Wednesday,

February 12, 2003
Part  H



Environmental

Protection Agency

40 CFR Parts 9, 122, 123, and 412
National Pollutant Discharge Elimination
System Permit  Regulation and Effluent
Limitation Guidelines and Standards for
Concentrated Animal Feeding Operations
(CAFOs); Final  Rule

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 7176     Federal Register/Vol. 68, No. 29 / Wednesday, February 12, 2003/Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 9,122,123 and 412
[FRL-7424-7]
RIN2040-AD19

National Pollutant Discharge
Elimination System Permit Regulation
and Effluent Limitation Guidelines and
Standards for Concentrated Animal
Feeding Operations (CAFOs)

AGENCY: Environmental Protection
Agency.
ACTION: Final rule.

3UMMARY: Today's final rule revises and
clarifies the Environmental Protection
Agency's (EPA) regulatory requirements
for concentrated animal feeding
operations (CAFOs) under the Clean
Water Act. This final rule will ensure
that CAFOs take appropriate actions to
manage manure effectively in order to
protect the nation's water quality.
  Despite substantial improvements in
the nation's water quality since the
inception of the Clean Water Act, nearly
40 percent of the Nation's assessed
waters show impairments from a wide
range of sources. Improper management
of manure from CAFOs is among the
many contributors to remaining water
quality problems. Improperly managed
manure has caused serious acute and
chronic water quality problems
throughout the United  States.
  Today's action strengthens the
existing regulatory program for CAFOs.
The rule revises two sections of the
Code of Federal Regulations (CFR), the
National Pollutant Discharge
Elimination System (NPDES) permitting
requirements for CAFOs (Sec. 122) and
the Effluent Limitations Guidelines and
Standards (ELGs) for CAFOs (Sec. 412).
  The rule establishes a mandatory duty
for all CAFOs to apply  for an NPDES
permit and to develop and implement a
nutrient management plan. The effluent
guidelines being finalized today
establish performance expectations for
existing and new sources to ensure
appropriate storage of manure, as well
as expectations for proper land
application practices at the CAFO.  The
required nutrient management plan
would identify the site-specific actions
to be taken by the CAFO to ensure
proper and effective manure and
wastewater management, including
compliance with the Effluent Limitation
Guidelines. Both sections of the rule
also contain new regulatory.
requirements for dry-litter chicken
operations.
  This improved regulatory program is
also designed to support and
 complemenjt the array of voluntary and
 other programs implemented by the
 United States Department of Agriculture
 (USDA), EPA and the States that help
 the vast majority of smaller animal
 feeding operations not addressed by this
 rule. This nile is an integral part of an
 overall federal strategy to support a
 vibrant agriculture economy while at
 the same time taking important steps to
 ensure that all animal feeding
 operations manage their manure
 properly and protect water quality.
   EPA believes that these regulations
 will substantially benefit human health
 and the environment by assuring that an
 estimated 15,500 CAFOs effectively
 manage the |300 million tons of manure
 that they produce annually. The rule
 also acknowledges the States' flexibility
 and range of tools to assist small and
 medium-size AFOs.
 DATES: These final regulations are
 effective on April 14, 2003.
 ADDRESSES: The administrative record is
 available for inspection and copying at
 the Water Dpcket, located at the EPA
 Docket Center (EPA/DC) in the
 basement of the EPA West Building,
 Room B-10?, at 1301 Constitution Ave.,
 NW., Washington, DC. The
 administrative record is also available
 via EPA Dockets (Edocket) at http://
 www.epa.gov/edocket under Edocket
 number OW-2002-0025. The rule and
 key supporting materials are also
 electronically available on the Internet
 at http://www.epa.gov/npdes/caforule.
 FOR FURTHER INFORMATION CONTACT:
 Gregory Beauty, U.S. EPA, Office of
 Water, Office of Wastewater
 Management (4203M), 1200
 Pennsylvania Avenue NW., Washington,
 DC 20460, 202-564-0724, for
 information'pertaining to the NPDES
 Regulations (Part 122) or Paul Shriner,
 U.S. EPA, Office of Water, Office of
'Science and Technology (4303T), 1200
 Pennsylvania Avenue NW., Washington,
 DC 20460, 202-566-1076, for
 information pertaining to the Effluent
 Guideline (P,art 412).
 SUPPLEMENTARY INFORMATION:
 A. General Information
  1. What entities are potentially regulated
    by this fiial rule?
  2. How Can I Get Copies of This Document
    and Other Related Information?
 B. Under wtmjt legal authority is this final
    rule issued?
 C. How is this  preamble organized?
 D. What is the Comment Response
    Document?
 E. What other, information is available to
    support this final rule?
 I. Background] Information
  A. What is the context for this rule?
  B. Why is EiPA revising the existing
    effluent guidelines and NPDES
    regulations for CAFOs?
  C. What are the environmental and human
    health concerns associated with
    improper management of manure and
    wastewater at CAFOs?
  1. How do the amounts of animal manure
    compare to human waste?
  2. What are "excess manure nutrients" and
    why are they an indication of
    environmental concern?
  3. What pollutants are present in animal
    manure and wastewater?
  4. How do these pollutants reach surface
    water?
  5. How is water quality impaired by animal
    manure and wastewater?
  6. What ecological and human health
    impacts have been caused by CAFO
    manure and wastewater?
  D. What are the roles of the key entities
    involved in the final rule?
  1. CAFOs.
  2. States.
  3. EPA.
  4. USDA.
  5. Other stakeholders.
  6. The public.
  E. What principles have guided EPA's
    decisions embodied in this rule?
  F. What are the major elements of this final
    rule? Where do I find the specific
    requirements?
  1. NPDES Regulations  for CAFOs.
  2. Effluent Limitations Guidelines
    requirements for CAFOs.
H. What Events Have Led to This Rule?
  A. The Clean Water Act
  1. The National Pollutant Discharge
    Elimination System  (NPDES) permit
    program
  2. Effluent limitations guidelines and
    standards
  3. Effluent guidelines planning process—
    Section 304(m) requirements
  B. Existing Clean Water Act requirements
    applicable to CAFOs
  1. Scope and requirements of the 1976
    NPDES regulations for CAFOs
  2. Scope and requirements of the 1974
    feedlot effluent guidelines
  C. USDA-EPA Unified National Strategy
    for Animal Feeding Operations
HI. How Was This Final Rule Developed?
  A. Small Business Advocacy Review
    (SEAR) Panel
  B. Proposed Rule
  C. 2001 Notice of Data Availability
  D. 2002 Notice of Data Availability.
  E. Public Comments
  F. Public outreach
  1. Pre-proposal activities
  2. Post-proposal activities
IV. CAFO Roles and Responsibilities
  A. Who is affected by this rule?
  L.What is an AFO?
  2. What is a CAFO?
  3. What types of animals are covered by
    today's rule?
  4. Is my AFO a CAFO if it discharges only
    during large storm events?
  5. How are land application discharges of
    manure and process  wastewaters :at
    CAFOs covered by this rule?
  6. How is EPA applying the Agricultural
    Storm Water Exemption with respect to
    Land Application of CAFO Manure and
    Process Wastewaters?

