMP would need to ensure, for
example, adequate storage of manure, litter, and process wastewater,
proper management of mortalities, and diversion of clean water. The
terms of the NMP would identify site-specific conservation practices to
be implemented by the CAFO and establish site-specific requirements for
proper land application of manure, litter, and process wastewater,
including application rates.
[[Page 37754]]
EPA expects that a submitted NMP, as a whole, will include data,
calculations, and other information that provide a basis for the terms
of the NMP and any other planning decisions encompassed in an NMP. The
data, calculations, and additional information are generally analogous
to both the information contained in a permit application and the
assumptions, calculations, and other determinations typically provided
as part of the fact sheet that is prepared for every draft NPDES
permit. On the other hand, the terms of the NMP are the sort of
requirements normally found as terms and conditions in a permit. In
other words, whereas a fact sheet (or, in this case, the supplemental
information provided in the NMP) contains the information that forms
the basis of the requirements included in a permit, the permit itself
contains the actual requirements applicable to the permitted facility.
A complete NMP contains both the requirements applicable to the
facility (``the terms of the NMP'') and the background information
(assumptions, data, calculations, etc.) which provide the basis for
those requirements.
This relationship is well illustrated when considering rates of
application for land applying manure, which, for Large CAFOs, must be
developed consistent with technical standards for nutrient management
established by the Director in accordance with 40 CFR 123.36. These
technical standards typically require application rates to be
calculated using the Phosphorous Index or its equivalent established by
the State. The calculations in turn are derived from data from fields
where land application is to occur and predictions for nutrient
utilization based upon crops to be planted in those fields. In
preparing an NMP, a CAFO would include both the data necessary to
determine the application rates in accordance with the applicable
technical standards and the calculations it used to determine those
rates.
EPA believes that it is appropriate to allow the permitting
authority discretion as to how to incorporate the terms of an NMP that
meets the regulatory requirements of 40 CFR 122.42(e) and 412.4 into
the permit. For example, the permitting authority could simply attach
the whole NMP to the permit and require implementation of the terms of
the NMP as a condition of the permit. Alternatively, the permitting
authority could identify and extract the terms of the NMP from the
larger document and incorporate only the extracted terms into the
permit. Another possibility is that the software used by some nutrient
management planners to develop NMPs could be modified to generate a
separate form that would clearly identify the terms of the NMP when
generating the whole NMP report. As mentioned above, the Agency is
considering the use of a model or template for identification of the
terms of the NMP. The Agency solicits comment on these various
approaches to identify the terms of the NMP that would be included in
the permit.
EPA also seeks comments on a modified approach as an alternative to
the process described above for incorporating nutrient management terms
and conditions into general permits. It is premised on EPA's
recognition that some NMP requirements may be broadly applicable to all
of the CAFOs covered by a general permit. Under this approach there
would be three possible categories of permit conditions. The first
category would include permit conditions that can be established in the
general permit itself so as to apply to all CAFOs seeking coverage
under that permit. The second category would allow for flexibility in
some broadly applicable requirements. Conditions falling into this
category would lend themselves to a default requirement set by the
permitting authority, with the option for facilities to substitute
alternative measures in their NMPs that are equivalent or more
effective in achieving the same objective. In such instances, of
course, it would be necessary for the permitting authority to review
the NMP submitted by each CAFO that chooses such alternative measures
to determine whether the selected measures satisfy the relevant
regulatory requirement(s). The third category would include those
requirements for which a broadly applicable condition in the general
permit would not be possible because they are of necessity facility-
specific. A prime example of this third category is the requirement for
field-specific rates of application.
Under this alternative approach, for the first category of
conditions, the permitting authority would have the discretion to
incorporate some NMP requirements into the terms and conditions of the
general permit itself so they are applicable to all CAFOs covered by
the permit. Examples of requirements that might lend themselves to the
first category include, 40 CFR 122.42(e)(1)(iii) (diversion of clean
water), (iv) (prevent contact of confined animals with waters of the
United States), and (v) (proper disposal of chemicals), and 40 CFR
412.37(a)(4) (mortality management)).
During the comment period on the draft general permit, the public
would have the opportunity to comment and request a hearing on the
broadly applicable nutrient management terms and conditions proposed by
the permitting authority. If after notice and comment the permitting
authority included these conditions in the final permit, the permitting
authority would be free to focus greater attention on those terms of a
facility's nutrient management plan that were actually site-specific
(i.e., those conditions in the second and third categories, described
below, specified in the facility's NMP). Of course, the public would
still have the opportunity to review each CAFO's nutrient management
plan (as well as the terms of the NMP that would be included in the
general permit) to ensure that the plan complied with all conditions of
the general permit. EPA seeks comment on the feasibility of utilizing
this approach under a general permit.
For the second category of permit conditions in this modified
approach, the permitting authority might establish broadly-applicable
permit terms that could be implemented through specific NMP measures,
while allowing for flexibility as previously noted. For example, the
permitting authority could set a minimum requirement for adequate
storage of manure (40 CFR 122.42(e)(1)(i)) by specifying the number of
days of storage capacity for each facility type. In such an instance, a
facility wishing to take an alternative approach would need to
describe, for example, the alternative measures it would take that
would justify a shorter period of storage capacity. Other broadly
applicable requirements that so many qualifiers could lend themselves
to site-specific alternatives might include permit conditions requiring
conservation practices to reduce soil erosion from land application
areas to the tolerable rate (``T'') as a standard to ensure adequate
conservation practices, as required by 40 CFR 122.42(e)(1)(vi), or
requiring CAFOs to address the timing of land application (40 CFR
412.4(c)(2)(i)) in part by prohibiting surface application of manure on
frozen or snow-covered land that is upslope from waters of the United
States. EPA solicits comment on such an approach, the sort of measures
that might lend themselves to such an approach, and the sort of
alternative measures that might qualify as site-specific substitutions.
Under this alternative methodology for establishing some terms of
the NMP, the permitting authority would still need to identify the
third category of facility-specific terms of the nutrient
[[Page 37755]]
management plan to be incorporated into the permit. For example, the
permitting authority would need to identify the manure, litter, and
process wastewater application rates in each CAFO's nutrient management
plan on a site-specific basis and incorporate those rates as terms and
conditions of the permit before the permitting authority could
authorize coverage of the CAFO under the permit. The public would have
the opportunity to review and comment and request a hearing on these
site-specific terms and conditions, as well as on the NMP's adequacy to
satisfy any generally applicable permit requirements, as provided by
the procedures in today's proposal.
EPA believes the alternative described above has the potential to
speed the pace at which unpermitted CAFOs receive authorization under
general permits while being consistent with the Second Circuit
decision. In seeking comments, EPA specifically asks States to comment
on the possible workload burden associated with the procedures proposed
today as well as the alternative described immediately above.
For either approach discussed above, EPA is proposing that the
permitting authority would be required to respond to all significant
comments received during the comment period. As necessary, the Director
would require a CAFO owner or operator to make revisions to the CAFO's
NMP in order to address issues raised during the review process. Once
the Director determines that the process for the development of a
CAFO's NMP has been completed, the Director must make a final decision
whether to grant permit coverage to the CAFO under the general permit.
If coverage is granted, the Director must incorporate the relevant
terms of the NMP into the general permit and inform the CAFO owner or
operator of the terms of the NMP that have been incorporated as permit
conditions.
Under today's proposal, incorporation of the terms of a particular
CAFO's NMP into a general permit would not be a permit modification
subject to 40 CFR 122.62. Rather, EPA views this as an extension of the
CAFO general permitting process itself. As discussed above, EPA intends
the process proposed in 40 CFR 122.28(d)(1) to generally parallel the
procedures in 40 CFR Part 124. A person who objects to the
incorporation of the terms of an individual CAFO's NMP into a general
permit could appeal the permit decision to the Environmental Appeals
Board pursuant to 40 CFR 124.19, when EPA is the permitting authority.
EPA seeks comment on today's proposed process for incorporation of
the terms of a CAFO's NMP into NPDES permits. EPA specifically seeks
comment from States on the workload implications of requiring the
permitting authority to respond to all significant comments on each
individual CAFO's NOI (including the NMP) and the terms of the NMP to
be incorporated into the permit.
(e) Changes to Nutrient Management Plans
When a CAFO obtains coverage under an NPDES permit, as proposed in
today's notice, it would be the CAFO's responsibility to implement the
terms and conditions of the nutrient management plan as incorporated
into the permit, as of the date of permit coverage. Because
agricultural operations sometimes modify their nutrient management and
farming practices as a normal part of their operations, and because
such alterations may require changes to NMPs after a permit is issued,
EPA is proposing a permit revision process to specifically address
these circumstances.
The Agency does not, however, believe that such a process is
necessary for all operating changes at a CAFO. Most routine changes at
a facility should not require changes to the NMP itself because of the
way NMPs are developed. Nutrient management plans are dynamic documents
and are developed to accommodate routine variations, for example
changes resulting from anticipated crop rotation or climatic
variability inherent in agricultural operations, as well as changes in
numbers of animals and volume of manure, litter or process wastewater
resulting from normal fluctuations or a facility's planned expansion.
Nevertheless, as discussed in the preamble to the 2003 CAFO rule,
changes to a nutrient management plan will be necessary under some
circumstances; for example, when there is a substantial increase in the
number of animals, or a major change in the CAFO's cropping program not
anticipated in the original NMP.
EPA encourages CAFO operators to develop, at the outset, NMPs that
thoughtfully anticipate, to the extent feasible, all contingencies and
changes in operations that may occur over the term of the permit. The
NMP should provide information on possible crop rotations or other
alterations in cropping patterns with accompanying field-specific
calculations for manure, litter, and process wastewater application
rates based on realistic crop yield goals, soil characteristics,
weather, and other site-specific field conditions. In this way, the
public will have the opportunity to review all anticipated operational
scenarios and associated field-specific manure, litter, and process
wastewater application rates, including the calculation on which these
rates were based. In this manner, NMPs and associated permit conditions
can address most year-to-year changes in nutrient management practices
during the term of the permit and greatly reduce the need for NMP and
associated permit modifications as a range of potential operational
scenarios will have already been accounted for.
For example, the NMP could specify: (1) The maximum amount of
manure that the CAFO may apply to land application areas under its
control, based on its total available land application area and the
capacity of its waste storage and treatment facilities, as well as
manure and soil test results; (2) the maximum amount of manure that may
be transferred to other persons (see Sec. 122.42(e)(3)) by the CAFO,
given limitations on available markets, the cost of transporting
wastes, etc.; (3) a complete inventory of all of the fields under the
CAFO's control that might receive manure, with the associated acreage,
soil types, soil tests and testing protocols, setbacks, and other soil
conservation measures; (4) a list of all of the crops the CAFO may wish
to grow on each of those fields, with a matrix of the associated
realistic yield expectations and land application rates consistent with
the various field conditions; and/or (5) plans to address contingencies
(e.g., a spill or especially heavy rainfall event), including
consultation with the permitting authority as appropriate.
The NMP should indicate calculations necessary to determine rates
of application for the array of crops most likely to be planted in
accordance with the cropping system utilized by the CAFO operator,
including likely fallback scenarios. For Large CAFOs, the land
application rates must comply with the ELG requirements of 40 CFR
412.4. The NMP may also identify other crops that could be planted and
other fields that might be utilized for land application, thus allowing
the CAFO to utilize a mix of fields and crops different from the most
likely or preferred combinations. Nevertheless, the NMP should
reasonably forecast the practices most likely to be utilized by the
CAFO. EPA solicits comment on the degree of flexibility that should be
allowed in NMPs. Greater flexibility would minimize the need for
subsequent permit revisions, but will also increase the up-front work
load, both for the permittee and for the
[[Page 37756]]
permitting authority, and provide the permitting authority and the
public with less certainty as to which practices the CAFO will actually
utilize.
Even when a CAFO owner or operator develops an NMP that encompasses
a significant degree of flexibility, it nevertheless may be necessary
to revise the NMP during a CAFO's term of permit coverage. EPA believes
that, due to the issues associated with agricultural operations and the
variables associated with nutrient management planning, including
seasonal variations, weather, soil and slope variation, and
availability of feed, seed, and other resources, it is necessary to
provide flexibility in the best management practice requirements for
CAFOs beyond that typically available for other permit conditions.
Consistent with this objective, EPA is proposing to establish specific
protocols to allow changes to an NMP after permit coverage has been
granted.
EPA is proposing formal public notice and comment procedures that
the permitting authority would be required to follow for permit
modification when a CAFO is seeking to make substantial changes to its
NMP. EPA is proposing that substantial changes would include, but are
not limited to: (1) Changes that could result in an increase in runoff
of manure, litter, or process wastewater from the facility; (2) an
increase in the rate of nutrients from manure, litter, or process
wastewater applied to the land application area that is significant in
relation to technical standards established by the Director; (3) a
significant change in the nutrient balance at the CAFO caused by: (i)
An increase in the ratio of animals, manure, litter, or process
wastewater to the available land application acreage or storage
capacity; (ii) changes in the CAFO's procedures for handling, storage,
treatment, or land application of manure, litter, or process
wastewater; (iii) a significant increase in the number of animals; or
(iv) a significant reduction of manure, litter, or process wastewater
hauled off site when there is no equivalent decrease in the amount of
manure, litter, or process wastewater produced; and (4) the addition of
land application areas not previously included in the nutrient
management plan. Specific examples of such changes would include
changes to the method of land application from injection to surface
application, changes in timing from spring to late fall or winter
application, and installation of new drainage systems that would
increase runoff from land application fields. The proposed new
paragraph 40 CFR 122.42(e)(5)(iv) identifies what would constitute
substantial changes to the facility's NMP that would trigger this
process for permit revisions.
For these types of changes, EPA is proposing to create new
procedures in 40 CFR 122.42(e)(5) to allow CAFOs to change their
nutrient management plans after the Director has incorporated the terms
of the NMP into the permit. These procedures, which would be available
to CAFOs operating under both individual and general permits, would be
nearly identical to those for CAFOs seeking coverage in the first
place. The Agency believes that such a process satisfies the need for
the permitting authority and the public to have ample opportunity to
review and comment on changes to a facility's NMP, while allowing the
CAFO the flexibility it needs.
In addition, there may be changes at a facility that were not
contemplated in the currently applicable NMP that do not require
substantial changes to the terms of the NMP in the permit. In these
instances, while a revised NMP would need to be submitted to the
Director, the Director should not need to seek public comment on the
revised NMP. Such changes might include, for example, changes in
cropping patterns not anticipated in the original NMP where they are
managed consistent with the original plan and properly documented. In
such instances, today's proposal would require the CAFO owner or
operator to provide the revised NMP, along with appropriate
documentation to reflect changed conditions, to the permitting
authority. The better the documentation of the terms in the NMP,
including calculations, the easier it will be for a permitted facility
to demonstrate that changes in its nutrient management practices are
non-substantial modifications of its NMP.
Today's proposal (see proposed 40 CFR 122.42(e)(5)) would require
that, whenever a CAFO makes any change to its NMP, the owner or
operator would provide the Director with the revised NMP and identify
the changes from the previous version submitted to the permitting
authority. The Director would then review the changes to ensure that
the NMP still meets the requirements of 40 CFR 122.42(e)(1)(i) through
(x) and, for Large CAFOs, 40 CFR 412.4(c) and technical standards
developed by the Director. If the changes are not substantial, the
Director would simply modify the permit as necessary and notify the
public of such modification (and not seek public comment). If the
changes are substantial, the nutrient management plan would be revised
using procedures similar to those proposed for the initial
incorporation of an NMP into a general permit. Thus, today's proposed
rule would require the Director to notify the public of substantial
changes, and provide an opportunity for public notice and comment.
Moreover, the appeals process would be the same as that for
incorporation of NMPs into a general permit. EPA solicits comment on
the approach proposed to deal with NMP revisions, as well as on the
conditions concerning what constitutes a substantial change to an NMP.
Because the process in 40 CFR 122.42(e)(5) would allow for public
review of changes to the terms of nutrient management plans and the
underlying data and calculations, EPA proposes that the incorporation
of changes to the permit through this process would be treated as a
minor permit modification, under Sec. 122.63(h), and not require
additional review. EPA considered requiring any change to the NMP to be
considered a permit modification requiring procedures under Sec.
122.62, but rejected this option as it would significantly burden
permitting authorities and CAFO operators' ability to make necessary
and timely minor changes to NMPs as discussed above.
For substantial changes, the Agency also proposes to expressly
allow the facility, at the Director's discretion, to proceed in
implementing the change for up to 180 days before completion of public
review and permitting authority approval, so long as the change is not
likely to result in increased runoff of manure, litter or process
wastewater from the facility. Given the importance of timing in
farming, EPA recognizes that CAFOs may be unable to delay the
implementation of a substantial change to their nutrient management
plan to allow for public review and still implement the change in a
timely fashion.
EPA believes that it would be reasonable to allow the Director to
temporarily allow substantial changes so long as certain conditions are
met. First, the approval would be temporary, allowing the CAFO to
implement the changes for only 180 days. Second, the facility would
need to provide to the Director documentation to demonstrate that the
change would not result in increased runoff of manure, litter, or
process wastewater from the facility. Third, the Director would have to
review the documentation and conclude that the changes would not result
in increased runoff of manure, litter, or process wastewater from the
facility. Finally, the Director would have to include such expedited
decisions with the permit in the public record and notify the public of
its decision. Moreover, by the end of the 180 day
[[Page 37757]]
period, these changes would need to undergo the public review
procedures required for all substantial changes and be incorporated
into the CAFO's permit by the Director. Changes EPA intends to
encompass within this provision include the addition of new fields for
land application where the Director determines that such additional or
replacement fields have equivalent phosphorous ratings (based on the
Phosphorous Index, for example) for nutrient uptake as the fields they
are supplementing or replacing, whichever may be the case. EPA is
interested in commenters' views concerning this proposed provision. EPA
specifically solicits comment on whether a change that would result in
increased rates of land application of manure, litter, or process
wastewater in addition to those changes likely to result in increased
runoff, should also be precluded from expedited implementation during
the 180 day period.