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            Federal Register/Vol.  68, No.  29/Wednesday, February 12, 2003/Rules  and Regulations       7177
  7. When and how is an AFO designated as
    aCAFO?
  8. Can EPA designate an AFO as a CAFO
    whore the State is the permitting
    authority?
  9. How can States use non-NPDES
    programs to prevent medium and small
    operations from being defined or
    designated as CAFOs?
  10. What CAFOs are new sources?
  B. Who needs a permit and when?
  1. Who needs to seek coverage under an
    NPDES permit?
  2. How can a CAFO make a demonstration
    of no potential to discharge?
  3. When must CAFOs seek coverage under
    a NPDES permit?
  4. What are the different types of permits?
  5. How does a CAFO apply for a permit?
  6. What are the minimum required
    elements of an NOI or application for an
    individual permit?
  C. What are the requirements and
    conditions in an NPDES permit?
  1. What are the different types of effluent
    limitations that may be ha a CAFO
    permit?
  2. Effluent limitations guidelines for Large
    CAFOs
  3. What technology-based limitations apply
    to Small and Medium CAFOs?
  4. Will CAFOs be required to develop and
    implement a Nutrient Management Plan?
  5. Does EPA require nutrient management
    plans to be developed or reviewed by a
    certified planner?
  6. What are the special conditions
    applicable to all NPDES CAFO permits?
  7. Standard conditions applicable to all
   NPDES CAFO permits
  D. What records and reports must be kept
   on-site or submitted?
V. States' Roles and Responsibilities
  A. What are the key roles of the States?
  B. Who will implement these new
   regulations?
  C. When and how must a State revise its
   NPDES permit program?
  D. When must States issue new CAFO
   NPDES permits?
  E. What types of NPDES permits are
   appropriate for CAFOs?
  F. What flexibility exists for States to use
   other programs to support the
   achievement of the  goals of this
   regulation?
VI. Public Role and Involvement
  A. How can the public get involved hi the
   revision and approval of State NPDES
   Programs?
  B. How can the public get involved if a
   State fails to implement its CAFO
   NPDES permit program?
  C, How can the public get involved in
   NPDES permitting of CAFOs?
  D. What information about CAFOs is
   available to the public?
VII. Environmental Benefits of the Final Rule
  A. Summary of the environmental benefits
  B. What pollutants are present hi manure
    and other CAFO wastes, and how do
    they affect human health and the
    environment?
  1. What pollutants are present in animal
    waste?
  2. How do these pollutants reach surface
    waters?
  3. How is water quality impaired by annual
    wastes?
  4. What ecological and human health
    impacts have been caused by CAFO
    •wastes?
  C. How will water quality and human
    health be improved by this rule?
  1. What reductions in pollutant discharges
    will result from this rule?
  2. Approach for determining the benefits of
    this rule
  3. Benefits from improved surface water
    quality
  4. Benefits from improved ground water
    quality
  D. Other (non-water quality) environmental
    impacts and benefits
Vin. Costs and Economic Impacts
  A. Costs of the final rule
  1. Method for estimating the costs of this
    rule
  2. Estimated annual costs of the final
    CAFO regulations
  B. Economic Effects
  1. Effects on the CAFO operation
  2. Market analysis
  C. Cost-Benefit and Cost-Effectiveness
    Analyses
  1. Cost-Benefit Analysis
  2. Cost-Effectiveness Analysis
IX. Coordination With Other Federal
    Programs
  A. How does today's rule function in
    relation to other EPA programs?
  1. Water quality trading
  2. Total Maximum Daily Load (TMDL)
  3. Watershed permitting
  4. Coastal Zone Act Reauthorization
    Amendments of 1990 (CZARA)
  5. Clean Water Act section 319 Program
  6. Source Water Protection Program
  7. What is EPA's position regarding
    Environmental Management Systems?
  B. How is EPA coordinating with other
federal agencies?
X. Statutory and Executive Order Reviews
  A. Executive Order 12866: Regulatory
    Planning and Review
  B. Paperwork Reduction Act
  C. Regulatory Flexibility Act
  1. Background
  2. Summary of Final Regulatory Flexibility
    Analysis
  3. Compliance guide
  4. Use of Alternative Definition
  D. Unfunded Mandates Reform Act
  1. Private costs
  2. State Local and Tribal Government Costs
  3. Funding and technical assistance
    available to CAFOs            '.
  4. Funding available to States
  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
    Risks and Safety Risks          :
  H. Executive Order 13211: Actions that
    Significantly Affect Energy Supply,
    Distribution, or Use
  I. National Technology Transfer and
    Advancement Act
  J. Executive Order 12898: Federal Actions
    to Address Environmental Justice in
    Minority Populations and Low-Income
    Populations
  K. Congressional Review Act
Appendix—Form 2B

A. General Information

1. What Entities Are Potentially
Regulated by This Final Rule?

  This final rule applies to new and
existing animal feeding operations
(AFOs) that meet the definition of a
concentrated animal feeding operation
(CAFO),  or AFOs that are designated as
CAFOs by the permitting authority.
CAFOs are defined by the Clean Water
Act as point sources for the purposes of
the National Pollutant Discharge
Elimination System  (NPDES) program.
(33 U.S.C. 1362). The rule also applies
to States and Tribes  with authorized
NPDES Programs.
  Table 1 lists the types of entities EPA
is now aware could potentially be
regulated by this final rule. This table is
not intended to be exhaustive, but rather
provides a guide for readers regarding
entities likely to be regulated by this
action. Other types of entities not listed
in the table could also be regulated. To
determine whether your facility is
regulated by this action, you should
carefully examine the definitions and
other provisions of 40 CFR 122.23 and
the provisions of 40  CFR Part 412,
including the applicability criteria at 40
CFR 412.1. If you have questions
regarding the applicability of this action
to a particular entity, consult one of the
persons listed in the preceding FOR
FURTHER INFORMATION CONTACT section.

Category
Federal, State, and Local Gov-
ernment:
Industry 	
TABLE 1 .—ENTITIES POTENTIALLY REGULATED BY THIS
Examples of regulated entities

RULE
North American in-
dustry code (NAIC)
See below 	

Standard industrial
classification code
See below

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7178      Federal Register/Vpl. 68, No.  29/Wednesday, February 12,  2003/Rules and Regulations
                      TABLE 1.—ENTITIES POTENTIALLY REGULATED BY THIS RULE—Continued
Category

Examples of regulated entities V
Operators of animal production operations that meet the defini-
tion of a CAFO: :
Beef cattle feedlots (including veal) 	
Beef cattle ranching and farming 	
Hogs t . ....
Sheep 	 '., 	
General livestock except dairy and poultry
Dairy farms .i 	
Broilers fryers and roaster chickens .
Chicken eggs . ; 	


Poultry and eggs 	 , 	
Ducks . . . \ . „ 	 	 	
Horses and other equities 	

North American in-
dustry code (NAIC)
112112 	
112111 	
11221 	
1241, 11242 	
11299
11212 	
11232
11231 	 	 	
11233 	
11234 . ..
11239 	
112390 	
11292 	