EPA is also interested in taking comment on an approach that might
allow greater flexibility for CAFO operators in making cropping
decisions while assuring permitting authorities and the public that
they are complying substantively with the terms of the NMP as
incorporated into the permit, even if the CAFO modifies its practices
somewhat from those articulated in the NMP and the permit. Under this
approach, the Agency would modify the annual report requirements for
permitted CAFOs in 40 CFR 122.42(e)(4) to require all CAFOs to submit
information with the annual report indicating how the CAFO achieved
substantive compliance with the terms of the NMP as set forth in the
permit. If the CAFO implemented any cropping options not included in
the calculations provided in the NMP, the CAFO would document the
procedures and nutrient management practices utilized, including crops
grown and fields planted, together with nutrient management
calculations that governed its land application practices for the prior
calendar year, and explain how the modified cropping options as
implemented continued to comply with the substantive terms of the NMP
incorporated into the permit. Under this option, EPA would include
guidance in either rule or preamble text on which types of deviations
from the NMP would be allowed, and what would be required to
demonstrate in the annual report that these deviations substantively
complied with the permit terms. The Agency solicits comment on whether
such an approach would be practical and the extent to which it could
allow greater flexibility for CAFOs to meet the NMP requirements
incorporated into their permits, while still ensuring appropriate
permitting authority and public oversight of permit compliance.
(f) Required Dates
In a separate rulemaking, EPA revised the dates in the 2003 CAFO
rule by which CAFOs were required to develop and implement their NMPs.
(71 FR 6978.) The 2003 CAFO rule required newly defined CAFOs to seek
coverage under an NPDES permit by February 13, 2006, but required the
development and implementation of a nutrient management plan by
December 31, 2006. This would have conflicted with today's proposal
that CAFOs submit their NMPs with their permit applications or notices
of intent, as required by the Second Circuit Court's decision. The new
rule requires CAFO owners and operators to submit their NMPs at the
time of the permit application by extending the deadline for both to
July 31, 2007. EPA extended these deadlines in a separate rulemaking so
as to provide the Agency sufficient time to develop the regulatory
revisions proposed in this rulemaking that more broadly respond to the
Waterkeeper decision.
C. Remand Concerning Water Quality Based Effluent Limitations
Water quality-based effluent limitations (WQBELs) are one of two
fundamental types of limitations imposed in NPDES permits. The other is
technology-based limitations. Technology-based limitations are required
in all NPDES permits, unless the permit writer imposes more stringent
WQBELs in the permit where necessary to ensure that water quality
standards are attained in the receiving waters. (See CWA Section
301(b)(1)(c), 33 U.S.C. 1311(b)(1)(c), and 40 CFR 122.44(d).) Where
WQBELs are necessary, the permit writer establishes them without
consideration of the availability or effectiveness of treatment
technologies or the costs that dischargers would incur to meet those
water quality-based limits. (See Arkansas v. Oklahoma, 112 S.Ct. 1046,
1054 (1992); Westvaco v. EPA, 899 F.2d 1383 (4th Cir. 1990).)
The environmental petitioners claimed that the 2003 CAFO rule
violated both the Clean Water Act and the Administrative Procedure Act
because it failed to promulgate WQBELs for CAFO discharges and also
barred States from doing so. The Second Circuit agreed in part with
this claim, as described in Section II.D.3 above, and remanded this
issue to EPA for further clarification.
The terms of the 2003 CAFO rule itself do not contain any
requirements concerning WQBELs, but EPA addressed the subject of WQBELs
in the preamble. In fact, there was only one WQBELs issue that EPA
addressed or intended to address in the preamble--whether WQBELs can be
imposed for land application discharges of agricultural stormwater--and
on that issue, the court expressly agreed with EPA's discussion. What
appears to have troubled the court were certain statements in the
preamble that the court thought might also address how WQBELs apply to
other types of discharges. EPA therefore offers the following
clarification.
1. The Application of WQBELs to CAFO Discharges Under the 2003 CAFO
Rule
How WQBELs apply to a CAFO's land application runoff is different
from how they apply to discharges from a CAFO's production areas, as
explained below.
(a) Land Application Discharges
In the 2003 rule, to determine how WQBELs apply to land application
discharges at CAFOs, EPA first had to consider the statutory exclusion
for agricultural stormwater. In the Clean Water Act, the definition of
``point source'' specifically includes CAFOs but excludes agricultural
stormwater discharges. (See CWA Section 502(14).) In the 2003 CAFO
rule, EPA interpreted how this exclusion applies to discharges from
land application at CAFOs. EPA found that where a CAFO applies manure,
litter, or process wastewater to its fields, the resulting discharges
from those fields are regulated by the Clean Water Act as point source
discharges except where they qualify as agricultural stormwater. EPA
determined that land application discharges qualify as agricultural
stormwater only where manure, litter, or process wastewater has been
applied in accordance with site-specific nutrient management practices
that ensure appropriate agricultural utilization of the nutrients in
the manure, litter or process wastewater, as specified in Sec. 122.42
(e)(1)(vi)-(ix). (See 40 CFR 122.23(e).) Where a CAFO has not followed
such practices, EPA concluded that any resulting precipitation-related
discharge was not intended by Congress to be excluded from the Act as
agricultural stormwater and is therefore subject to NPDES requirements.
The land application requirements of the 2003 CAFO rule reflected
this interpretation by EPA of the agricultural stormwater exclusion in
the Act. EPA
[[Page 37758]]
found that where a CAFO follows these practices, any and all
precipitation-related discharges of manure, litter, or process
wastewater that occur from land application fields would be covered by
the agricultural stormwater exclusion and would thus be considered
nonpoint source runoff. (68 FR 7198.) In other words, a CAFO that
follows the requirements in the 2003 rule eliminates all precipitation-
related point source discharges from its land application fields. While
physically there may still be some runoff from the fields related to
precipitation, the CAFO has no discharge of regulated precipitation-
related runoff, since any remaining precipitation runoff is
agricultural stormwater.
Because the CAFO effluent guidelines--the technology-based
regulations--already prohibit all precipitation-related land
application discharges that are subject to regulation, EPA noted in the
2003 rule that it is not possible for a CAFO permit writer to add any
other permit limitations on these discharges that are more stringent
than the CAFO effluent guidelines, including any water quality-based
limitations. (See 68 FR at 7198.) Only discharges of agricultural
stormwater, which are nonpoint source discharges, remain. The Second
Circuit agreed that the rule ``does not present a problem to the extent
that [it] fails to promulgate--and bars States from promulgating--
WQBELs for any `agricultural stormwater discharge' * * * Agricultural
storm water discharges are, after all, statutorily exempt from any
effluent limitations, including WQBELs, because they are non-point
source discharges.'' Waterkeeper, 399 F.3d at 522.
It should be noted that the key point of this discussion--that
water quality-based effluent limits are not available to limit land
application discharges that are agricultural stormwater--involves, in
the first instance, only precipitation-related land application
discharges, since only precipitation-related discharges can be
agricultural stormwater. Water quality-based effluent limits are
available to the permit writer to limit any non-precipitation related
(i.e., dry-weather) discharges that occur at land application areas to
levels that are more stringent than the technology-based limitations
(effluent guidelines), and EPA never intended to indicate otherwise. As
EPA stated in the 2003 rule, ``any dry weather discharge of manure or
process wastewater resulting from its application to land area under
the control of a CAFO would not be considered an agricultural
stormwater discharge and would thus be subject to Clean Water Act
requirements.'' 68 FR 7198. To be sure, in most instances, a CAFO's
requirement to meet technology-based permit limits that require manure
to be applied at appropriate agronomic rates should itself eliminate
all or most dry weather discharges. Nevertheless, if such discharges
remain, the need for additional water quality-based effluent limits to
control them will be determined by the permit writer based on the
circumstances of each particular case.
(b) Production Area Discharges
In contrast to precipitation-related land application discharges,
under the 2003 rule, WQBELs can be applied by permit writers in
appropriate cases to further limit discharges from CAFO production
areas (except for new source CAFOs in the swine and poultry sectors, as
discussed below). WQBELs can be imposed on these production area
discharges, where appropriate, because the effluent guidelines do not,
by themselves, prohibit all ``regulatable'' discharges from the
production area. The effluent guidelines allow occasional overflow
discharges from properly designed, operated, and maintained lagoons and
storage ponds. It is possible that WQBELs might be necessary in a
particular permit to further limit these discharges beyond the levels
that are authorized under the CAFO effluent guidelines. It should also
be noted that the exclusion for agricultural stormwater does not apply
to discharges from the CAFO production area, as EPA stated in the 2003
rule. (See 40 CFR 122.23(e) and 68 FR 7198). Thus, the agricultural
stormwater exclusion does not serve to limit how WQBELs may be imposed
to control production area discharges.
For new source CAFOs in the swine and poultry sectors, however, no
WQBELs can be imposed in permits for the production areas. This is
because the effluent guidelines already prohibit all production area
discharges from these new sources. (See 40 CFR 412.46(a).)
2. Discussion
The Second Circuit expressed two concerns with EPA's discussion of
how WQBELs apply at CAFOs. First, the court found that it was ``unclear
* * * why the CAFO Rule exempts discharges other than agricultural
storm water discharges from WQBELs.'' (See 399 F.3d at 522.) EPA had
indicated its intention, the court found, ``not to promulgate any
WQBELs whatsoever.'' As an initial matter, WQBELs for CAFOs are
derived, where appropriate, on a case-by-case basis for individual
permits, not promulgated in EPA regulations. EPA never intended to
``promulgate'' any WQBELs in the 2003 rule, but simply to discuss how
WQBELs might apply once a CAFO applied for a permit.
Specifically, the court was concerned by EPA's preamble statement
that ``EPA does not expect that water quality-based effluent
limitations will be established for CAFO discharges resulting from the
land application of manure, litter, or process wastewater.'' 399 F.3d
at 522, citing 68 FR 7207. The court may have been concerned that EPA
was exempting from the application of WQBELs not only agricultural
stormwater discharges from CAFO land application areas (which the court
agreed are not subject to WQBELs) but also any other discharges from
land application areas or even production areas. (See 399 F.3d at 522
(``EPA has * * * only justified its determination not to impose WQBELs
* * * only insofar as agricultural stormwater discharges are concerned
* * * The EPA has not attempted, in any way, to explain its failure to
promulgate WQBELs for CAFO discharges other than agricultural
stormwater discharges * * *'').) This was not EPA's intent. EPA
intended only to affirm that where the precipitation-related discharge
from land application areas has been limited to only agricultural
stormwater, WQBELs are not available as further limitations on those
discharges.
Based on its understanding, the court directed EPA ``to explain
whether or not, and why, WQBELs are needed to assure that CAFO
discharges will not `interfere with the attainment or maintenance of
that water quality in a specific portion of the navigable waters which
shall assure protection of public health, public water supplies,
agricultural and industrial uses, and the protection and propagation of
a balanced population of shellfish, fish and wildlife, and allow
recreational activities in and on the water,' '' citing 33 U.S.C.
1312(a). 399 F.3d at 523. In response, EPA clarifies that WQBELs are
not available for permits with respect to precipitation-related land
application discharges for CAFOs. However, water quality-based effluent
limits can be included in permits as necessary with respect to non-
precipitation-related land application discharges and with respect to
production area discharges, as discussed above. For example, with
respect to production area discharges, under the effluent guidelines, a
CAFO may be subject to a permit requirement that allows production area
discharges
[[Page 37759]]
only if the CAFO designs and operates its lagoon or pond to contain all
process wastewater plus any storm water runoff resulting from the 25-
year, 24-hour storm. But water quality considerations may lead the
permit writer to impose a more stringent permit requirement such as
allowing discharges only if the lagoon or pond is designed and operated
to contain water from an even bigger storm.
The court's second concern was that the 2003 rule preamble was
``ambiguous about whether States may promulgate WQBELs for discharges
other than agricultural stormwater discharges.'' 399 F.3d at 523. The
court directed EPA to explain this issue more clearly on remand. In
response, the reasoning described above applies to State-issued as well
as EPA-issued NPDES permits. Permit writers in NPDES-authorized States
can include WQBELs as necessary with respect to non-precipitation-
related land application discharges and with respect to production area
discharges.
There are two additional considerations, however, with respect to
State-issued permits. First, the effluent guidelines require CAFOs to
limit their land application of wastes to levels that comport with
State technical standards for manure management. In the 2003 rule
preamble, EPA encouraged States to address water quality protection
issues in setting those technical standards for appropriate land
application practices. (See 399 F.3d at 523, citing 68 FR 7198). Thus,
although the effluent guidelines are by their nature technology-based,
EPA encouraged the States to address water quality concerns in setting
their technical standards for manure management. But this does not
change the basic regulatory scheme under which, once those technology-
based standards are applied in a permit, the only remaining
precipitation-related runoff is agricultural stormwater, for which
water quality-based effluent limitations are not available.
Second, it is possible that a State can have additional
requirements under its own State regulatory authorities that would go
beyond the requirements of the federal NPDES program. Thus, where the
only runoff from a CAFO's land application area is agricultural
stormwater, that remaining runoff, though not subject to further NPDES
regulation, could be subject to additional State requirements that are
broader in scope, including additional requirements related to water
quality. 33 U.S.C. 1370 and 40 CFR 123.1 and 123.25. These
requirements, however, would not be federally enforceable.
D. New Source Performance Standards for Subpart D Facilities
1. Provisions in the 2003 CAFO Rule
(a) 100-Year, 24-Hour Rainfall Event Design Standards
The Clean Water Act requires EPA to promulgate New Source
Performance Standards (NSPS) for new, as opposed to already existing,
sources of pollution. (See 33 U.S.C. 1316.) The Act provides that these
standards must ``reflect the greatest degree of effluent reduction
which the Administrator determines to be achievable through application
of the best available demonstrated control technology, processes,
operating methods, or other alternatives, including, where practicable,
a standard permitting no discharge of pollutants.'' 33 U.S.C.
1316(a)(1). The Act further requires that EPA ``take into consideration
the cost of achieving such effluent reduction, and any non-water
quality, environmental impact and energy requirements.'' 33 U.S.C.
1316(b)(1)(B). EPA is given considerable discretion to weigh and
balance the various factors required by statute to set NSPS.
Riverkeeper, Inc. v. EPA, 358 F. 3d 174, 195 (2d Cir. 2004).
The 2003 CAFO rule effluent guidelines for new Subpart D (swine,
poultry, and veal) operations prohibit the discharge of any pollutants
from CAFO production areas. It is common for new poultry, veal, and
swine operations to confine the animals so that they are never exposed
to rainfall or storm water runoff. In addition, many new operations
employ manure handling systems that greatly reduce or eliminate the use
of water as a conveyance or handling mechanism for the manure, and
typically contain manure in covered or indoor facilities. (See 68 FR
7219 and Chapter 8 of the ``Technical Development Document for the
Final Revisions to the National Pollutant Discharge Elimination System
Regulation and the Effluent Guidelines for Concentrated Animal Feeding
Operations'' (EPA-821-R-03-001) or ``TDD'' for more information.) Based
on these technologies, EPA determined that a no discharge standard was
technologically feasible.
EPA recognized that CAFOs may use different technologies to meet
the no discharge standard and that these technologies may have slightly
different vulnerabilities to extreme weather events. Therefore, the
2003 CAFO rule would have allowed CAFOs to meet the no discharge
standard by using waste management and storage facilities designed,
constructed, operated, and maintained to contain all manure and process
wastewater including the runoff and precipitation from a 100-year, 24-
hour rainfall event.\3\ The 100-year, 24-hour rainfall event is a
statistical event defined as the amount of rainfall that has a one
percent chance of being exceeded in a 24-hour period in any given year.
Thus, a facility that was adequate to contain both the process
wastewater generated at the facility and the runoff and precipitation
from the 100-year event would not discharge in circumstances resulting
in runoff and precipitation less than that produced in the 100-year
event, when properly operated and maintained. EPA provided the 100-
year, 24-hour rainfall event criteria to provide clarity to the
regulated community about how to design, operate and maintain their
manure handling systems to achieve the no discharge standard.
---------------------------------------------------------------------------
\3\ All storage structures must be operated in accordance with
the additional measures specified in the regulations at 40 CFR
412.37(a) and (b).
---------------------------------------------------------------------------
(b) Superior Alternative Performance Standards
The 2003 CAFO rule also allows existing CAFOs in Subparts C and D,
and new beef, dairy, and heifer CAFOs to voluntarily participate in the
Voluntary Alternative Performance Standards program. The alternative
performance provisions allow CAFOs to request that the Director
establish alternate permit effluent limitations in place of the 25-
year, 24-hour storm standard that would otherwise apply. This provision
enables CAFOs to implement new technologies and management practices
that perform as well as or better than the baseline effluent guidelines
at reducing pollutant discharges to surface waters from the production
area. To demonstrate that an alternative control technology would
achieve equivalent or better pollutant reductions than the baseline
effluent guidelines, the CAFO must submit a technical analysis, which
first calculates the pollutant discharges based on the site-specific
modeled performance of a system designed to comply with the baseline
effluent guidelines and then demonstrates that the proposed alternate
limitations would result in equal or lower discharges. The minimum
specific components of the technical analysis were included in the ELGs
at 40 CFR 412.31(a)(2).