Standard industrial
classification code
0211
0212
0213
0214
0219
0241
0251
0252
0253
0254
0259
0259
0272
2. How Can I Get Copies of This
Document and Other Related
Information?
  a. Docket. EPA has established an
official public docket for this action
under Docket ID No. W-00-27. The
official public docket consists of the
documents specifically referenced in
this action, any public comments
received, and oilier information related
to this action. Although a part of the
official docket, the public docket does
not include Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
The official public docket is the
collection of materials that is available
for public viewing at the Water Docket
in the EPA Docket Center, (EPA/DC)
EPA West, Room B102,1301
Constitution Ave., NW., Washington,
DC. The EPA Docket Center 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 Reading Room is (202)
566-1744, and the telephone number for
the Water Docket is (202) 566-2426.
  b. Electronic Access. You may access
this Federal Register document
electronically through the EPA Internet
under the "Federal Register" listings at
http://www.epa.gov/fedrgstr/.
  An electronic version of the public
docket is available through EPA's
electronic public docket and comment
system, EPA Dockets. You may use EPA
Dockets at http://www.epa.gov/edocket/
to view public  comments, access the
index listing of the contents of the
official public docket, and to access
those documents in the public docket
that are available electronically.
Although not all docket materials may
be available electronically, you may still
access any of the publicly available
docket materials through the docket
facility identified in section A.2.a. Once
in the systeni, select "search," then key
in the appropriate docket identification
number (OW-2002-0025).

B. Under What Legal Authority Is This
Final Rule Issued?
  Today's  final rule is issued under the
authority of Sections 301, 304, 306, 307,
308, 402, and 501 of the Clean Water
Act, 33 U.S.C. 1311,1314, 1316, 1317,
1318,1342, and 1361.

C. Howls This Preamble Organized?
  Below is ah outline for the preamble
to the final rule. It is written in a
question-and-answer format that is
designed to help the reader understand
the information  in the rule. Each
question is followed by a concise
answer, a brief summary of what was
proposed,  the key comments that the
Environmental Protection Agency (EPA)
received on the proposed rule, and the
principal rationale for EPA's decision.

List of Acronyms
AFO—animal feeding operation
BAT—best available technology
  economically  achievable
BCT—best conventional pollutant
  control technology
BOD—biochemical oxygen demand
BPJ—best prpfessional judgment
BMP—best management practice
BPT—best practicable control
  technology currendy available
CAFO—concentrated animal feeding
  operation ;
CFR—Code of Federal Regulations
CPU—colony forming units
CNMP—comprehensive nutrient
  management plan
CSREES—USDA's Cooperative State
  Research, Education, and Extension
  Service
CWA—Clean Water Act
CZARA—Coastal Zone Act
  Reauthorization Amendments
ELG—effluent limitations guideline
EMS—environmental management
  system
EPA—Environmental Protection Agency
EQIP—Environmental Quality
  Incentives Program
FAPRI—Food and Agricultural Policy
  Research Institute
FR—Federal Register
ICR—Information Collection Request
NODA—-Notice of Data Availability
NOI—notice of intent          :
NPDES—National Pollutant Discharge
  Elimination System
NRCS—USDA's Natural Resources
  Conservation Service
NRDC—Natural Resources Defense
  Council
NSPS—new source performance
  standards
NTTAA—National Technology Transfer
  and Advancement Act
NWPCAM—National Water Pollution
  Control Assessment Model
OMB—U.S, Office of Management and
  Budget
POTW—publicly owned treatment
  works
RFA—Regulatory Flexibility Act
SBA—U.S. Small Business
  Administration
SBAR (panel)—Small Business
  Advocacy Review Panel
SBREFA—Small Business Regulatory
  Enforcement Fairness Act
SRF—State Revolving Fund
TMDL—total maximum daily load
TSS—-total suspended solids
UMRA—Unfunded Mandates Reform
  Act
USDA—United States Department of
  Agriculture
WWTP—wastewater treatment plant

D. What Is the Comment Response
Document?                   '.
  EPA received more than 11,000
comments on the proposed rule and on
the two supplemental Notices of Data

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            Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and  Regulations     7179
 Availability. EPA evaluated all the
 significant comments submitted and
 prepared a Comment Response
 Document containing the Agency's
 responses to those comments. The
 Comment Response Document
 complements and supplements this
 preamble by providing more detailed
 explanations of EPA's final actions. The
 Comment Response Document is
 available at the Water Docket. See
 Section E below for additional
 information.
 E. What Other Information Is Available
 to Support This Final Rule?
  In addition to this preamble, today's
 final rule is supported by extensive
 other information that is part of the
 administrative record, such as the
 Comment Response Document, and the
 key supporting documents listed below.
 These supporting documents and the
 administrative record are available at
 the Water Docket and via e-Docket.
  • "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).
 Hereafter referred to as the Technical
 Development Document, this document
 presents EPA's technical conclusions
 concerning the rule. EPA describes,
 among other things, the data collection
 activities in support of the rule, the
 wastewater treatment technology
 options,  wastewater characterization,
 and the estimated costs to the industry.
 • "Economic Analysis of the Final
  Revisions to the National Pollutant-
  Discharge Elimination System
  Regulation and the Effluent
  Guidelines for Concentrated Animal
  Feeding Operations" (EPA  821-R-03-
  002). Hereafter referred to as the
  Economic Analysis, this document
  presents the methodology employed
  to assess economic impacts of the
  final rule and the results of the
  analysis.
 • "Cost Methodology 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-
  004). Hereafter referred to as the Cost
  Support Document, this document
  presents the methodology employed
  to estimate costs that will be borne by
  CAFOs to comply with the
  requirements of the final rule.
  •  Environmental and Economic
Benefit Analysis of the Final Revisions
to the National Pollutant Discharge
Elimination System Regulation and the
Effluent Guidelines for Concentrated
 Animal Feeding Operations" (EPA 821—
 R-03-003). Hereafter referred to as the
 Benefits Analysis, this document
 presents the methodologies and results
 of analyses used to assess
 environmental impacts of the final rule.
   •  "Environmental Assessment of
 Proposed Revisions to the National
 Pollutant Discharge Elimination System
 Regulation and the Effluent Guidelines
 for Concentrated Animal Feeding
 Operations" (EPA 821-R-01-002).
 Hereafter referred to as the
 Environmental Assessment, this
 document illustrates the environmental
 impacts associated with animal
 agriculture.
   •  "Information Collection Request for
 Final Revisions to the National
 Pollutant Discharge Elimination System
 Regulation and the Effluent Limitations
 Guidelines for Concentrated Animal
 Feeding Operations" (EPA ICR No.
 1989-02). Hereafter referred to as the
 ICR, this document presents estimates of
 the labor and capital costs associated
 with the recordkeeping and reporting
 requirements of the final rule.
 I. Background Information

 A. What Is  the Context for This Rule?
   Nationally, there are an estimated 1.3
 million farms with livestock. About
 238,000 of these farms are considered
 animal feeding operations (AFOs)—
 agriculture enterprises where animals
 are kept and raised in confinement.
 AFOs annually produce more than 500
 million tons of animal manure that,
 when improperly managed, can pose
 substantial risks to the environment and
 public health. EPA and the United
 States Department of Agriculture
 (USDA) are committed to a
 comprehensive national approach to
 ensure that manure and wastewater
 from AFOs are properly managed. EPA
 and USDA are relying on a
 comprehensive suite of voluntary
 programs (e.g. technical assistance,
 training, funding, and outreach) and
 regulatory programs to ensure that AFOs
 establish appropriate site-specific
 comprehensive nutrient management
 plans (CNMPs) that will protect the
 environment and public health. Today's
 rule is a part of this suite of actions. It
 ensures that the largest of these
 operations, CAFOs, are required to
 develop and implement a nutrient
 management plan as a condition of an
 NPDES permit. The requirement in this
 rule to develop and implement a
 nutrient management plan can generally
be fulfilled  by developing and
 implementing a CNMP.
  Congress  passed the Clean Water Act
to "restore and maintain the chemical,
 physical, and biological integrity of the
 nation's waters." (33 U.S.C. 1251(a)).
 The Clean Water Act establishes a
 comprehensive program for protecting
 our Nation's waters. Among its core
 provisions, the Act prohibits the
 discharge of pollutants from a point
 source to waters of the United States
 except as authorized by an NPDES
 permit. The Clean Water Act also
 requires EPA to establish national
 technology-based effluent limitations
 guidelines and standards (ELGs) for
 different categories of sources. Section
 502 of the Clean Water Act specifically
 defines the term "point source" to
 include CAFOs.  In 1974 and 1976, EPA
 promulgated regulations that
 established ELGs for large feedlots
 (CAFOs) and established permitting
 regulations for CAFOs. Today's final
 rule revises the more than 25-year old
 requirements that apply to CAFOs. This
 regulatory action, which applies
 primarily to the largest CAFOs, is an
 important component of the overall
 effort to ensure effective management of
 manure.
  Focusing EPA's regulatory program on
 the largest operations, which present the
 greatest potential risk to water quality,
 is consistent with the Unified National
 Strategy for Animal Feeding Operations
 jointly developed by EPA and USDA
 (USEPA/USDA, March 1999). The
 Strategy specifies that the vast majority
 of operations that confine animals are
 and will continue to be addressed
 through locally focused voluntary
 programs. The Strategy defines a
 national objective for all AFOs to •
 develop CNMPs to  minimize impacts on
 water quality and public health from
 AFOs. The vast majority (estimated to
 be about 95%) of these CNMPs will be
 developed under voluntary programs.
 The requirement in today's rule that the
 largest of these operations develop and
 implement a nutrient management plan
 is consistent with the objective of the
 Strategy.