For new Large swine, poultry, and veal CAFOs (new sources under
Subpart D), the 2003 rule had a similar provision for alternative
permit limitations--the ``Voluntary Superior Environmental Performance
Standards'' provision. This NSPS provision empowered permitting
[[Page 37760]]
authorities to establish site-specific alternative performance
standards that allow production area discharges, so long as such
discharges were accompanied by reductions of pollutant discharges to
other media. (See 40 CFR 412.46(d).) Specifically, the quantity of
pollutants discharged from the production area had to be accompanied by
an equivalent or greater reduction in the quantity of pollutants
released to other media from the production area (e.g., air emissions
from housing and storage), the land application areas for all manure,
litter, and process wastewater at on-site and off-site locations, or
both. The Director was given the discretion to request supporting
information to supplement such a request.
2. Summary of the Second Circuit Court Decision Concerning Remanded
Issues
The Second Circuit Court of Appeals remanded several elements of
the 2003 CAFO rule related to new sources. Specifically, the court
directed EPA to clarify the statutory and evidentiary basis for
allowing subpart D CAFOs to comply with the NSPS requirements by either
the 100-year storm standard or the alternative performance standards.
With respect to the 100-year storm standard, the Court noted that while
certain studies showed that the production area BMPs adopted by the
2003 CAFO rule would have substantially prevented the production area
discharges documented in the record, the court explicitly stated that
substantially preventing discharges is not the same as prohibiting them
outright. With respect to the alternative performance standards, the
court held that EPA had not justified its decision to allow compliance
with the no discharge standard through an alternative standard
permitting production area discharges so long as the aggregate
pollution to all media is equivalent to or lower than that resulting
from the baseline standards. The court further held that EPA did not
provide adequate notice for either of these provisions under the Clean
Water Act's public participation requirements. (See 33 U.S.C. 1251(e)
(``Public participation in the development, revision, and enforcement
of any regulation, standard, effluent limitation, plan, or program
established by the Administrator or any State under this Act shall be
provided for, encouraged, and assisted by the Administrator and the
States'').)
3. This Proposal
(a) 100-Year Storm Containment Structure
EPA has reconsidered the NSPS in light of the Second Circuit
decision. As a result of its review, EPA is proposing to delete 40 CFR
412.46(a)(1), the provision allowing CAFOs to meet the no discharge
standard through the use of a 100-year, 24-hour rain event containment
structure. If EPA adopts this change, all discharge of manure, litter,
and process wastewater would be prohibited from the production area for
new source swine, poultry, and veal calf operations. The land
application requirements would remain unchanged. Regulatory language
implementing the proposed change may be found in today's proposed rule
text.
As part of this approach, EPA also proposes to modify Section
412.37(a)(2) by removing the requirement that all surface liquid
impoundments at new sources have a depth marker indicating the minimum
capacity to contain the runoff and direct precipitation from a 100-
year, 24-hour rain event. The removal of the 100-year storm containment
structure provision for new sources makes this provision irrelevant.
Although the Agency proposes to delete the 100-year, 24-hour depth
marker requirement, EPA recognizes that a marker indicating depth can
be an excellent means of displaying how much storage a CAFO has, and
whether it is time to pump down levels in the lagoon or pond. EPA
believes depth markers are a useful tool to help with the management of
any facility, and proposes to maintain, in 412.37(a), the depth marker
requirement in the rule, even though EPA removed the 100-year, 24 hour
rainfall specification. EPA solicits comment on this provision of the
ELGs.
Additionally, EPA is proposing an alternative that would authorize
the NPDES Program Director to establish no discharge best management
practice effluent limitations based upon a site-specific evaluation for
an individual CAFO. Compliance with such limitations would provide an
alternate approach for CAFOs to meet the zero discharge requirement.
Specifically, EPA is proposing to authorize permit writers, upon
request by a CAFO, to establish best management, zero discharge
effluent limitations on a case-by-case basis when a facility
demonstrates through a rigorous modeling analysis that it has designed
an open containment system that will comply with the no discharge
requirements. If a facility has complied with all of the specified
site-specific design, construction, operation, and maintenance
components of such a system demonstrated to meet the zero discharge
requirement, it would be deemed to be in compliance with the no
discharge requirement even in the event of an unanticipated discharge.
EPA continues to recognize that CAFOs may use different
technologies to meet the no discharge standard and that these
technologies may have different vulnerabilities to extreme weather
events. While some CAFOs may use closed containment systems to ensure
meeting the no discharge requirements, EPA seeks to encourage new
source CAFOs to consider implementation of anaerobic digesters, multi-
cell treatment lagoons, and nitrification and/or denitrification
technologies. While these innovative technologies should be able to
achieve zero discharge, and the operator must demonstrate to the permit
authority's satisfaction that the system will be designed, operated and
maintained to do so, there may be greater uncertainty in the
performance of these systems during exceptionally heavy rainfalls and
other rare weather conditions. To address such situations, EPA believes
it appropriate to allow a facility to use an upset/bypass defense under
40 CFR 122.41(m)-(n), for events that are beyond the reasonable control
of the operator, including weather events as well as other unforeseen
or uncontrollable conditions. However, EPA recognizes that the upset
and bypass provisions do not provide certainty to the operator that any
particular unpermitted discharge will be excused. CAFOs operating
innovative technologies in particular may be reluctant to rely on these
provisions. Therefore, in order to provide some upfront assurance that
the design, construction, operation, and maintenance of their system
meets the requirements of the new source effluent guidelines, EPA is
proposing to allow permit writers to verify in advance that the
designed system is a zero discharge system. EPA is proposing this
alternative approach in order to provide this additional level of
certainty and to encourage the development of new and innovative open
system technologies.
While one component of preventing discharge from an open system is
to provide adequate storage of manure and wastewater during critical
periods, ensuring adequate physical capacity is not sufficient. Rather,
adequate storage is based on a site-specific evaluation of the CAFO's
entire waste handling system. Adequate storage has to be based on
climate-specific variables that define the appropriate storage volume,
[[Page 37761]]
but of equal importance are the nutrient management plan and other
management decisions that dictate when and how the storage can be
emptied. The link between adequate storage and land application
practices is one of the most critical considerations in developing and
implementing a site-specific nutrient management plan. For example, the
amount of land available for application, the hydraulic limitations
(ability of the land to handle additional water without the occurrence
of runoff), geology, and soil properties of the available land base can
play an important role. See Chapter 2 of EPA's technical guidance for
CAFOs ``Managing Manure Nutrients at Concentrated Animal Feeding
Operations'' (EPA-821-B-04-00) for more information.
Given these considerations, EPA is proposing requirements for
approval of site-specific management practices for such open
containment systems with the expectation that a system designed in
accordance with these requirements will meet the no discharge standard
within the limits of design and operational foreseeability. EPA
believes that the design, operation and maintenance elements and
analytical assessment required under this alternative are sufficient
for this purpose. The assessment process was previously described in
two papers delivered to the American Society of Agricultural Engineers,
available in today's record (Moffitt et al., (2003), DCN 1-01233 and
Moffitt and B. Wilson, (2004), DCN 1-01224).
The first step is to gather information about the specific
operation to be analyzed and the regulatory framework in which it
operates. The regulatory framework could include: state requirements
for minimum storage periods for rainy seasons or winter or additional
minimum capacity requirements for chronic rainfall; technical standards
that prohibit or otherwise limit land application to frozen, saturated,
or snow-covered ground; standards that further limit land application
where there is a high risk of nutrient transport; increased storage
requirements for manure intended to be transferred to another recipient
at a later time; and any other special requirements that would impact
the size of the storage facility. The operator's management options and
needs should also be included in the design and evaluation, as
discussed below. The accuracy of this first step is critical to
designing and evaluating a manure storage facility. A check sheet of
possible considerations based on 40 CFR 412.46(a)(1) may help ensure
the right information is gathered, and EPA solicits comment on what
relevant information must be included in the analysis as a minimum.
The second step is the design of the storage facility using design
procedures in the USDA Natural Resources Conservation Service's (NRCS)
``Agricultural Waste Management Field Handbook,'' NEH-651. This will be
done using Animal Waste Management (AWM) software, which is NRCS's
manure storage and treatment planning/design software tool for animal
feeding operations that can be used to estimate the production of
manure, bedding, and process water and to determine the appropriate
size of storage/treatment facilities. The Common Computing Environment
(CCE) version of AWM 2.10 is currently available on the web, and
planned software updates in the near future are not expected to change
the general form of the tool. Site-specific input to AWM includes
climate data for 30 years consisting of historical average monthly
precipitation obtained from local weather stations, and evaporation
values obtained from the National Oceanic and Atmospheric
Administration (NOAA) handbook. Additional inputs include animal
numbers and typical animal sizes/weights, added water and bedding (if
any), and the size and condition of outside areas exposed to rainfall
and contributing runoff to the storage facility. AWM allows the user to
specify a storage period (months), and the software will design for the
series of months with the most rainfall. The program will not design a
system in excess of 12 months, as such designs are not recommended. As
an alternative, the user can designate months when the storage pond can
be emptied, and AWM sizes the pond based on the months with the most
precipitation between pumping events. The output of this step is the
design of a waste storage facility. AWM provides a series of reports
describing the storage facility and providing a listing of the related
specifications including the dimensions of the storage facility, daily
manure and wastewater additions, the size and characteristics of the
fields, and other management assumptions such as storage period.
The third step is an evaluation of the adequacy of the AWM designed
storage facility using the Soil Plant Air Water (SPAW) Hydrology Tool.
The current version of SPAW is 6.1. SPAW is a field-level tool that
uses a modified Soil Conservation Service Curve Number Method to
develop water budgets for agricultural fields. SPAW is used by NRCS to
evaluate the design procedure in the ``Agricultural Waste Management
Field Handbook,'' NEH-651 (DCN 1-1231). Water budget processes are
evaluated by making daily adjustments to crop canopy cover and
antecedent soil moisture. Field water budgets can be used for
evaluating runoff and infiltration from precipitation events. SPAW also
provides an integrated pond module to develop pond water budgets that
is ideal for assessing the adequacy of an open containment system.
Input to SPAW includes daily precipitation, temperature, and
evaporation data; storage facility dimensions and manure related
quantities extracted from AWM; and the strategies for managing the
storage facility. For each user-specified soil profile and crop
rotation, SPAW simulates possible runoff from fields as well as the
irrigation water needs of fields receiving the storage effluent.
Hydrologic groups are used to rate soils for potential to release
excess water down grade.
EPA notes that where AWM software is used for design and SPAW is
used for evaluation, additional software for nutrient management
planning may be appropriately linked and the NMP data can then be
imported. For example, see 6-12 of ``Managing Manure'' (EPA-821-B-04-
009) for a discussion of ``Manure Management Planner'' or ``MMP,'' a
comprehensive Windows-based planning tool for manure management.
SPAW is then run with the site-specific historic rainfall records
to see if the open containment system (referred to as a pond in SPAW)
and associated management and land application was adequate to
eliminate any discharge. EPA has concluded that 100 years of data is an
adequate timeframe for simulation purposes and will support a
reasonable finding of no discharge. However, EPA is aware that 100
years of continuous rainfall data may not be available for many CAFOs.
The SPAW model can be run using actual rainfall data where available,
and then simulated with a confidence interval analysis over a period of
100 years. The SPAW model shows not only that the storage facility does
not discharge, but also that there is no runoff of wastewater from
fields during land application activities, which is necessary to ensure
that the open containment system is operated in a way to meet the land
application requirements of the rule. In practice, if the SPAW
evaluation indicated any level of discharge or any spillway flow, the
pond design volume could be increased in size in AWM, the new
dimensions converted to SPAW input, and the simulation done again. This
iterative procedure could continue until
[[Page 37762]]
the pond simulation predicts no discharge. If the facility shows no
discharge over the 100 year simulation, then EPA has concluded that the
lagoon or pond has been designed to achieve the requirement of no
discharge.
EPA has obtained several case studies using this approach to
design. Example CNMPs were obtained from Georgia, South Carolina,
Nebraska, North Carolina, and Iowa. Each of these CNMPs was used as the
basis of design for a new facility. The CNMPs were used to get animal
numbers and average weights, crop acreage, location for climate
records, storage period, and information about spreading of manure and
wastewater. The design volume is generally pumped out of the storage
facility twice a year (once in the spring, and once in the fall). These
are large pump down events, and it is part of the planning and design
process to assure that there is sufficient land and pumping capacity to
accomplish this activity. These case studies allow two weeks for this
pump down to occur. In the few instances when the storage volume
approaches the volume reserved for precipitation and runoff, the
additional volume is pumped out of the storage facility as soil
conditions permit. In some cases, wastewater removals for irrigation
were simulated based on crop consumptive use capability. These are
small pump out events. The first case study is a confinement swine
operation in Nebraska which had 1600 grower pigs with an average weight
of 140 lbs. This example facility has the waste storage pond emptied
three times a year. The storage pond has an emergency spillway at nine
feet and the depth of storage for the design storm is six inches.
Several years within the simulation, the storage volume did reach the
level reserved for the design storm, but pump-out was able to occur to
restore the storage volume. See DCN 1-01225 for more information. The
second case study is a similar facility in Georgia which uses a center
pivot irrigation system. In this particular case, the landowner can
irrigate almost year round since the crop is a hayfield with a winter
small grain. This particular facility is designed for a 150 day storage
period. This facility was simulated using a two times per year pumpdown
schedule as well as a year-round pumpdown, both resulting in a no
discharge system. Additional case studies may be found in EPA's record
(DCN 1-01226.).
In these case studies, the AWM design is simulated using SPAW with
the result of no predicted discharges. If the AWM design does not
result in a system that would comply with the no discharge
requirements, the CAFO could evaluate different design and management
options (such as different storage periods and dewatering schedules
consistent with the CAFO's NMP) that do not result in any predicted
discharges, or the CAFO could conclude an open system is not
appropriate for the particular site being evaluated.
Under today's proposal, EPA would require certain specified
information regarding design, operation, and maintenance of the system
to be included in the CAFOs NMP under 40 CFR 122.42(e)(1). This
includes the key user-defined inputs and model system parameters. EPA
proposes to require a site-specific analysis and require certain
elements of the analysis be submitted to the Director. (See 40 CFR
412.46(a)(1).) These site-specific design, construction, operation, and
maintenance measures would then become enforceable requirements in the
CAFO's permit. As long as the CAFO complies with these requirements,
the CAFO would presumptively meet the no discharge requirement. The
burden would be on the CAFO to demonstrate that any open system it
employed meets the new source standard. EPA believes that this would
provide a clear and enforceable standard for the CAFO as well as
provide assurance to the public that the proposed system would comply
with the no discharge requirements.
Under today's proposal, the Director has the discretion to require
additional information from a new source Subpart D CAFO owner or
operator to support site-specific effluent limitations. EPA is aware
that other peer-reviewed models and programs have been or may be
developed that could be determined to be equivalent to AWM and SPAW.
Therefore the proposed rule gives the Director the discretion to
approve design software or procedures equivalent to AWM and SPAW. EPA
solicits comment on this approach to demonstrating that an open storage
system meets the no discharge requirements and providing an alternate
approach for facilities that comply with the enforceable design,
construction, operation and maintenance measures developed under the
approach.
The information, design, and evaluation process in today's proposal
is intended to allow CAFOs the flexibility to demonstrate compliance
with the no discharge requirements for any type of open storage
facility. As a practical consideration, EPA expects most CAFOs
selecting this compliance alternative will submit designs for open
manure storage structures accompanied by a narrow range of acceptable
operation and management practices. However, for a given type of
storage facility design (for example, a constant volume anaerobic
digester followed by an open storage pond sized for 12 months storage
of treated manure), EPA believes it is possible to conduct a series of
assessments for a specified geographic area that fully encompass the
range of operational and management measures that would be used across
multiple CAFOs with the specified storage facility. In this case, SPAW
could be run to validate a wide range of NMP and storage pond
management scenarios. The Director may then determine that any CAFO
using the specified facility type and submitting a plan that falls
within the pre-approved range of operational and management practices
would not need to conduct the assessment step (i.e., the validation
using SPAW) individually. EPA solicits comment on this approach to
streamlining the evaluation process for those CAFOs submitting ``pre-
approved'' designs and operational procedures.
EPA is proposing this compliance option only for new Subpart D
facilities that employ open manure storage structures, because EPA
believes that facilities employing other manure handling technologies
(e.g., under house pits) will be able to ensure zero discharge of
manure, litter, and process wastewater without having to employ the
detailed design, modeling, and evaluation approach described here.
However, EPA recognizes that other types of new Subpart D facilities
required to meet the zero discharge standard might believe that such an
approach should be available to them as well. EPA thus requests comment
on whether it should develop a comparable provision for facilities
other than those employing open manure storage structures under which a
facility could demonstrate in advance through a rigorous modeling
analysis that it was designed, operated and maintained to achieve zero
discharge, and subsequent compliance with the site-specific design,
construction, operation and maintenance components of this
demonstration would then constitute compliance with the no-discharge
requirement in the rule.
(b) Superior Alternative Performance Standards
EPA proposes to delete 40 CFR 412.46(d) and remove the voluntary
superior performance standards provision for new swine, poultry, and
veal sources. The court ruling states that EPA cannot establish
production area standards that substantially prevent discharges as
equivalent to standards
[[Page 37763]]
that prohibit discharges outright. In accordance with this ruling, EPA
is proposing to withdraw this provision.
E. Remand Concerning Pathogens for BCT
1. What Were the BCT Provisions in the 2003 CAFO Rule?
The CWA requires compliance with progressively more stringent
technology-based limitations. The Act requires existing point sources
to comply with limitations achievable by application of the ``best
practicable control technology presently available'' or ``BPT.'' These
limitations control conventional, priority, and/or nonconventional
pollutants, and are typically based on the average pollutant removal
performance of the best facilities examined by EPA. EPA also bases
limitations on the discharge of toxic or non-conventional pollutants on
the ``best available technology economically achievable,'' or ``BAT.''