 B. Why Is EPA Revising the Existing
 Effluent Guidelines and NPDES
 Regulations for CAFOs?
  Despite more than 25 years of
 regulation of CAFOs, reports of
 discharge and runoff of manure and
 manure nutrients from these operations
 persist. Although these conditions are in
 part due to inadequate compliance with
 and enforcement of existing regulations,
EPA believes that the regulations
themselves also need revision. The final
regulations being announced today will
reduce discharges that impair water
quality by strengthening the permitting
requirements and performance
standards for CAFOs. These changes are

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 7180      Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
 expected to mitigate future water quality
 impairment and the associated human
 health and ecological risks by reducing
 pollutant discharges from facilities that
 confine a large number of animals in a
 single location.
   EPA's revisions to the existing
 regulations also address the changes
 that have occurred in the animal
 production industries in the United
 States since the development of the
 existing regulations. The continued
 trend toward fewer but larger
 operations, coupled with greater
 emphasis on more intensive production
 methods and specialization, is
 concentrating more manure nutrients
 and other animal waste constituents
 within some geographic areas. These
 large operations often do not have
 sufficient land to effectively use the
. manure as fertilizer. Furthermore, there
 is limited land acreage near the CAFO
 to effectively use the manure. This trend
 has coincided with increased reports of
 large-scale discharges from CAFOs, as
 well as continued runoff that is
 contributing to the significant increase
 in nutrients and resulting impairment of
 many U.S. water bodies.
   Finally, EPA's revisions to the
 existing regulations will make the
 regulations more effective for the
 purpose of protecting or restoring water
 quality. The revisions will also make the
 regulations easier to understand and
 better clarify the conditions under
 which an AFO is a CAFO and, therefore,
 subject to the regulatory requirements of
 today's final regulations.
 C. What Are the Environmental and
 Human Health Concerns Associated
 With Improper Management of Manure
 and Wastewater at CAFOs?
   This section provides a brief summary
 of the environmental and human health
 concerns associated with the improper
 management of manure and wastewater
 at CAFOs. It is intended to provide the
 necessary context for discussions in
 subsequent sections of this preamble.
 Information is provided on the amount
 of manure generated by animal
 agriculture and the areas of the country
 where the amount of manure generated
 by these operations is considered excess
 at the farm and county levels as defined
 in analyses by USDA. This information
 is critical to framing the action EPA  is
 taking today. A detailed discussion of
 the environmental and human health
 impacts is presented in Section VII of
 this preamble, entitled Environmental
 Benefits of the Final Rule.
   Livestock and poultry manure, if not
 properly handled and managed by the
 CAFO, can contribute pollutants to the
 environment and pose a risk to human
and ecological health. EPA's
administrative record for this final rule
includes estimates of the amount of
manure and fexcess nutrients generated
each year by'CAFOs and provides
information 6n the types of pollutants
known to be present in animal manure
and wastewater. The administrative
record also-documents the potential
environmental problems associated with
CAFOs, based on States reporting water
quality impairment attributable to
agricultural and animal production,
survey data that show human and
ecological health risks associated with
these pollutants, and documented cases
linking these risks to the discharge and '
runoff of pollutants from livestock and
poultry facilities. More information is
provided in the 2001 proposed rule (66
FR 2972-2974 and 66 FR 2976-2984]
and other support documents referenced
in the proposal and in the
administrative record for this final rule.
.The administrative record contains
information bn the scientific and
technical literature, as well as available
survey and monitoring data, to
corroborate the Agency's findings.
1. How Do the Amounts of Animal
Manure Compare to Human Waste?
  USDA estimates that operations that
confine livestock and poultry animals
generate about 500 million tons of
manure annually (as excreted). This
compares to EPA estimates of about 150
million tons j(wet weight) of human
sanitary waste produced annually in the
United States, assuming a U.S.
population of 285 million and an
average waste generation of about 0.518
tons per person per year. By this
estimate, all 'confined animals generate
3 times more raw waste than is
generated by humans in the U.S. As a
result of today's action, EPA is
regulating close to 60 percent of all
manure generated by operations that
confine animals. Of the estimated
amount of nutrients generated by these
operations that is in excess of cropland
needs, EPA's regulation will account for
nearly 70 percent of manure generated
by these operations.
2. What Are ''Excess Manure Nutrients"
and Why Are They an Indication of
Environmental Concern?
  An analysis developed by USDA
provides a means to consider the
potential environmental risk from
confined livestock and poultry manure
based on the. amount of "excess"
manure nutrients generated by CAFOs.
USDA defines "excess manure
nutrients" on a confined livestock farm
as manure nutrient production that
exceeds the capacity of the crop to
assimilate the nutrients. USDA's
analysis of 1997 Census of Agriculture
data indicates that a considerable
portion of the manure nutrients
generated at larger animal production
facilities exceeds the crop nutrient
needs, both at the farm and local county
levels. Given consolidation trends hi the
industry toward larger-sized operations
that tend to have less available land on
which to spread manure, the amount of
excess manure nutrients being produced
has been rising.                :
  Among the principal reasons for the
farm-level excess of nutrients generated
is inadequate land for utilizing manure.
USDA data show that the amount of
nutrients, and the amount of excess
nutrients, produced by confined animal
operations rose about 20 percent from
1982 to 1997. During that same period,
cropland and pastureland controlled by
these farms declined from an average of
3.6 acres in 1982 to 2.2 acres per 1,000
pounds live weight of animals in 1997.
The combination of these factors has
contributed to an increase in the amount
of excess nutrients produced at these
operations. Larger-sized operations with
1,000 or more animals exceeding 1,000
pounds accounted for the largest share
of excess nutrients in 1997. Roughly 60
percent of the nitrogen and 70 percent
of the phosphorus generated by these
operations must be transported off-site.
  By sector, USDA estimates that
operations that confine poultry account
for the majority of on-farm excess1
nitrogen and phosphorus. Poultry
operations account for nearly one-half of
the total recoverable nitrogen, but on-
farm use is able to absorb less than 10
percent of that amount. In 1997 poultry
operations accounted for about two-
thirds of the total excess on-farm
nitrogen. About half of the estimated on-
farm excess phosphorus was generated
by poultry. This is attributable to hot
only the limited land area for manure
application but also the generally: higher
nutrient content of poultry manure
compared to the manure of most Cither
farm animals, as reported in the
scientific literature. Dairies and hog
operations are the other dominant
livestock types shown to contribute to
excess on-farm nutrients, particularly
phosphorus.
  The regions of the United States that
show the largest increase in excess
nutrients between 1982 and 1997;are the
Southeast and the Mid-Atlantic. The
excess amounts are mostly the result of
the number and concentration of large
poultry and hog operations in those
regions. These operations generate high
nutrient concentrations and often have
the smallest land area per animal ;unit

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            Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations     7181
 for manure application in the United
 States.
   USDA's analysis also indicates which
 counties have the potential for excess
 manure nutrients defined as manure
 nutrients produced in a county in
 excess of the assimilative capacity of
 crop and pastureland in that county.
 (The analysis includes counties that
 have nutrient levels that exceed the
 assimilative capacity for all of the crop
 and pastureland in the county, as well
 as those counties where half of the
 county's total nitrogen or phosphorus
 could be provided by manure from
 confined animal operations.) The
 counties with potential excess manure
 nitrogen totaled 165 counties across the
 United States in 1997; the counties with
 potential excess manure phosphorus
 totaled 374 counties. The areas of
 particular concern for potential county-
 level excess manure nutrients are in
 North Carolina, Georgia, Alabama,
 Mississippi, Arkansas, California,
 Maryland, Delaware, Pennsylvania,
 Virginia, and Washington. If current
 trends in the livestock and poultry
 industry continue, more manure will be
 produced in areas without the physical
 capacity to agronomically use all the
 nutrients contained in that manure.
   USDA's analysis is reported in
 "Confined Animal Production and
 Manure Nutrients" (Agriculture
 Information Bulletin 771) and also in
 "Confined Animal Production Poses
 Manure Management Problems" in the
 September 2001 issue of USDA's
 Agricultural Outlook. Both are available
 at USDA's Web site at http://
 mvw.ers.usda.gov/. Additional
 documentation on how this analysis
 was conducted is in USDA's "Manure
 Nutrients Relative to the Capacity of
 Cropland and Pastureland to Assimilate
 Nutrients: Spatial and Temporal Trends
 for the United States," December 2000,
 available at http://
 ivww.nhq.nrcs.usda.gov/land/pubs/
 manntr.html. These documents are also
 available in the administrative record
 for today's final rule (i.e. docket number
 W-00-27).
 3. What Pollutants Are Present in
 Animal Manure and Wastewater?
  Pollutants most commonly associated
 with animal waste include nutrients
 (including ammonia), organic matter,
 solids, pathogens, and odorous
 compounds. Animal waste can also be
 a source of salts and various trace
 elements (including metals), as well as
pesticides, antibiotics, and hormones.
These pollutants can be released into
the environment through discharge or
runoff if manure and wastewater are not
properly handled and managed.
 4. How Do These Pollutants Reach
 Surface Water?
   Pollutants in animal waste and
 manure can' enter the environment
 through a number of pathways. These
 include surface runoff and erosion,
 overflows from lagoons, spills and other
 dry-weather discharges, leaching into
 soil and ground water, and
 volatilization of compounds (e.g.,
 ammonia) and subsequent redeposition
 on the landscape. As documented in the
 administrative record, pollutants from
 animal manure and wastewater can be
 released from an operation's animal
 confinement area, treatment and storage
 lagoons, and manure stockpiles, and
 from cropland where manure is often
 land-applied.