The 1977 amendments to the CWA required EPA to identify effluent
reduction levels for conventional pollutants associated with ``best
conventional pollutant control technology'' or ``BCT'' for discharges
from existing industrial point sources. BCT is not an additional
limitation, but replaces BAT for control of conventional pollutants.
Effluent limitations based on BCT may not be less stringent than the
limitations based on BPT. Thus, BPT effluent limitations are a
``floor'' below which BCT effluent limitations cannot be established.
Section 304(a)(4) designates the following as conventional pollutants:
biochemical oxygen demand (BOD), total suspended solids (TSS), fecal
coliform (FC), 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).
The Clean Water Act Amendments that created BCT also specify that
the cost associated with BCT effluent limitations be ``reasonable''
with respect to the effluent reductions. Accordingly, the ``BCT
Methodology'' was developed to answer the question of whether it is
``cost-reasonable'' for industry to control conventional pollutants at
a level more stringent than already required by BPT effluent
limitations. The BCT methodology was originally published on August 29,
1979, along with the promulgation of BCT ELGs for 41 industry
subcategories (44 FR 50732). The crux of the methodology was a
comparison of the costs of removing conventional pollutants for a
candidate BCT technology within a particular industry segment, to the
costs of removal for an average-sized publicly owned treatment works
(POTW). The Fourth Circuit remanded the regulation, and directed EPA to
develop an industry cost-effectiveness test in addition to the POTW
test. EPA proposed a revised BCT methodology in 1982 (47 FR 49176) that
addressed the industry cost-effectiveness test (the ``second'' test).
EPA proposed to base the POTW benchmark on model plant costs in a 1984
notice (49 FR 37046). The final BCT methodology was published on July
9, 1986 (51 FR 24974), maintaining the basic approach of the 1982
proposed BCT methodology and adopting the use of the new POTW data.
In the 2003 CAFO rule, EPA established BPT-based effluent
limitation guidelines or ``ELGs'' for large beef, dairy, veal, swine,
and poultry CAFOs. These effluent limitation guidelines prohibit the
discharge of manure, litter, or process wastewater into waters of the
U.S. from the production areas at the CAFOs. (40 CFR 412.31(a).)
However, when precipitation causes a discharge of manure, litter, or
process wastewater, this may be allowed provided certain conditions are
met. (40 CFR 412.31(a)(1).) In order to qualify for this allowance, the
CAFO must have a properly designed and constructed storage structure
with the capacity to contain all manure, litter, and process wastewater
and the runoff and direct precipitation from a 25-year, 24-hour
rainfall event. (40 CFR 412.31(a)(1)(i).) In addition, the CAFO's
production area must be operated in accordance with specified best
management practices (BMPs). (40 CFR 412.31(a)(1)(ii).) The rule also
established other BMPs governing CAFO wastes applied to land under the
control of the CAFO. (40 CFR 412.4.) EPA estimated that the ELGs will
achieve significant reductions in the annual water pollutant load from
Large CAFOs nationwide, including 155 million pounds of nutrients
(e.g., nitrogen and phosphorus), over two billion pounds of sediments,
and a 46 percent reduction in discharges of pathogens including fecal
coliform. (68 FR 7239, Table 7.2.)
In establishing the ELGs in the 2003 rulemaking, EPA also
considered reductions in conventional pollutants, including BOD, fecal
coliform, and TSS. However, it was difficult for EPA to assess fecal
coliform loadings and reductions because they vary greatly depending on
site characteristics. Moreover, quantifying discharges of conventional
pollutants from land application areas is difficult due to the
challenges of: Distinguishing between CAFO sources of pollutants and
non-CAFO sources of pollutants; determining what share of pollutants
reaching the edge of field reach surface waters; and quantifying the
potential for regrowth of fecal coliform both after treatment and after
land application of manure. Despite these challenges, EPA estimated
approximate reductions of fecal coliform associated with the following
technology options considered in the 2003 rule: Option 1 (nitrogen-
based land application rates and zero discharge from the production
area with an overflow allowance under specified conditions); Option 2,
the final option selected (limiting nutrient-based land application
rates and zero discharge from the production area with an overflow
allowance under specified conditions); Option 3 (Option 2 plus
permeability limitations on lagoons and ponds for protection of ground
water based on synthetic lagoon liners); Option 5 (Option two except no
overflow allowance for swine and poultry; Option 5a (Option 5 plus
drier manure management such as composting for beef and dairy
operations); and Option 6 (Option 2 plus anaerobic digestion with
energy recovery for large swine and dairy operations). Pollutant
reduction estimates for these options were provided in the final rule.
For beef and dairy operations (subcategory C facilities), EPA also
evaluated BOD and TSS reduction associated with Option 7 (Option 2 plus
a national prohibition on land application of manure to frozen, snow-
covered, or saturated ground), but did not present the pollutant
removal estimates for this option.
Because of the difficulties associated with quantifying reductions
of conventional pollutant discharges, EPA relied primarily on sediment
discharges (as a surrogate for TSS) in establishing BCT requirements.
Following this approach, EPA identified no BCT technology option that
achieves significantly greater TSS removals than the BPT requirements
eventually promulgated in 2003 except for Option 5. EPA determined
Option 5 was not economically achievable for subcategory D (68 FR
7218). EPA therefore concluded that there were no available BCT
technologies on which to base limits for conventional pollutants that
were more stringent than BPT, and established BCT requirements equal to
BPT in the 2003 CAFO rule (see 40 CFR 412.33 and 412.44). If EPA had
identified available technology options that achieve greater reductions
of conventional pollutants than are
[[Page 37764]]
achieved by BPT, then EPA would have performed the two-part BCT cost
test required by CWA section 304(b)(4)(B). (68 FR 7224).
2. Summary of the Second Circuit Court Decision
In its February 28, 2005, decision, the Second Circuit Court of
Appeals remanded the 2003 CAFO rule's BCT standard for pathogens. In
the court's view, the 2003 CAFO rule violated the Clean Water Act
because EPA did not make an affirmative finding that the BCT-based ELGs
adopted in the CAFO rule do in fact represent the best conventional
pollutant control technology for reducing pathogens--specifically,
fecal coliform. The court noted that EPA may well determine that the
ELGs otherwise adopted by the CAFO rule do in fact represent the best
conventional pollutant control technology for reducing pathogens. The
court further noted that EPA may determine, after considering all the
relevant factors, that the ELGs otherwise adopted by the 2003 CAFO rule
will directly--not just incidentally--reduce pathogens and do so better
than any other pollutant control technology.
3. This Proposal
In today's notice, EPA finds that the BCT-based ELGs adopted in the
2003 CAFO rule do in fact represent the best conventional pollutant
control technology for removal of pathogens, including fecal coliform.
First, EPA discusses its evaluation of various candidate technologies
to assess whether they are technologically feasible for facilities in a
subcategory and would achieve greater reductions of fecal coliform than
the technologies selected as the basis for BPT limitations in the 2003
rule. Specifically, EPA presents pathogen reductions associated with
technology Options 3, 5, 6 and 7 described previously and discussed in
the 2003 docket. EPA notes that these regulatory options are discussed
here even though EPA has already determined these options are either
not technologically feasible or not economically achievable, because
these options may provide more reductions of pathogens than the option
selected for the final 2003 CAFO ELGs. EPA did not consider Options 1
and 4 because they do not provide any further pollutant reductions over
the final selected Option 2. Today, EPA also presents additional
candidate technologies for pathogen reductions: Fluidized bed
incinerators; composting for poultry; chemical addition for
disinfection; and additional storage to comply with a national
prohibition of land application to frozen, saturated, or snow-covered
ground (Option 7) for the swine industry (Option 7 for the beef and
dairy industries was already presented in 2003).
Second, today's proposal provides results of the BCT cost-
reasonableness test for the candidate technology options. EPA finds
that none of these candidate technologies would pass either part of the
BCT cost test. Therefore, EPA has concluded that any combination of
these technologies developed into a regulatory option for a subcategory
would also not pass the BCT cost test. Finally, because the traditional
BCT cost test has been based on pollutants other than fecal coliform,
today's proposal presents an approach to conducting the POTW cost test
for CAFOs that explicitly addresses fecal coliform. Today's notice
presents the results of applying this cost test to the candidate BCT
technology options considered for CAFOs. None of the candidate
technology options would pass the alternative BCT cost test. Each of
these analyses is described in more detail below.
(a) Are There Technically Feasible Candidate Technologies That Achieve
Greater Reductions for Fecal Coliform Than Technologies Selected for
BCT in the 2003 Rule?
EPA evaluated numerous sources of data on CAFO manure management
systems, including treatment technologies and best management practices
(BMPs) for pollution prevention, as well as for the handling, storage,
treatment, and land application of wastes. These data sources included
available technical literature, over 11,000 comments submitted by
industry and other public commenters, and insights gained from
conducting over 116 site visits to CAFOs. EPA specifically identified
several technologies and BMPs for the reduction of fecal coliforms and
other pathogens, including digesters, fluidized bed incinerators,
chemical addition for disinfection, composting, and deep stacking of
poultry litter (see descriptions of these and other technologies in
Chapter 8 of the TDD). Production area practices and land application
practices were also evaluated. Each of these potential candidate BCT
technologies is summarized below:
Anaerobic Digestion. EPA specifically evaluated anaerobic digesters
as a candidate technology option in the 2003 rule, identified as Option
6 in the preamble and supporting documents (see Chapter 1 of the ``Cost
Methodology for the Final Revisions to the NPDES and ELG for CAFOs'' or
``Cost Report,'' EPA-821-R-03-004). However, EPA rejected this
technology for BCT because anaerobic digesters are not demonstrated to
be technically feasible at all CAFOs. Specifically, wastes from beef,
heifer, and poultry operations would not support the operation of these
treatment systems. (68 FR 7217.) Even for those types of CAFOs that
generate quantities and types of manure and wastes more conducive to
the digestion process (e.g., dairy and swine facilities above a minimum
size), the use of digesters does not necessarily lead to significant
reductions for many of the pollutants present (e.g., nutrients,
metals).
There are three basic temperature regimes for anaerobic digestion:
Psychrophilic, mesophilic, and thermophilic. Psychrophilic, or low-
temperature, digestion is a natural decomposition process at
temperatures typically found in lagoons. The hydraulic retention time
for stable operation varies from 30 days to 90 days depending on
temperature. EPA notes this same time-temperature relationship occurs
in typical manure storage facilities, and results in some of the
reduction of pathogens (including fecal coliform) that were estimated
for the 2003 CAFO rule. Mesophilic digestion reduces the retention
period to 12 to 20 days. In some limited cases digesters were shown to
reduce fecal coliform by as much as 99 percent, particularly by
thermophilic (higher temperatures in the range of 135 to 155 degrees
Fahrenheit) digestion, but regrowth of both fecal coliform and other
pathogens was shown to occur during effluent storage. (68 FR 7217.) EPA
did not receive any public comments or data during the 2003 rulemaking
process that provided a reliable means of either quantifying this
regrowth or differentiating the performance of digesters from the die-
off and regrowth that occurs in untreated manure storage facilities.
Most importantly, a digester does not eliminate the need for the CAFO
to have liquid impoundments for process wastewater, treated wastewater,
and storm water runoff. EPA previously noted that the digester process
may stabilize manure, and may offer certain other benefits (e.g.,
energy recovery, control of methane emissions), but as a result of the
storage requirements (and associated potential for regrowth) the
technology would not necessarily result in decreased discharges of
pollutants (including pathogens) beyond the selected BPT option. (68 FR
7217.) EPA notes that digestion may also be conducted aerobically, but
this variation
[[Page 37765]]
is rarely seen at CAFOs due to process problems, design challenges,
high energy requirements, and disproportionately high costs. (See Table
8-14 of the TDD for a list of aerobic digestion and activated sludge
processes.)
EPA further notes that digesters do not reduce the total nutrients
in animal wastes. Most of the phosphorus removed from the effluent is
concentrated in the digested solids, which are often used for land
application. Other data show that changes in pollutant composition,
particularly the soluble forms of nitrogen, could result in increased
discharges of pollutants following land application of digested manure,
specifically ammonia releases and other emissions. (See Chapter 8 of
the TDD.) Similarly, metals are not reduced and remain in the digester
effluent and solids. EPA further rejects this technology as practical
for all CAFOs due to the high failure rate of these systems at certain
types of facilities (see Cost Report, page 5-119), as well as the
substantial costs including significant capital costs and the large
uncertainty in any potential annual cost offset due to energy recovery.
As of October 2002, there were 40 CAFOs with operating digesters out of
several hundred thousand AFOs nationwide, of which 35 were able to
partially offset costs through biogas recovery. In addition, EPA
continues to believe that mandating the use of anaerobic digesters
could divert resources from or complicate the installation of other
technologies that can potentially achieve better performance overall.
This finding does not alter EPA's previous conclusion that the use of
digesters by CAFOs on a site-specific basis may be appropriate in some
circumstances (e.g., as part of a manure management system to comply
with the new source requirements (see 68 FR 7220), but today's proposal
concludes that the technology is not an appropriate basis for setting
national BCT standards for conventional pollutants.
Despite EPA's conclusion that digesters are not technologically
feasible for many CAFOs across a subcategory, today EPA presents the
BCT cost test for those CAFOs where the digester technology is most
likely to be feasible--large swine and dairy facilities. This option
includes treatment in a mesophilic digester (either a heated covered-
lagoon digester, plug flow, or complete mix digester, with biogas
recovery) prior to manure storage. Treated manure is assumed to be
stored in the CAFOs existing manure storage facility and land applied
consistent with the BPT requirements of 40 CFR 412.
To evaluate costs and pollutant reductions of all technologies
presented today, EPA used the same 1,600 farm-based cost models EPA
used in the 2003 CAFO rule (68 FR 7243; also see Chapters 2 and 5 of
the Cost Report). Digester costs were determined using EPA's AgStar
Farmware (version 2). As described above, quantifying pathogen
reductions is difficult. For purposes of conducting the cost-
reasonableness test, EPA assumes the heated digester system will reduce
fecal coliforms in the stored manure by 99 percent (atwolog order
reduction). EPA's digester option costs include cost-offsets due to
biogas recovery and energy recovery, and a new storage pond for
effluent storage if the CAFO did not already utilize a liquid storage
structure. EPA's costs also include annual technical consultation and
services necessary to assure effective digester system operation, and
optimal biogas generation and energy recovery.
Runoff of land applied manure was simulated using the Groundwater
Loading Effects of Agricultural Management Systems (GLEAMS) models EPA
developed for the 2003 CAFO rule (see III-19 of ``Loads Report'').
GLEAMS is a field-scale model that simulates hydrologic transport,
erosion, biochemical processes such as chemical transformation and
plant uptake, and nutrient losses in surface runoff, sediment, and
groundwater leachate and is described in the Loads Report. The National
Water Pollution Control Assessment Model (NWPCAM) is a national
surface-water quality model designed to characterize water quality for
the nation's network of rivers, streams, and lakes. In the 2003 CAFO
rule analysis, NWPCAM simulations predicted that, on average
nationwide, 75 percent of fecal coliform, 88 percent of BOD5, and 79
percent of TSS that reach the edge-of-field will reach surface waters
(all calculated at the RF3 storm reach level). EPA combined the reduced
discharges of conventional pollutants from modeled production area
overflows (see Loads Report for more information) with the reduced land
application discharges based on the edge-of-field load analyses (the
GLEAMS simulations followed by attenuation in the NWPCAM model) to
quantify reductions in conventional pollutant discharges from both the
production area and the land application area. EPA also conducted
sensitivity analyses on the range of costs of this technology by
considering alternative cost offsets for biogas recovery for energy
production. The specific assumptions and resulting model farm costs may
be found in DCN 22177 and DCN 1-02001.
The incremental costs (annualized costs in 2001 dollars) and
pollutant reductions are shown in Table E.2 which follows the
discussion of technology options analyzed. 2001 dollars are used for
comparability with POTW benchmark costs. The cost index used to bring
forward CAFO costs to year 2001 is the same index that was used to
bring forward POTW benchmark costs to year 2001 dollars. Since the POTW
cost test compares cost to pollutant ratios for both industry and
POTWs, applying the same cost index to both ratios would not change the
overall comparison of these ratios. For this reason, EPA has determined
that it is not necessary to bring the 2001 costs forward to current
year dollars for any technology option presented today.
Fluidized Bed Incinerators. This technology was reviewed but not
considered as a technology option in the 2003 CAFO rule. Fluidized bed
incineration is a proven technology for reducing waste volume and for
converting the waste to useful products (e.g., energy, nutrient
enriched ash), and is being used at municipal waste disposal
facilities. However, even at municipal operations, incineration can be
a costly method of disposal and frequently requires co-combustion with
other feedstocks.
In addition, incinerators are not widely used in the United States
to manage animal manure because they are generally not affordable to
individual CAFOs. Application of this technology has been attempted
unsuccessfully by a beef feedlot in the U.S., but the incinerator
thermal output could not be sustained (TDD, 8-93 to 8-95). Fluidized
bed incinerators are also sensitive to moisture content and fuel
particle size, limiting incinerator effectiveness to those wastes that
are no more than 15-20 percent moisture.
Individual poultry CAFOs in the U.S. do not currently use
incineration as a method of handling excess poultry litter, although
centralized incinerator projects have been successfully developed in
the European Union in selected geographic areas with a high density of
poultry operations, and several similar systems have been proposed in
the U.S. These centralized incinerators reduce pathogens in the litter.
However, large-scale, centralized incineration plants have not yet
successfully translated into feasible, smaller-scale units for
individual CAFO use. (See Chapter 8 of the TDD.)
[[Page 37766]]
EPA is aware that it is also possible to gasify manure solids on-
farm, but this technology is still in the pilot stage. EPA is further
aware of a demonstration project that heats the manure in a refractory
oven, and uses the gasses to replace propane in a mortality handling
system. EPA is not aware of any individual CAFOs using incineration due
to fuel costs, the high capital costs of the incineration unit, and the
inability to sustain the technology for most animal manures. EPA
therefore rejects this technology as not technologically feasible for
individual CAFOs.
Chemical Disinfection. Methods of disinfection include chemical
addition, heat, mechanical methods, and radiation. Various types of
chemical addition for the purpose of disinfection were reviewed but not
selected as part of a technology option in the 2003 CAFO rule. (See
Chapter 8 of the TDD for more information.) Commonly used disinfection
technologies in the U.S. include the addition of chemicals such as
chlorine, calcium hypochlorite, sodium hypochlorite, lime, and ozone.
Chlorination has a history of select pathogen destruction effectiveness
and is relatively inexpensive when used as a polishing step for final
incremental removal of pathogens. The Occupational Safety and Health
Administration (OSHA) has established intensive training and safety
measures for chlorine use. (DCN 1-01198.) Organic compounds present in
typical CAFO wastewater can combine with chlorine to form chloroform (a
documented animal carcinogen), monochloramines, and other toxic chloro-
organic compounds. Chlorine dioxide is widely used as an alternative
bactericide, but requires expensive generating equipment, and produces
chlorate and chlorite as potentially undesirable by-products. Chemical
addition is not commonly practiced in the United States for treatment
of animal wastes. In order for chlorination to be optimally effective
and to minimize the generation of chlorinated by-products, the treated
wastewater should have low levels of suspended solids--generally 30 to
50 mg/l or less. Therefore, to implement chlorine-based disinfection,
animal wastewater would require primary and/or biological treatment
prior to disinfection. Storage tanks, dosage control equipment, and
mixing equipment would need to be retrofitted. The capital investment
to modify a typical CAFO's existing manure management system would be
costly and operation of the system would require higher levels of
maintenance and operator skill.
Lime addition is used as a disinfectant for animal wastes found in
barns and milking parlors. Lime addition is a proven treatment
technology for achieving Class A and Class B biosolids standards. To
meet Class B requirements using lime stabilization, the pH of the
biosolids must be elevated to more than 12 for two hours and
subsequently maintained at more than 11.5 for 22 hours. The material
also needs to be kept at high temperature (70 degrees Celsius) for at
least 30 minutes, which would require outside heating of the material
to be treated. EPA has very little data on the scalability of the
technology to individual CAFOs. What data there is suggests that the
capital costs for holding tanks, dosage tanks, mixing equipment, and
neutralization tanks necessary for retrofitting this technology at
CAFOs would be high. The addition of lime results in an increase in
sludge volume, although lime stabilization generally requires less
storage space than alternatives such as composting. Most high moisture
CAFO wastes would require some sort of digestion and/or dewatering
prior to stabilization. EPA believes additional costs for operator
training, safety controls, chemical purchases, and increased volume of
materials that must be hauled and land applied may be another reason
the technology has not been adopted by CAFOs given the successful
application of lime addition to biosolids. Lime addition in poultry
houses has been shown to interfere with pesticide functionality, and
lime addition to poultry litter has been shown to cause a huge flush of
ammonia emissions from the litter. EPA further notes that the addition
of lime to organic wastes in general has been shown to accelerate
ammonia emissions.
Ozone is a highly effective germicide against a wide range of
pathogenic organisms, including bacteria, protozoa, and viruses. Ozone
use in U.S. wastewater treatment is limited due to high capital and
operating costs and intensive energy requirements. Ozonation, like
chlorination, requires a wastewater that has relatively low levels of
solids to avoid regrowth of microorganisms after disinfection and limit
costs associated with oxidizing oxygen demanding solids. Ozone
disinfection technology is not commonly used in the United States for
treatment of animal wastes. The processes are costly and require higher
levels of maintenance and operator skill. Efficient ozone disinfection
requires a pH of 6-10 and temperature of at least 36 degrees
Fahrenheit. (TDD, p. 8-117.) To implement this technology, animal
wastewater would require primary and/or biological treatment prior to
disinfection (DCN 1-01198). Therefore, EPA rejected ozonation as
impractical due to high operation and maintenance requirements, high
operator skill requirements, considerable worker safety concerns, and
overall high costs.
For the above reasons, EPA finds that all of these chemical
addition technologies are not technically feasible for individual
CAFOs.
Deep Stacking and Composting of Poultry Litter. Deep stacking
consists of piling litter in a conical pile or stack after it is
removed from a poultry house and raising the temperature to a maximum
of 140 Fahrenheit (60 Celsius) by microbes. As with anaerobic
digestion, incineration, and in some cases, chemical addition, the heat
(high temperature) reduces pathogens. Although the practice of deep
stacking poultry litter enhances its potential value as a feedstuff for
ruminants by reducing concern about possible pathogen transmission, the
stacked poultry litter is not pathogen free. The stacked litter is not
mixed out of concern that re-aeration will create the potential for
excessive heating. Thus, outer regions of the deep stacked litter do
not reach the temperatures necessary for pathogen destruction. In
practice, deep stacking may be considered a specialized approach to
composting in which oxygen availability limits the overall temperature
and the degree to which dry matter (``volatile solids'' or ``VS'') are
destroyed. (TDD, p. 8-131 to 8-132.) Due to the lack of reliable data
on the overall effectiveness of the technology in reducing fecal
coliform, the operational similarities to windrow composting (an option
already evaluated), and limited applications to limited types of
poultry CAFOs, EPA rejects deep stacking as not technically feasible
for consideration as a BCT candidate.
For more general composting practices (e.g., windrow composting),
EPA notes that the effectiveness of the technology is weather
dependent, it requires a large amount of land, and additional runoff
controls and wastewater storage, and its use would impose a much higher
operating cost on CAFOs. (TDD, p. 8-102 to 8-110; Cost Report, Section
5.12.) Not withstanding these limitations, some CAFOs successfully use
composting technologies. Windrow composting in particular is available
to a range of CAFOs, and was included in technology option 5a for beef
and dairy operations in the 2003 rule. Composting is also a
[[Page 37767]]
technically feasible technology for incremental pathogen removals at
most poultry operations. Composting was therefore further evaluated for
cost reasonableness for beef, dairy, and poultry operations as part of
today's proposal.
As with the digester option, the model farms used in the analysis
were the same as those used in the 2003 final CAFO rule. Costs were
based on windrow composting, and include turning equipment, labor,
berms for runoff controls, a storage pond for collection of compost
site effluent, and solid-liquid separation for beef and dairy
facilities. For purposes of this analysis, EPA assumes 99 percent
reduction of fecal coliform in the manure or litter prior to overflows
from storage ponds or runoff from land application of the manure. EPA
is aware that some composting operations today offset their costs
through sales of the composted material. EPA believes regulatory
requirements that resulted in all facilities in a geographical area
composting their manure would flood the local market and significantly
reduce a CAFO's ability to offset costs through compost sales. For this
reason, compost sales cannot reliably be included as cost offsets for
this option.
Ground water controls. As discussed above, the ground water option
(2003 CAFO rule Option 3) may result in decreased discharges of
pollutants in comparison to the final BPT requirements. However, EPA
concludes the conventional pollutant reductions for Option 3 are small.
In analyzing this option, soil permeability was used to determine
leakage values (a reflection of the pollutant mobility in the soil
under the manure storage area). Estimated costs included a retrofit
installation of synthetic liners plus monitoring wells in the vicinity
of manure storage structures. EPA estimated national pollutant
reductions by first looking at each geographical region's probability
for ground water contamination. Factors influencing potential for
ground water contamination include the presence of sandy soils, shallow
groundwater tables, and the presence of karst or karst-like terrain
(see Table 29 in section III.G of the Loads Report). Regional loads
were summed to generate a national load estimate. The incremental costs
and pollutant reductions for this option in the 2003 CAFO rule analysis
are presented in Table E.2.
No discharge option. As discussed above, the no discharge option
for existing swine and poultry facilities (2003 CAFO rule Option 5)
would result in decreased discharges of conventional pollutants in
comparison to the final BPT requirements. In the earlier rulemaking,
EPA rejected this option for BAT because it was not found to be
economically achievable. Consequently, this option is not an available
BCT technology. The incremental costs and pollutant reductions from the
2003 CAFO rule analysis are presented in Table E.2.
Production Area Management Practices. One mechanism for pathogen
discharges to surface waters is catastrophic spills. In the 2003 rule,
EPA required various production area management practices to address
catastrophic spills, and has not identified any additional production
area management practices that would further reduce pathogen discharges
from the production area.
EPA expects that the 2003 rule 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 (40 CFR 412.37(a)(1) and (2)). At the
production area, operators are required to handle animal mortalities in
a manner so as to prevent contamination of surface water (40 CFR
412.37(a)(4)). The proper use of manure as a fertilizer is closely
linked with manure storage, typically resulting in increased storage
capacity and longer retention times of both liquid and solid manure
allowing increased opportunity for die-off of pathogens due to
competition, UV, and other factors. For example, runoff from fields
receiving poultry litter that had been stored prior to application
showed no significant difference in pathogen content from runoff from
control fields to which manure had not been applied (GEIS, 1999),
demonstrating that pathogen reductions from lengthy storage times are
significant. (See Response to Comments Document, CAFO400085-16.)
Minimum storage periods, while site-specific, are nonetheless
necessary to meet the land application requirements of the 2003 CAFO
rule (see ``Cost Methodology'' report for more information on typical
storage periods; see Chapter 2 of ``Managing Manure'' for more
information on the link between adequate storage and land application
practices). Adequate storage, though not specifically defined by the
2003 CAFO rule, already accomplishes significant pathogen reductions.
(See ``Loads Report'' for pollutant reduction estimates attributed to
storage and the production area management practices required by the
final CAFO rules.) EPA has not identified any additional production
area management practices that will result in additional reductions of
pathogens.
Land Application Practices. Although the requirements of the 2003
rule related to land application of manure were not specifically
designed to reduce the pathogens in animal wastes, they are effective
at achieving reductions of pathogens in CAFO discharges. In addition to
the production area management practices described above, CAFO
discharges of pathogens are further reduced by applying manure at rates
that ensure appropriate agricultural utilization of nutrients and
establishing setbacks or buffers where manure, litter, and other
process wastewater are not applied. Accordingly, the final rule
requirements include several land application practices, such as
appropriate rates and timing of application, overall consideration of
whether any land application should occur, and application setbacks and
buffers. The 2003 CAFO rule also requires field-specific assessments of
the potential for nutrient transport for each field to which manure may
be land applied. Such assessments must address the source, form,
timing, and method of application. Application rates must minimize
phosphorus and nitrogen transport from the field to surface waters (40
CFR 412.4(c)(2)). Application rate has been identified as the single
most important factor affecting pollution of surface waters from fields
receiving manure. In one case study, swine lagoon effluent applied to
tile drained fields at 1.1 inches showed no difference in runoff
quality from the control fields, but application at three times this
rate yielded high levels of fecal coliform in the adjacent surface
water.
The final selected option also specifies that manure, litter, or
other process wastewaters are not to be applied within 100 feet of any
down-gradient surface waters, open tile line intake structures,
sinkholes, agricultural well heads, or other conduits to surface waters
(40 CFR 412.4(c)(5)). This setback is an area where manure, litter, or
other process wastewaters are not applied, but crops may continue to be
grown. The setback achieves pollutant reductions by increasing the
distance pollutants have to travel to reach surface waters. The
transport of nutrients and other pollutants (including pathogens) in
manure to surface waters and the rate at which transport occurs is
dependent on the land use, geography, topography, climate, amount and
method of manure application, and the nature and density of vegetation
in the area. As a compliance alternative to the setbacks
[[Page 37768]]
requirement, CAFOs may use vegetated buffers (40 CFR 412.4(c)(5)).
EPA's record shows numerous examples of buffers with trapping
efficiencies as high as 91% (e.g., see DCNs 385026, 321083, 22374).
Buffer strips stabilize streambanks and shorelines, and prevent loss of
pollutants from bank erosion and slumping. (Response to Comments
Document, CAFO400085-16.) As indicated above, EPA considered and
selected nutrient management and use of setbacks or buffers for the BPT
ELGs (see 40 CFR 412.4 and 412.37). Because pathogen transport often
occurs through adherence to soil or other solid particles, management
practices that reduce discharges of other pollutants, particularly TSS,
will also reduce pathogen discharges.
As described previously, pathogen die-off occurs during the period
manure is stored prior to land application, and further die-off of
pathogens occurs when the animal waste is exposed to sunlight following
surface application to land. Pathogenic bacteria in particular are
sensitive to changes in environmental conditions. EPA applied the
GLEAMS model to estimate changes in pollutants leaving the land
application areas of CAFO facilities. EPA also calculated reductions in
pathogen indicator loadings from the production area of facilities.
(See Response to Comments Document, Appendix A, Essay: CAFOs as Sources
of Pathogens and Related Risks).
Additional factors affecting pathogen content in the runoff from
land application areas include incorporation methods, tillage
practices, saturation of the receiving field, and elapsed time
following application before a rainfall. These factors are expected to
be addressed, where appropriate, in the State technical standards
required under 40 CFR 412.4(c)(2). For examples, see ``Managing
Manure,'' 2-12 for a discussion of additional storage capacity for the
winter season; Appendix L for technical guidance on minimizing risks of
runoff of manure in the winter; and Appendix M for guidance on
estimating the minimum level of rainfall at which runoff begins.
In the 2003 CAFO rule, 40 CFR 412.4 requires technical standards
for nutrient management to address the form, source, timing, and method
of application to each field. At the time EPA evaluated, but did not
select, technology Option 7 (same as Option 2 plus prohibition of land
application of manure to frozen, snow-covered, or saturated ground).
The incremental costs and pollutant reductions from the 2003 CAFO rule
analysis for this option for beef and dairy facilities are presented in
Table E.3. Today, EPA also presents the costs and conventional
pollutant reductions of this technology option for swine facilities. To
comply with this requirement at swine facilities, EPA has calculated
the costs for additional storage capacity (up to six months additional
storage in the Midwest and Mid-Atlantic regions; facilities in the
Southern region were assumed not to need additional containment for
manure storage over the winter). In all other respects, the cost models
and model farms are the same as those used in the 2003 CAFO rule. EPA
notes some incremental pollutant reductions from the productions area
occur as a result of this requirement due to a reduction in frequency
of overflows from manure storage areas, and that minimal reductions
occur from the land application areas because the technical standards
and NMPs required by the 2003 CAFO rule, while not banning application
of manure to frozen, snow covered and saturated fields outright,
already address timing issues associated with application of manure.
EPA did not identify any additional land application management
practices that will result in additional reductions of pathogens.
(b) Do Any of These Technologies Pass the BCT Cost-Reasonableness Test?
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. The ``cost reasonableness''
test evaluates ``the reasonableness of the relationship between costs
of attaining a reduction in effluent and the effluent reduction
benefits derived, and the comparison of the cost and level of reduction
of such pollutants from the discharge of POTWs to the cost and level of
reduction of such pollutants from a class or category of industrial
sources * * *'' EPA explained its methodology for the development of
BCT limitations in July 1986 (51 FR 24974). In developing the BCT
methodology, EPA was guided by legislative history of the Clean Water
Act, in particular, Congress' concern that controls for conventional
pollutants at levels more stringent than BPT were likely to be
unreasonably expensive in some cases. The BCT methodology answers the
question of whether it is ``cost-reasonable'' for industry to control
conventional pollutants at a level more stringent than BPT already
requires.
Establishing BCT effluent limitations for an industrial category or
subcategory begins by identifying technology options that provide
additional conventional pollutant control beyond that provided by
application of BPT effluent limitations. EPA evaluates the candidate
technologies by applying the two-part BCT cost test. To ``pass'' the
POTW test (the first part of the cost-reasonableness test), the cost
per pound of incremental conventional pollutant removed in upgrading
from BPT to the candidate BCT must be less than the cost per pound of
incremental conventional pollutant removed in upgrading POTWs from
secondary treatment to advanced secondary treatment. The second part of
the test that the ``candidate'' BCT technology must pass is the
industry cost-effectiveness test, discussed below.
Historically, EPA has evaluated the cost-reasonableness of each
technology option on a subcategory basis. However, the candidate BCT
technologies being evaluated for CAFOs vary significantly in costs and
feasibility by animal type within a subcategory of CAFOs (Cost
Methodology Report, EPA-821-R-03-004). For CAFOs, the specific
candidate technologies are not universally applicable. If EPA were to
evaluate each technology across a subcategory, there would not be any
technology that could be applied to an entire subcategory to be
evaluated, and EPA would conclude no technology exists that could be
used to potentially establish BCT limitations more stringent than BPT.
Therefore EPA has evaluated each candidate technology on a species-
specific basis (the animal species for which the technology is believed
to be technologically available). These species-specific results may
then be assembled into candidate technology options that are practical
for a subcategory. This provides a meaningful evaluation of cost-
reasonableness for the entire subcategory, and is therefore both
appropriate and necessary for applying the BCT cost reasonableness
methodology to CAFOs.
As described in the 1986 BCT methodology, the two conventional
pollutants used in calculating the POTW pollutant removal benchmark are
BOD and TSS. As previously discussed, EPA relied primarily on sediment
removals as an indicator of conventional pollutant reductions. The
models available for simulating pollutant reductions from land
application practices (GLEAMS, EPIC, and BASINS) do not measure BOD,
and EPA was not able to quantify BOD loadings from land application in
the 2003 CAFO rule. Runoff from land application areas contains BOD
from manure and process wastewaters, but it also contains BOD from
organic matter including background soil organic materials and crop
residues. In contrast to crop
[[Page 37769]]
residues, manure BOD is highly sensitive to moisture and aerobic
conditions, and quickly forms inorganic materials and nutrients after
land application, as evidenced by significant off-gassing (odor) as the
manure decomposes. (DCN 1-01230.) BOD deliveries to surface water are
also highly variable, but current literature suggests the timing of
land application in relation to future rainfall events is a key
parameter.
Since the 2003 CAFO rule, models including WAM (Watershed
Assessment Model) and WMM (Watershed Management Model) were developed
that have some watershed level BOD modeling capability (for example,
see ``TMDLs for Nutrient, DO, and BOD for Delaney Creek,'' March 2005,
DCN 1-01222). The data required for the WMM model include: Area of all
the land use categories and the area served by septic tanks; percent
impervious area for each land use category; event mean concentration of
runoff (EMC) for each pollutant type and land use category; percent EMC
of each pollutant type that is in suspended form; and annual
precipitation. The lack of data/literature to support estimation of
national BOD loadings from land applied manure is a significant issue.
EPA concludes the capability is still not available to model BOD
runoff.
The 2003 CAFO rule prohibits dry weather discharges from land
application areas, and the BPT land application requirements (including
technical standards for timing, form, and rate of application, as well
as the required vegetated buffer, setback, or equivalent practices)
already minimize discharges of BOD from land application areas.
However, the reductions in BOD in runoff from land application areas,
specifically the BOD attributable to manure and process wastewater, are
minimal in comparison to production area discharges of BOD. Therefore
EPA's load reductions for BOD include production area discharges
(overflows and runoff from manure storage), but do not include land
application. (See the TDD for discussion of EPA's modeling of overflows
from the production area and runoff from land application areas; also
see ``Loads Report'.) Table E.1 provides a summary of the costs and
pollutant reductions of the 2003 CAFO rule BPT.
Table E.1.--2003 CAFO Rule BPT Costs and Pollutant Removals
----------------------------------------------------------------------------------------------------------------
Annualized costs TSS removed Total pounds
Sector ($2001, millions, BOD removed (million pounds removed (million
pre tax) (million pounds) sediment) pounds)
----------------------------------------------------------------------------------------------------------------
Beef................................ 86 0 1201 1201
Dairy............................... 128 0 99 99
Swine............................... 25 0 113 113
Poultry............................. 41 6 181 187
----------------------------------------------------------------------------------------------------------------
Table E.2 provides incremental costs and incremental pollutant
removals of candidate technologies in relation to BPT. Incremental
costs are the costs of the technology option minus the BPT costs from
Table E.1. Incremental load reductions are the pounds removed by the
technology option minus the BPT load reductions from Table E.1. Total
incremental reductions include BOD and TSS. See Section D.1(c) of
today's preamble for additional discussion of pathogens (fecal
coliform) reductions.
Table E.2.--Incremental Costs and Conventional Pollutant Removals of Candidate Technologies
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized
cost of
candidate Incremental Incremental Incremental Total
technology costs BOD removed TSS removed incremental
Candidate technology Animal sector option ($2001, (million (million reductions
($2001, millions, pounds) pounds (million
millions, pre-tax) sediment) pounds)
pre-tax)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ground water Controls \1\...................... Beef.................................. 231 145 0 0 0
Dairy................................. 316 188 0 0 0
Swine................................. 61 36 0 0 0
No Discharge................................... Swine................................. 133 108 7 1 8
Composting..................................... Beef.................................. 1,367 1281 3 25 28
Dairy................................. 277 149 1 7 8
Poultry............................... 508 467 0 0 0
Anaerobic Digestion............................ Dairy................................. 505 377 2 9 11
Swine................................. 79 54 6 0 7
Land Application Timing Restrictions........... Beef.................................. 112 26 0 0 0
Dairy................................. 318 190 2 7 9
Swine................................. 37 12 7 1 8
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Only reduced discharges to surface waters via a hydrologic connection are included in this analysis.
The POTW upgrade cost is referred to as the POTW benchmark; its
derivation is described in the 1986 final BCT methodology notice (51 FR
24974). The upgrade cost to industry must be less than the POTW
benchmark of $0.25 per pound (in 1976 dollars) or $0.65 per pound (in
2001 dollars). Table E.3 provides the cost per pound of conventional
pollutants (BOD and TSS) removed by the candidate technology. (See the
Addendum to the TDD, DCN 1-10227 for additional information on the POTW
benchmark.)
[[Page 37770]]
Table E.3.--Cost Test Part One
[POTW test results]
----------------------------------------------------------------------------------------------------------------
Incremental cost
per pound removed
Candidate technology Animal sector by technology ($/ POTW test result
lb)
----------------------------------------------------------------------------------------------------------------
Ground water controls.............. Beef....................... \1\NC Fail.
Dairy...................... NC Fail.
Swine...................... NC Fail.
No discharge....................... Swine...................... 13.55 Fail.
Composting......................... Beef....................... 46.39 Fail.
Dairy...................... 17.84 Fail.
Poultry.................... NC Fail.
Anaerobic Digestion................ Dairy...................... 34.15 Fail.
Swine...................... 7.89 Fail.
Land Application Timing Beef....................... 366.65 Fail.
Restrictions.
Dairy...................... 20.90 Fail.
Swine...................... 1.55 Fail.
----------------------------------------------------------------------------------------------------------------
\1\ Values were not calculated because no additional pollutant reductions to surface waters were expected for
these options.
In all cases, the POTW benchmark is lower than the cost per pound
of conventional pollutants removed by the candidate technology. Since
the candidate technologies all fail the POTW cost test, the candidate
technologies are not cost-reasonable. EPA notes that even though a
candidate technology may be affordable for a subcategory, the candidate
technologies must be cost-reasonable to be considered as a basis for
setting BCT limitations.
EPA concludes that since all candidate technologies fail the POTW
test for each species evaluated, any technology option developed for
subcategories C or D utilizing a combination of these candidate
technologies also fails the POTW test. In addition, EPA believes the
results presented here for beef, dairy, swine, and poultry operations
are reasonably extrapolated to veal calf operations (which are
typically total confinement operations like swine) and heifer
operations (which use similar waste management technologies to beef
feedlots). EPA notes veal calf and heifer operations comprise
approximately two percent of all Large CAFOs. Once the candidate
technology fails the POTW test, the candidate technology fails the
cost-reasonableness test. The industry cost-effectiveness test (the
second test for determining cost reasonableness) is only relevant if
the POTW test (the first test) is passed. The following discussion of
the industry cost-effectiveness test is provided today for
completeness.
The second test that the candidate BCT technology must pass to be
considered cost-reasonable is the industry cost-effectiveness test. To
pass the industry cost test, EPA computes a ratio of two incremental
costs. The first incremental cost is the cost per pound removed by the
candidate technology relative to BPT. The second incremental cost is
the cost per pound removed by BPT relative to no treatment (i.e., raw
wasteload). As in the POTW test, the ratio of the first cost divided by
the second cost is compared to an industry cost benchmark. The industry
cost benchmark is the ratio of two incremental costs: The cost per
pound to upgrade a POTW from secondary treatment to advanced secondary
treatment is divided by the cost per pound to initially achieve
secondary treatment. If the industry ratio is lower than the benchmark,
then the candidate technology passes the cost test. The industry cost
benchmark is 1.29 (see 51 FR 24974; also see the Pulp and Paper Final
Rule Technical Development Document, EPA-821-R-97-011). Table E.4 shows
the ratio of the incremental costs for the candidate technology
options. (See Addendum to the TDD for additional information on the
cost ratio calculations.)
Table E.4.--Cost Test Part Two
[Industry cost-effectiveness test results]
----------------------------------------------------------------------------------------------------------------
Candidate
Candidate technology Animal sector technology cost Industry cost Industry cost test
ratio benchmark result
----------------------------------------------------------------------------------------------------------------
Ground water controls........ Beef................. NC 1.29 Fail.
Dairy................ NC 1.29 Fail.
Swine................ NC 1.29 Fail.
No discharge................. Swine................ 61.15 1.29 Fail.
Composting................... Beef................. 647.70 1.29 Fail.
Dairy................ 13.86 1.29 Fail.
Poultry.............. NC 1.29 Fail.
Anaerobic digestion.......... Dairy................ 26.52 1.29 Fail.
Swine................ 35.63 1.29 Fail.
Land Application Timing Beef................. 5,119.52 1.29 Fail.
Restrictions.
Dairy................ 16.23 1.29 Fail.
Swine................ 6.99 1.29 Fail.
----------------------------------------------------------------------------------------------------------------
[[Page 37771]]
In all cases, the candidate technology's cost ratio is higher than
the industry cost benchmark, and the technology would fail the second
test. EPA concludes that since all candidate technologies fail the
industry cost-effectiveness test for each species evaluated, any
technology option developed for subcategories C or D utilizing a
combination of these candidate technologies also fails the industry
cost test for similar reasons described above.
(c) How Is EPA Evaluating Pathogens in Its BCT Cost Reasonableness
Analysis?
As stated above, EPA establishes BCT effluent limitations for an
industrial category or subcategory by identifying technology options
that provide additional conventional pollutant control beyond that
provided by application of BPT technologies. EPA evaluates candidate
technologies by applying the two-part BCT cost test where one
requirement is that the cost per pound of conventional pollutant
removed in upgrading from BPT to the candidate BCT must be less than
the cost per pound of conventional pollutant removed in upgrading POTWs
from secondary treatment to advanced secondary treatment. The two
conventional pollutants used in calculating the POTW pollutant removal
benchmark are BOD and TSS.
For the candidate technology's cost comparison, the 1986 BCT
methodology describes the use of BOD and TSS, and also oil and grease
when appropriate in the context of the industry and technology being
evaluated. When the Agency promulgated the BCT methodology (including
descriptions of how to apply the cost test), fecal coliform and pH were
not included in the calculations because, unlike BOD and TSS, these
pollutants were not measurable as ``pounds removed.'' Section
304(b)(4)(B) authorizes EPA to consider other appropriate factors in
establishing BCT. The 1986 methodology envisioned the need for
adjustments to the BCT cost test methodology in future rulemakings to
account for lack of comparable data or other industry-specific factors.
(51 FR 24974, 24976 (July 9, 1986).) For CAFOs, where pathogen
reductions are a factor to be considered, including fecal coliform for
the determination of BCT cost reasonableness is an appropriate
application of such flexibility.
The Second Circuit directed EPA to make an affirmative finding that
the BCT-based ELGs adopted in the 2003 CAFO rule do in fact represent
the best conventional pollutant control technology for reducing
pathogens, specifically fecal coliform. Although fecal coliform is not
typically used in BCT cost calculations, in light of the Second
Circuit's direction and the flexibility inherent in the BCT
methodology, EPA developed procedures to evaluate cost-reasonableness
for fecal coliform removal for this industry. Therefore, today's
proposal includes an additional set of cost comparisons to directly
account for pathogens by specifically including fecal coliform, the
only conventional pollutant that is a possible pathogen. EPA thus adds
fecal coliform to the BCT determination, which is an appropriate
adjustment to the BCT methodology for the CAFO industry. The proposed
approach parallels the two-part cost-reasonableness test conducted
above for pounds of conventional pollutants, but here, pounds of
conventional pollutants is replaced by colony forming units (CFU) of
fecal coliform. Table E.5 presents the costs and fecal coliform (FC)
removals of the 2003 CAFO rule (BPT).
Table E.5.--2003 CAFO Rule BPT Costs and FC Removals
------------------------------------------------------------------------
Annualized costs
Sector ($2001, millions, FC removed
pre-tax) (million CFU)
------------------------------------------------------------------------
Beef.............................. 86 10.56 x 10\13\
Dairy............................. 128 0.97 x 10\13\
Swine............................. 25 0.42 x 10\13\
Poultry........................... 41 6.74 x 10\13\
------------------------------------------------------------------------
Table E.6 provides incremental costs and incremental fecal coliform
(FC) removals of candidate technologies in relation to BPT. In this
analysis, EPA has again evaluated the candidate technologies first on a
species-specific basis. These results may then be combined to form
candidate technology options that can be used to conduct the cost-
reasonableness test on a subcategory wide basis. Costs are the same as
those presented in Table E.2. Fecal coliform removals were determined
using the 2003 CAFO rule methodology as described above in section
E.3(a).
Table E.6.--Incremental Costs and FC Removals of Candidate Technologies
----------------------------------------------------------------------------------------------------------------
Incremental
annualized cost Incremental FC
Candidate technology Animal sector ($2001, millions, removed (million
pre-tax) CFU)
----------------------------------------------------------------------------------------------------------------
Ground water controls................... Beef............................ 145 \1\ ND
Dairy........................... 188 ND
Swine........................... 36 ND
No discharge............................ Swine........................... 108 7.4 x 10\13\
Composting.............................. Beef............................ 1281 250 x 10\13\
Dairy........................... 149 30.4 x 10\13\
Poultry......................... 467 0.460 x 10\13\
Anaerobic digestion..................... Dairy........................... 377 22.9 x 10\13\
Swine........................... 54 136 x 10\13\
Land Application Timing Restriction..... Beef............................ 26 0.560 x 10\13\
Dairy........................... 190 22.9 x 10\13\
[[Page 37772]]
Swine........................... 12 136 x 10\13\
----------------------------------------------------------------------------------------------------------------
\1\ Values were non-zero, but too small to report in the indicated units.
EPA needed to develop a new benchmark to use for this alternative
POTW part of the BCT cost test which reflects the cost to reduce fecal
coliform at a POTW. To do this, EPA first examined the costs of removal
of fecal coliform at secondary and advanced secondary plants. EPA
defined both secondary and advanced secondary plants in the same way as
in the 1986 BCT cost methodology. Secondary plants are assumed to be
activated sludge plants and advanced secondary plants are activated
sludge plants with polymer addition. EPA reviewed the POTW costs
presented in the July 9, 1986, Federal Register Notice, and confirmed
that the costs reflect both chlorination and biological treatment (see
51 FR 24982). Performance data show that the majority of fecal coliform
removal (90 to 98 percent) occurs during secondary treatment and is
accomplished through removal of the biosolids. Disinfection, such as
through chlorination or ultraviolet decomposition, is used as a
polishing step to reduce fecal coliform to below 200 CFU/100 mL. EPA
concludes that the POTW benchmark must reflect the cost of biological
treatment as well as a polishing step for disinfection.
Second, EPA evaluated the amount of fecal coliform removed at
POTWs. EPA evaluated reported influent and effluent fecal coliform data
reported by POTWs on their discharge monitoring reports (as assembled
in EPA's Permit Compliance System). EPA determined, however, that there
were insufficient influent data to develop a representative national
influent concentration for fecal coliform. Therefore, EPA used
reference data on typical domestic wastewater concentrations of fecal
coliform (Metcalf and Eddy, Wastewater Engineering: Treatment,
Disposal, and Reuse (1991 3d ed.), DCN 1-01002.) EPA notes that the
limited PCS influent data falls within the range of the domestic
wastewater reference data. (See DCN 1-01002.)
Final effluent fecal coliform concentration from POTWs with
secondary treatment was set at 200 CFU per 100 mL (Ambient Water
Quality Criteria for Bacteria, DCN 1-01004). EPA used data from EPA's
Permit Compliance System to evaluate national effluent concentrations
of fecal coliform from POTWs with advanced secondary treatment. The
data shows those POTWs with advanced secondary treatment generally
achieved fecal coliform effluent concentrations of 20 to 40 CFU/100 mL,
with a median effluent of 21 CFU per 100 mL. (See DCN 1-01005.)
Finally, EPA estimated the benchmark cost to remove a trillion CFU
per year for each of the five flow categories evaluated in the 1986 BCT
cost methodology, and weighted the costs by total POTW flow for the
category. The resulting incremental cost per trillion CFU removed was
$0.33 (2001). (See Addendum to the TDD for additional information on
the POTW benchmark calculations.) Table E.7 shows the POTW test results
using this fecal coliform POTW benchmark for conducting part one of the
cost-reasonableness test.
Table E.7.--Fecal Coliform Cost Test Part One
[POTW test results]
----------------------------------------------------------------------------------------------------------------
Cost per trillion
Candidate technology Animal sector CFU removed by POTW test result
technology
----------------------------------------------------------------------------------------------------------------
Ground water controls.............. Beef....................... \1\ NC1 Fail.
Dairy...................... NC Fail.
Swine...................... NC Fail.
No discharge....................... Swine...................... 1.46 Fail.
Composting......................... Beef....................... 0.51 Fail.
Dairy...................... 0.49 Fail.
Poultry.................... 101.44 Fail.
Anaerobic digestion................ Dairy...................... 1.64 Fail.
Swine...................... 0.04 Pass.
Land Application Timing Beef....................... 4.58 Fail.
Restrictions.
Dairy...................... 0.83 Fail.
Swine...................... 0.01 Pass.
----------------------------------------------------------------------------------------------------------------
\1\ NC means not calculated.
For most sectors, the alternate POTW benchmark is lower than the
cost per CFU removed by the candidate technology. In these cases, the
candidate technologies fail the POTW test for fecal coliform. The
remaining candidate technologies are assumed to pass the POTW test and
move on to the second cost test.
The second test that the candidate BCT technology must pass to be
considered cost-reasonable is the industry cost-effectiveness test. As
described previously, to pass the industry cost test, EPA computes a
ratio of two incremental costs. In the alternative cost test, the fecal
coliform reductions are used in lieu of pounds of TSS and BOD. The
first incremental cost is therefore the cost per trillion CFU removed
by the candidate technology relative to BPT. This is divided by the
cost per trillion CFU removed by BPT relative to no treatment (i.e.,
raw
[[Page 37773]]
wasteload). The industry cost benchmark is the ratio of two incremental
costs: The cost per trillion CFU to upgrade a POTW from secondary
treatment to advanced secondary treatment over the cost per trillion
CFU to initially achieve secondary treatment. If the industry ratio is
lower than the benchmark, then the candidate technology passes the cost
test. The industry cost benchmark is 0.04. Table E.8 shows the ratio of
the incremental costs for the candidate technology options and the
results of the second test. (See Addendum to the TDD for detailed
calculations of the industry cost benchmark.)
Table E.8.--Cost Test Part Two
[Industry cost-effectiveness test results for the fecal coliform cost test]
----------------------------------------------------------------------------------------------------------------
Candidate
Candidate technology Animal sector technology cost Industry cost Industry cost test
ratio benchmark result
----------------------------------------------------------------------------------------------------------------
Anaerobic digestion.......... Swine................ 6.63 0.04 Fail.
Land Application Timing Swine................ 1.48 0.04 Fail.
Restrictions.
----------------------------------------------------------------------------------------------------------------
In both cases, the industry cost ratio is higher than the
benchmark. Therefore, none of the candidate technologies pass the
industry cost-effectiveness test. Since all candidate technologies fail
the BCT cost test for each species evaluated, any technology option
developed for subcategories C or D utilizing a combination of these
candidate technologies also fails the cost test. EPA notes the
reductions in fecal coliform achieved by the candidate technologies
(i.e., greater than 99 percent fecal coliform removal in the case of
digesters and composting) represent the upper bound attainable by any
technology. Finally, EPA's record shows all candidate technologies
would fail the second test even under EPA's sensitivity analyses that
assume considerable cost-offsets and cost-sharing. (See Addendum to TDD
for additional information on the sensitivity analysis for cost-
offsets. EPA solicits comment on all of these data and analyses.)
(d) What BCT Limitations Are Proposed Today?
EPA found that the primary sources of discharges from CAFOs were
production area overflows due to inadequate operation and maintenance
of the infrastructure for containing and transporting liquid manure and
wastewater, and discharges from the application area due to
agriculturally improper application of manure, litter, and process
wastewater. EPA previously concluded that the BPT standards requiring
operation, maintenance, and record-keeping BMPs along with no discharge
from the production area, and land application BMPs that require
appropriate agricultural utilization of manure, litter, and process
wastewater, significantly reduce water pollutant discharges, including
pathogen loads.
The technologies already evaluated by EPA generally show high
removals (99 percent) of conventional pollutants. In order to pass the
cost-reasonableness test, EPA believes any additional candidate
technologies would need to show similar pollutant removals and
significantly lower costs. EPA is also aware of technologies that may,
on a site-specific basis, be used to provide further reductions of
conventional pollutants. However, EPA's record shows these other
technologies are not available engineering alternatives for most CAFOs,
and they are therefore not technologically feasible candidates. (See
Chapter 8 of the TDD and the docket accompanying today's proposal for
descriptions of these additional technologies.) EPA further assumes
variations of the technologies evaluated today (for example, plug-flow
or complete mix anaerobic digesters versus activated sludge systems)
will have comparable or higher costs and comparable pollutant
reductions. Therefore, EPA concludes that variations of the candidate
technologies evaluated today will not pass the cost-reasonableness
test. EPA solicits comment on these findings.
In summary, EPA identified several candidate technologies that can
potentially achieve greater removals of conventional pollutants than
the BPT standards. EPA evaluated these candidate technologies by
conducting the two-part cost reasonableness test. If any candidate
technologies are feasible and pass both the POTW and the industry cost
test, then the most stringent technology option among them becomes the
basis for setting BCT effluent limitations. Alternatively, if no
candidate technology more stringent than BPT passes, then BCT effluent
limitations are set equal to BPT effluent limitations. Today EPA finds
that all candidate technologies fail the cost-reasonableness test. EPA
also finds that all candidate technologies fail the alternative cost-
reasonableness test that is based on fecal coliform. Accordingly, EPA
proposes BCT effluent limitations equal to the 2003 CAFO rule BPT
limitations, and affirms that the 2003 CAFO rule BPT limitations do in
fact represent the best conventional pollutant control technology. EPA
solicits comment on all aspects of the cost-reasonableness analysis and
the alternative cost test presented today.
IV. Impact Analysis
A. Environmental Impacts
When EPA issued the revised CAFO regulations on February 12, 2003,
it estimated annual pollutant reductions for the rule at 56 million
pounds of phosphorus, 110 million pounds of nitrogen, and two billion
pounds of sediment. The new proposed rule will retain these
environmental benefits since the technical requirements for facilities
that discharge are not affected and all facilities will still need to
control nutrient releases from the production and land application
areas. The overall magnitude of the benefits will increase over 2003
due to growth in the industry, but the analysis for today's proposed
rule does not recalculate these effects since the increase is not due
to changes in the CAFO regulations.
The premise that environmental benefits are retained is based in
large part on the assumption that facilities that do not apply for
permits will, in fact, not discharge and will still manage wastewater,
manure and litter appropriately at both production and land application
areas. The preamble for the proposed rule makes clear that, although it
is not necessary for a CAFO to be covered by an NPDES permit in order
to qualify for the agricultural storm water exemption, it is the
Agency's view that if a facility wants to claim that precipitation-
related discharges from land-application areas are agricultural storm
water runoff, the CAFO should be land-applying at agronomic rates that
correspond to the requirements in 40 CFR 122.42(e)(1)(vi)-(ix) for land
application.
[[Page 37774]]
The premise that benefits are retained is also based on the
conventional modeling assumption of ``full compliance,'' which in this
case involves assuming that all facilities that discharge will seek
permit coverage. EPA is aware that the permitting history of CAFOs to
date could be viewed as calling into question the validity of this
assumption. At the time of the 2003 CAFO rule, current estimates
indicated that only 4,000 CAFOs were permitted out of a total universe
of approximately 13,000 CAFOs potentially covered under the pre-2003
CAFO regulations. (See the Technical Development Document for the 2003
rule, Chapter 9.) This difference was driven by two key factors. First,
many operations claimed the 25-year, 24-hour storm exemption available
under the old regulations. Second, many authorized States were at that
point still developing their NPDES CAFO programs and were using a
variety of mechanisms to control discharges from CAFOs.
The ongoing reporting on NPDES CAFO permitting completed by EPA
since passage of the 2003 rule continues to augment information on
CAFOs, and indicates that the number of permitted CAFOs is growing.
Currently, EPA estimates that approximately 8,500 CAFOs are covered by
NPDES permits. EPA plans to continue to work to ensure full NPDES
coverage for discharging CAFOs by expanding its partnership with
industry stakeholders.
EPA seeks comment on its assumptions regarding the benefits of the
rule (no change from the 2003 rule).
B. Administrative Burden Impacts
Since there is no change in technical requirements, changes in
impacts on respondents are estimated to result exclusively from changes
in the information collection burden. To determine the administrative
burden for the Paperwork Reduction Act (PRA) analysis for today's
proposed rule, the Agency examined the two key permitting changes
resulting from the Waterkeeper decision and how they would be
implemented under the proposal. These two permitting features are the
change in the duty to apply for CAFOs and the change to the NMP-related
provisions for CAFO permits.
The 2003 CAFO rule had a universal duty to apply requirement which
required virtually all CAFOs to obtain NPDES permit coverage. The
supporting analysis for the rule estimated that as a result of this
requirement, approximately 15,500 CAFOs would ultimately receive NPDES
permits. (See the Technical Development Document for the 2003 rule,
Chapter 9.) Today's proposed rule changes the duty to apply requirement
so that only CAFOs that discharge or propose to discharge would need to
seek NPDES coverage. To derive the number of CAFOs that could
ultimately fall into this category, EPA first estimated industry size
for 2005 by projecting industry growth from the 2003 estimates using
both USDA 2002 Census of Agriculture statistics as well as Agency-based
sector expertise. This exercise yielded an estimate of approximately
18,800 total CAFOs for 2005. EPA then combined the 2005 projections for
each animal sector with information on standardized operational
profiles to anticipate the numbers of facilities as of 2005 that might
experience discharges. For example, when inclement weather precludes
land application or dewatering activities, open lot type facilities,
such as beef lots and dairy operations, are more likely to experience
conditions that could result in a discharge due to the use of open on-
site lagoons common at many of these facilities. Additionally, EPA
assumed that all dairies generate wastewater from the production area
and generally have uncovered on-site lagoons. Thus, for purposes of
burden estimates, EPA assumed that all dairies and most beef feedlots
would apply for permits.
Even though the industry grew to roughly 18,800 CAFOs from 2002 to
2005 (an aggregate growth factor of approximately 22% due to industry
expansion and the trend toward larger, more concentrated facilities),
the change in the duty to apply requirement is anticipated to reduce
the number of facilities needing permit coverage to approximately
14,000 CAFOs. Based on these updated figures, EPA estimates that
approximately 25 percent fewer CAFOs would ultimately receive permits
under today's proposed rule than under the requirements of the 2003
rule. These projections are discussed in more detail in documentation
available in the public record for today's proposal.
These figures may overestimate CAFO NPDES permits in that they make
conservative categorical assumptions about the likelihood of a
discharge based on broad operational profiles and do not account for
more subtle stratifications within specific operational categories. For
instance, although most dairies generate washwater from the production
area and have on-site lagoons, there do, in fact, exist dairies
designed to be zero-discharge operations.
Using the CAFO universe numbers discussed above, EPA projects that
CAFO operators will experience an aggregate administrative burden
reduction of nearly $15.5 million annually as a result of the court
decision to vacate the duty to apply requirement since fewer facilities
will need to apply and submit the paperwork for NPDES permits.
Similarly, permit authorities (``State respondents'') will experience a
roughly $5.2 million reduction in administrative burden due to the
court decision to vacate the duty to apply requirement.
In contrast, the administrative burden impacts from the NMP-related
changes made in response to the court ruling go up. EPA is revising the
permitting process for both individual and general permits to ensure
that CAFOs seeking permits submit their NMPs with their permit
application. (NMPs were already required for all CAFOs under the 2003
rule.) EPA projects that facilities collectively would only experience
a minimal increase in administrative burden--nearly $111,000 for all
facilities annually--as a consequence of this change. However, State
permitting authorities would face a $5.7 million annual increase in
administrative burden as a result of the significant effort needed to
review the NMPs for each permittee, arrange for public review and
conduct public hearings if requested, respond to comments, and
incorporate the terms of the NMP into the NPDES CAFO permit. For permit
authorities, these costs would more than offset the burden reduction
from the change in the duty to apply and the resulting decline in the
number of CAFO permits.
Table 1 below summarizes the administrative burden changes expected
to occur as a result of the proposed rule. Baseline A presents the
costs to facilities and permitting authorities of implementing the 2003
CAFO rule as described above. In addition, Table 1 provides an
illustration in Baseline B of the administrative burden costs in the
absence of EPA's proposed rule. The permit processing burden (``duty to
apply'') for State permitting authorities in this scenario would
increase rather than decrease due to a lack of clarity on the
appropriate permitting processes for implementing the court ruling.
Specifically, under this baseline, EPA assumes that States would not be
able to realize time savings from the use of general permits for CAFOs
because of the Court's directive that CAFO permits include facility-
specific terms of the CAFO's NMP. EPA instead used burden estimates
associated with the individual permit process when costing the burden
for CAFO permits under Baseline B. The proposed rule provides a
mechanism for States to realize some time savings through the use of
general permits while
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still complying with the Court's directive.
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Overall, under Baseline A as previously described, the
administrative burden under the proposed rule (i.e., the difference
between Baseline A and the proposed costs of the proposal) is projected
to decline to a total of approximately $64 million, which constitutes a
reduction of roughly $15 million compared to the 2003 CAFO rule. This
burden impact estimate accounts both for growth in the industry and
changes in labor rates since the 2003 rule was issued. In addition, the
changes are based on annualized impacts, and assume a permit term of
five years as stipulated in the Clean Water Act. More documentation on
the administrative burden impacts is available in the public record for
today's proposal in the supporting documents for the Paperwork
Reduction Act analysis.
V. Cross Media Approaches
Since 2003, EPA and some stakeholders have been interested in
developing a framework to enable CAFOs to pursue superior environmental
performance across all media. We are aware that today some CAFOs
voluntarily conduct whole-farm audits to evaluate releases of
pollutants to all media through Environmental Management Systems, self-
assessment tools, EPA's performance track, ISO 14001 certification, and
state-approved trade offs in reducing discharges to water and emissions
to air that accomplish the best overall level of protection given state
and local conditions. EPA continues to believe that the development of
new and emerging technologies offers the potential to achieve
equivalent or greater pollutant reductions relative to those achieved
by the effluent guidelines and standards. Many of these are superior
from a cross media perspective, and EPA would like to encourage
superior cross media solutions. These regulations regarding nutrient
management plans may provide a unique opportunity for EPA to encourage
cross media approaches at CAFOs. For example, the nutrient value in the
animal byproducts provides a valuable source of fertilizer for crops.
However, inappropriate application can lead to preventable discharges
to water and emissions to air. Optimal application technologies and
rates reduce potential water quality and air quality standards
violations.
EPA would like to take comment on the feasibility (including
consideration of legal, technical, and implementation issues) of
allowing flexibility in how facilities can meet various programmatic
requirements, for instance those of the Clean Air Act and the Clean
Water Act, in order to achieve greater cross-media pollutant
reductions. We are interested in exploring this type of approach for
both existing and new CAFOs.
EPA continues to believe the development of new and emerging
technologies offers the potential to match or surpass the pollutant
reductions achieved by today's effluent guidelines and standards. EPA
does not want to discourage approaches that are superior from a cross
media perspective. Some CAFOs today voluntarily conduct whole-farm
audits to evaluate releases of pollutants to all media. EPA plans to
consider future opportunities and incentives for CAFOs to participate
in such activities. We are not currently proposing such an approach
through this action. The development of any such approach would proceed
through future notice and comment rulemaking.
VI. Statutory and Executive Order Reviews
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 Office of Management and Budget (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;
[[Page 37776]]
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.
Pursuant to the terms of Executive Order 12866, OMB has notified
EPA that it considers this a ``significant regulatory action'' within
the meaning of the Executive Order. EPA has submitted this action to
OMB for review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
B. 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. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 1989.03.
Under the 2003 rule, all CAFOs were required to apply for a permit
and develop and implement a nutrient management plan. Today's proposed
rule would reduce the universe of CAFOs that are subject to these
requirements specifically to those CAFOs that discharge or propose to
discharge.
Overall, the administrative burden under the proposed rule is
projected to decline to a total of approximately $64 million, which
constitutes a reduction of approximately $15 million compared to the
2003 CAFO rule. The overall labor burden decreases by 777,366 hours.
Much of this burden reduction arises from the reduced burden to
facility respondents--i.e., those CAFOs subject to permitting. EPA
estimates that these operations will experience an aggregate
administrative burden reduction of nearly $15.5 million annually
(810,751 labor hours) as a result of the portion of the court decision
that vacates the duty to apply requirement since fewer facilities will
need to apply and submit the paperwork for NPDES permits. However,
State permitting authorities would face an increase in administrative
burden as a result of the significant effort needed to review the NMPs
for each permittee, arrange for public review and conduct public
hearings if requested, respond to comments, and incorporate the terms
of the NMP into the NPDES CAFO permit. This increase in burden to
States offsets the burden reduction experienced by CAFOs, and is
explained in more detail in Section IV of the impact analysis for
today's proposal.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a federal agency. This includes 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.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR Part 9.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, including the use of automated collection
techniques, EPA has established a public docket for this rule, which
includes this ICR, under Docket ID number EPA-HQ-OW-2005-0037. Submit
any comments related to the ICR for this proposed rule to EPA and OMB.
See ADRESSES section at the beginning of this notice for where to
submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after June 30, 2006, a comment to OMB is best
assured of having its full effect if OMB receives it by July 31, 2006.
The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of 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. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration (SBA) at 13 CFR 121.201
size standards; (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.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
adverse economic impact on a substantial number of small entities since
the proposed rule involves a net burden reduction compared to the
burden placed on facilities under the 2003 CAFO rule. Additionally,
this proposed rule would not affect small governments as the permitting
authorities are State or federal agencies. We continue to be interested
in the potential impacts of the proposed rule on small entities and
welcome comments on issues related to such impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 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
[[Page 37777]]
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 this proposed rule would not contain a
federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. The proposed rule would increase the
burden to the States by $502,000 (30,300 hours) annually, which
reflects the fact that although States will need to process fewer
permits, the effort associated with each permit is greater. The
proposed rule would also decrease the burden to CAFO respondents by
nearly $15.4 million (807,659 hours) annually due to the smaller number
of facilities that will need permits. In total, EPA estimates a net
reduction of $15 million annually (777,366 hours) in the information
collection burden as a result of the proposed rule. Thus, today's
proposed rule is not subject to the requirements of sections 202 and
205 of the UMRA. For the same reason, EPA has determined that this rule
contains no regulatory requirements that might significantly or
uniquely affect small governments. Thus, today's proposed rule is not
subject to the requirements of section 203 of UMRA.
E. 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.''
Under section 6(b) of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. Under section 6(c) of Executive
Order 13132, EPA may not issue a regulation that has federalism
implications and that preempts State law, unless the Agency consults
with State and local officials early in the process of developing the
proposed regulation.
EPA has concluded that this proposed rule does not have federalism
implications. It will not 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, as specified in Executive Order 13132.
EPA estimates that the average annual impact on all authorized States
together is $502,000. EPA does not consider an annual impact of this
magnitude on States to be 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.
Consistent with EPA policy, EPA nonetheless consulted with
representatives of State governments early in the process of developing
the proposed regulation to permit them to have meaningful and timely
input into its development. Through a variety of meetings with State
associations, States have been apprized of the issues related to
addressing the court's decisions. States provided input during these
meetings. State concerns generally focused on the process for
incorporating NMPs into permits and the related public review process,
and also on guidance related to what is a discharge from a CAFO given
that the proposal would now require only those operations that have a
discharge to apply for a permit. These concerns have been addressed in
detail in this proposal in such a way as to build in flexibility, yet
accountability, for the new permit application requirements and review
processes proposed herein today.
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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled, ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the federal government and Indian tribes, or on
the distribution of power and responsibilities between the federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.
In the spirit of Executive Order 13175, and consistent with EPA
policy to promote communications between EPA and tribal governments,
EPA specifically solicits additional comment on this proposed rule from
tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (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 or
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 regulation is not subject to Executive Order 13045 because it
is not economically significant as defined under E.O. 12866, and
because the Agency does not have reason to believe
[[Page 37778]]
the environmental health and safety risks addressed by this action
present a disproportionate risk to children. The benefits analysis
performed for the 2003 CAFO rule determined that the rule would result
in certain significant benefits to children's health. (Please refer to
the Benefits Analysis in the record for the 2003 CAFO final rule.)
Today's action does not affect the environmental benefits of the rule.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it
is not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. 104-113, Section 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 OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
Today's proposal does involve the use of technical standards for
land application of manure and elimination of discharges from the
production area. However, the specific standards applicable to a
specific operator are generally determined by the permitting authority
on a State-wide or site-specific BPJ basis. EPA encourages the use by
permitting authorities of voluntary consensus standards, such as those
developed by USDA, in establishing the site-specific technical
requirements in CAFO permits.
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OMB No. 2040-0250
List of Subjects
40 CFR Part 122
Administrative practice and procedure, Hazardous substances,
Reporting and recordkeeping requirements, Water pollution control.
40 CFR Part 412
Feedlots, Livestock, Waste treatment and disposal, Water pollution
control.
Dated: June 22, 2006.
Stephen L. Johnson,
Administrator.
For the reasons set out in the preamble, chapter I of title 40 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. Section 122.21 is amended by revising the last sentence in
paragraph (a)(1), and revising paragraph (i)(1)(x), to read as follows:
Sec. 122.21 Application for a permit (applicable to State programs,
see Sec. 123.25).
(a) * * *
(1) * * * The requirements for concentrated animal feeding
operations to seek coverage under an NPDES permit are described in
Sec. 122.23(d).
* * * * *
(i) * * *
(1) * * *
(x) A nutrient management plan that at a minimum satisfies the
requirements specified in Sec. 122.42(e)(1). In addition, the nutrient
management plan for all CAFOs subject to 40 CFR part 412, subpart C or
subpart D, must satisfy the applicable requirements of 40 CFR 412.4(c).
* * * * *
3. Section 122.23 is amended by revising paragraphs (a), (d)(1),
(d)(2), (f), and (g) and by removing paragraph (h) to read as follows:
Sec. 122.23 Concentrated animal feeding operations (applicable to
State NPDES programs, see Sec. 123.25).
(a) Permit requirement for CAFOs. Concentrated animal feeding
operations, as defined in paragraph (b) of this section, are point
sources. Once an operation is defined as a CAFO, the NPDES requirements
for CAFOs that discharge or propose to discharge pollutants apply with
respect to all animals in confinement at the operation and all manure,
litter and process wastewater generated by those animals or the
production of those animals, regardless of the type of animal.
* * * * *
(d) * * *
(1) All owners or operators of a CAFO that discharges or proposes
to discharge pollutants must apply for a permit. All owners or
operators of a CAFO that discharges or proposes to discharge pollutants
must seek coverage under an NPDES permit. Specifically, the CAFO owner
or operator must either apply for an individual NPDES permit or submit
a notice of intent for coverage under an NPDES general permit. If the
Director has not made a general permit available to the CAFO, the CAFO
owner or operator must submit an application for an individual permit
to the Director.
(2) Information to submit with permit application. A permit
application for an individual permit must include the information
specified in Sec. 122.21. A notice of intent for a general permit must
include the information specified in Sec. Sec. 122.21 and 122.28.
* * * * *
(f) When must the owner or operator of a CAFO seek coverage under
an NPDES permit? (1) Operations defined or designated as CAFOs as of
[the effective date of the final rule]. The owner or operator of a CAFO
that discharges or proposes to discharge pollutants must seek to obtain
coverage under an NPDES permit by a date specified by the Director, but
no later than July 31, 2007.
(2) Operations that become defined as CAFOs after [the effective
date of the final rule], but which are not new sources. For newly
constructed AFOs that discharge or propose to discharge pollutants and
AFOs that make changes to their operations that result in becoming
defined as CAFOs for the first time, after [the effective date of the
final rule], but are not new sources and that discharge or propose to
discharge pollutants, the owner or operator must seek to obtain
coverage under an NPDES permit, as follows:
[[Page 37785]]
(i) For newly constructed operations not subject to effluent
limitations guidelines, 180 days prior to the time CAFO commences
operation; or
(ii) For other operations (e.g., resulting from an increase in the
number of animals), as soon as possible, but no later than 90 days
after becoming defined as a CAFO.
(3) New sources. The owner or operator of a new source that
discharges or proposes to discharge pollutants must seek to obtain
coverage under a permit at least 180 days prior to the time that the
CAFO commences operation.
(4) Operations that are designated as CAFOs after [the effective
date of the final rule]. For operations designated as a CAFO in
accordance with paragraph (c) of this section, the owner or operator
must seek to obtain coverage under a permit no later than 90 days after
receiving notice of the designation.
(g) Duty to Maintain Permit Coverage. No later than 180 days before
the expiration of the permit, or as provided by the Director, the
permittee must submit an application to renew its permit, in accordance
with Sec. 122.21(d), unless permit coverage has been terminated
consistent with Sec. 122.64(b).
4. Section 122.28 is amended by adding a sentence before the last
sentence of paragraph (b)(2)(iv), and by adding paragraph (d), to read
as follows:
Sec. 122.28 General permits (applicable to State NPDES programs, see
Sec. 123.25).
* * * * *
(b) * * *
(2) * * *
(iv) * * * Except that CAFO owner or operators seeking coverage
under a general permit must undertake the process described in
paragraph (d) of this section. * * *
* * * * *
(d) Concentrated animal feeding operations. (1) The Director must
review notices of intent submitted by CAFO owners or operators to
ensure that the information meets the requirements of Sec. Sec.
122.21(i)(1) and 122.42(e)(1) and to identify the terms of the nutrient
management plan to be incorporated into the permit. When additional
information is necessary to complete the notice of intent or clarify,
modify, or supplement previously submitted material, the Director may
request such information from the owner or operator. If the Director
tentatively decides that the notice of intent meets the requirements of
Sec. Sec. 122.21(i)(1) and 122.42(e)(1), the Director must notify the
public of its receipt and make it available for public review and
comment along with the identified terms of the nutrient management plan
to be incorporated into the permit. The Director must specify by
regulation or in the permit an appropriate period of time for the
public to comment and request a hearing on the information submitted
and the terms of the facility's nutrient management plan to be
incorporated into the permit. The hearing and public comment process
must follow the procedures for draft permits set forth in 40 CFR 124.11
through 124.13. The Director must respond to all significant comments
received during the comment period, and, as appropriate, require the
CAFO owner or operator to revise the terms of the nutrient management
plan to be incorporated into the permit. When the Director grants
permit coverage to the CAFO owner or operator, the draft terms of the
nutrient management plan, as revised by the Director, shall become
incorporated as terms and conditions of the permit. The Director must
notify the owner or operator of the terms and conditions that are
incorporated into the permit.
(2) For EPA-issued permits only. Upon incorporation of the terms of
the nutrient management plan into the general permit, any person who
submitted comments or participated in the public hearing and who
objects to the incorporation of the terms of the nutrient management
plan into the permit may appeal the permit decision in accordance with
the procedures of 40 CFR 124.19.
(3) Nothing in this paragraph (d) shall affect the authority of the
Director to require an individual permit under paragraph (b)(3) of this
section.
5. Section 122.42 is amended by revising paragraphs (e)
introductory text and (e)(1) introductory text, and by adding paragraph
(e)(5), to read as follows:
Sec. 122.42 Additional conditions applicable to specified categories
of NPDES permits (applicable to State NPDES programs, see Sec.
123.25).
* * * * *
(e) Concentrated animal feeding operations (CAFOs). Any permit
issued to a CAFO must include the requirements in paragraphs (e)(1)
through (e)(4) of this section:
(1) Requirements of a nutrient management plan. Any permit issued
to a CAFO must include and require the CAFO owner or operator to
implement the terms of the most current version of a facility-specific
nutrient management plan submitted in accordance with 40 CFR 122.21(i)
that meets the requirements of this paragraph and the applicable
effluent limitations and standards of 40 CFR 412.4(c). At a minimum, a
nutrient management plan must include best management practices and
procedures necessary to implement applicable effluent limitations and
standards, including, for CAFOs subject to 40 CFR part 412, subpart C
or subpart D, the limitations and standards specified in 40 CFR
412.4(c). The nutrient management plan must, to the extent applicable:
* * * * *
(5) Changes to a CAFO Nutrient Management Plan. (i) When a CAFO
owner or operator changes a CAFO's nutrient management plan, the CAFO
owner or operator must provide the permitting authority with the most
current version of the CAFO's nutrient management plan and identify
changes from the previous version. The Director must review the
submitted information to ensure that it meets the requirements of 40
CFR 122.42(e)(1) and 40 CFR 412.4(c) of this chapter and decide whether
to allow any changes to the terms of the nutrient management plan that
have been incorporated into a permit issued to the CAFO. If the
Director determines that the changes to the nutrient management plan
are not substantial, the Director must include the revised NMP in the
permit record and make any necessary revisions to the terms of the
nutrient management plan incorporated into the permit. If the Director
determines that the changes to the nutrient management plan are
substantial, the Director must modify the permit to incorporate such
changes in accordance with the procedures identified in paragraph
(e)(5)(ii) of this section. The Director must notify the public of any
changes to the terms of the nutrient management plan that are
incorporated into the permit.
(ii) If the Director determines that the changes to the nutrient
management plan are substantial, the Director must notify the public of
the substantial changes; identify those changes to the terms of the
nutrient management plan proposed to be incorporated into the permit;
and make the proposed changes and the information submitted by the CAFO
owner or operator available for public review and comment. The Director
must specify by regulation or in the permit an appropriate period of
time for the public to comment and request a hearing on the information
submitted and the revised terms of the facility's nutrient management
plan to be incorporated into the permit. The hearing and public comment
process must follow the procedures for draft permits set forth in 40
CFR 124.11 through 124.13. The Director must respond to all significant
comments received during the comment period,
[[Page 37786]]
and, as appropriate, require the CAFO owner or operator to further
revise the terms of the nutrient management plan to be incorporated
into the permit. Once the Director incorporates the revised terms of
the nutrient management plan into the permit, the Director must notify
the owner or operator of the revised terms and conditions of the
permit.
(iii) For EPA-issued permits only. Upon incorporation of the
revised terms of the nutrient management plan into the permit, any
person who submitted comments or participated in the public hearing and
who objects to the incorporation of the revised terms of the nutrient
management plan into the permit may appeal the permit decision in
accordance with the procedures of 40 CFR 124.19.
(iv) Substantial changes to a nutrient management plan include, but
are not limited to: changes that could result in an increase in runoff
of manure, litter, or process wastewater from the facility that would
otherwise not occur under the terms of the nutrient management plan
that were incorporated into the permit; an increase in the rate of
nutrients from manure, litter, or process wastewater applied to the
land application area that is significant in relation to the technical
standards established by the Director; a significant change in the
nutrient balance at the CAFO caused by an increase in the ratio of
animals or manure, litter, or process wastewater to the available land
application acreage or storage capacity; changes in the CAFO's methods
for handling, storage, treatment, or land application of manure,
litter, or process wastewater; a significant increase in the number of
animals; or a significant reduction of manure, litter, or process
wastewater transferred to other persons when there is no equivalent
decrease in the amount of manure, litter, or process wastewater
produced; and the addition of land application areas not previously
included in the nutrient management plan.
(v) Upon request by a CAFO owner or operator to implement
substantial changes to the nutrient management plan, the Director may
allow an owner or operator to implement such changes before completion
of the public notification procedures identified in paragraph
(e)(5)(ii) of this section for no more than 180 days if the Director
determines that the changes to a nutrient management plan will not
result in increased runoff of manure, litter, or process wastewater
from the CAFO. The Director must append such changes to the CAFO's
permit and make them publicly available so that other persons have
access to such information. Appropriate notice to the public of such
expedited decisions must take place within 14 days of the effective
date.
6. Section 122.62 is amended by adding paragraph (a)(17) to read as
follows:
Sec. 122.62 Modification or revocation and reissuance of permits
(applicable to State programs, see Sec. 122.25).
* * * * *
(a) * * *
(17) Nutrient Management Plans. The incorporation of the terms of a
CAFO nutrient management plan into the terms and conditions of a
general permit when a CAFO obtains coverage under a general permit in
accordance with Sec. 122.28(d)(1) is not a cause for modification
pursuant to the requirements of this section.
* * * * *
7. Section 122.63 is amended by adding paragraph (h) to read as
follows:
Sec. 122.63 Minor modification of permits.
* * * * *
(h) Incorporate changes to the terms of a CAFO's nutrient
management plan that have been revised in accordance with the
requirements of Sec. 122.42(e)(5).
PART 412--CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFO) POINT
SOURCE CATEGORY
8. The authority citation for part 412 continues to read as
follows:
Authority: 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, 1361.
9. Section 412.2 is amended by revising paragraph (i) to read as
follows:
Sec. 412.2 General definitions.
* * * * *
(i) 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.
* * * * *
10. Section 412.37 is amended by revising paragraph (a)(2) to read
as follows:
Sec. 412.37 Additional measures.
(a) * * *
(2) Depth marker. All open surface liquid impoundments must have a
depth marker which clearly indicates the minimum capacity necessary to
contain the runoff and direct precipitation of the 25-year, 24-hour
rainfall event.
* * * * *
11. Section 412.46 is amended by revising paragraphs (a)(1), (a)(2)
and (d) to read as follows:
Sec. 412.46 New source performance standards (NSPS).
* * * * *
(a) * * *
(1) Any CAFO subject to this subpart may request that the Director
establish NPDES permit best management practice effluent limitations
designed to ensure no discharge of manure, litter or process wastewater
based upon a site-specific evaluation of the CAFO's open surface manure
storage structure. In the case of any CAFO using an open surface manure
storage structure for which the Director establishes such effluent
limitations, ``no discharge of manure, litter, or process wastewater
pollutants,'' as used in this section, means that the storage structure
is designed, operated and maintained in accordance with best management
practices established by the Director on a site-specific basis after a
technical evaluation of the storage structure. The technical evaluation
must include the following elements:
(i) Information to be used in the design of an open manure storage
structure including but not limited to minimum storage periods for
rainy seasons, additional minimum capacity for chronic rainfalls,
applicable technical standards that prohibit or otherwise limit land
application to frozen, saturated, or snow-covered ground, planned
emptying and dewatering schedules consistent with the CAFO's Nutrient
Management Plan, adequate storage capacity for manure intended to be
transferred to another recipient at a later time, and any other factors
that would impact the sizing of the open manure storage structure.
(ii) The design of the open manure storage structure as determined
by the most recent version of the National Resource Conservation
Service's Animal Waste Management (AWM) software. CAFOs may use
equivalent design software or procedures as approved by the Director.
(iii) All inputs used in the open manure storage structure design
including actual climate data for the previous 30 years consisting of
historical average monthly precipitation and evaporation values, the
number and types of animals, anticipated animal sizes or weights, any
added water and bedding, any other process wastewater, and the size and
condition of outside areas exposed to rainfall and
[[Page 37787]]
contributing runoff to the open manure storage structure.
(iv) The planned minimum period of storage in months. Alternatively
the CAFO may indicate months when the storage pond will be emptied
consistent with the CAFO's Nutrient Management Plan.
(v) Site-specific predicted design specifications including
dimensions of the storage facility, daily manure and wastewater
additions, the size and characteristics of the land application areas,
and the total calculated storage period in months.
(vi) An evaluation of the adequacy of the designed manure storage
structure using the most recent version of the Soil Plant Air Water
(SPAW) Hydrology Tool. The evaluation must include all inputs to SPAW
including but not limited to daily precipitation, temperature, and
evaporation data for the previous 100 years, user-specified soil
profiles representative of the CAFO's land application areas, planned
crop rotations consistent with the CAFO's Nutrient Management Plan, and
the final modeled result of no overflows from the designed open manure
storage structure. CAFOs may use equivalent evaluation procedures as
approved by the Director.
(vii) Waste management and storage facilities designed,
constructed, operated, and maintained consistent with the site-specific
analysis conducted in paragraphs (a)(1)(i) through (a)(1)(vi) of this
section and operated in accordance with the additional measures and
records required by Sec. 412.47(a) and (b), will fulfill the
requirements of this section.
(2) The production area must be operated in accordance with the
additional measures required by Sec. 412.47(a) and (b).
* * * * *
(d) Any source subject to this subpart that commenced discharging
after April 14, 1993, and prior to [X days from effective date
of the final rule], which was a new source subject to the standards
specified in Sec. 412.15, revised as of [X days from
effective date of the final rule], must continue to achieve those
standards for the applicable time period specified in 40 CFR
122.29(d)(1). Thereafter, the source must achieve the standards
specified in Sec. 412.43(a) and (b).
* * * * *
[FR Doc. 06-5773 Filed 6-29-06; 8:45 am]
BILLING CODE 6560-50-P