 5. How Is Water Quality Impaired by
 Animal Manure and Wastewater?
  Agricultural operations, including
 CAFOs, now account for a significant
 share of the remaining water pollution
 problems in the United States, as
 reported in the National Water Quality
 Inventory: 2000 Report (hereafter the
 "2000 Inventory"). This report, prepared
 every 2 years under Section 305(b) of
 the Clean Water Act, summarizes States'
 reports of impairment to their water
 bodies and the suspected sources of
 those impairments. A more
 comprehensive discussion of the results
 of the 2000 Inventory is included in
 Section VII of this preamble.
  EPA's 2000 Inventory data indicate
 that the agricultural sector including
 crop production, pasture and range
 grazing, concentrated and confined
 animal feeding operations, and
 aquaculture is the leading contributor of
 pollutants to identified water quality
 impairments in the Nation's rivers and
 streams. This sector is also the leading
 contributor in the nation's lakes, ponds,
 and reservoirs. Agriculture is also
 identified as the fifth leading
 contributor to identified water quality
 impairments in the nation's estuaries.
 The inventory does not allow a
 comprehensive breakout of water
 quality impairments attributable to
 CAFOs, but EPA's data show that water
 quality concerns tend to be greatest in
 regions where crops are intensively
 cultivated and where livestock
 operations are concentrated.
  The leading pollutants impairing
 surface water quality in the United
 States as identified in the 2000 survey
 data include nutrients, pathogens,
 sediment/siltation, and oxygen
 depleting substances. These pollutants
can originate from a variety of sources,
including the animal production
industry.
   The 2000 Inventory provides a general
 indication of national surface water
 quality. While concerns have sometimes
 been raised about the comparability and
 consistency of these data across States,
 the report highlights in a general way
 the magnitude of water quality
 impairment from agriculture and the
 relative contribution compared to other
 sources. Moreover, the findings of this
 report are consistent with other reports
 and studies conducted by government
 and independent researchers that
 identify CAFOs as an important
 contributor of surface water pollution,
 as summarized in the administrative
 record for this rulemaking.
 6. What Ecological and Human Health
 Impacts Have Been Caused by CAFO
 Manure and Wastewater?       ',
  Among the reported environmental
 problems associated with animal
 manure are surface water (e.g., lakes,
 streams, rivers, and reservoirs) and
 ground water quality  degradation,
 adverse effects on estuarine water
 quality and resources in coastal areas
 and effects on soil and air quality. The
 scientific literature, which spans more
 than 30 years, documents how this
 degradation can contribute to increased
 risk to aquatic and wildlife ecosystems;
 an example is the large number of fish
 kills in recent years. Human and
 livestock animal health can also be
 affected by excessive nitrate levels in
 drinking water and exposure to
 waterborne human pathogens and other
 pollutants in manure. The
 administrative record provides more
 detailed information on the scientific
 and technical research to support these
 findings.
  Section VII of this document provides
 additional information concerning the
 adverse impacts of pollutants associated
 with manure in surface water. Both
 ecological and human health impacts
 are addressed.

 D. What Are the Roles of the Key
 Entities Involved in the Final Rule?
  EPA recognizes the role of many
 interested parties in the development of
 and, ultimately, the successful
 implementation of this final rule.'To the
greatest extent possible, EPA has •
attempted to strike a reasonable balance
among the many interests. A short
summary of their broad roles is
provided below.

1. CAFOs
  Entities that are defined or designated
as CAFOs have clear and binding legal
obligations under this regulation. In
general, all CAFOs have a mandatory
duty to apply for an NPDES permit and

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7182      Federal Register/Vol. 68, No. 29 / Wednesday, February 12, 2003/Rules and Regulations
must comply with the technology and
water quality-based limitations in the
permit as denned by the permitting
authority. Only CAFOs that have
successfully demonstrated no potential
to discharge may avoid a permit. Each
permitted CAFO must also develop and
implement a site-specific nutrient
management plan. EPA fully expects
that a CNMP that is properly developed
and implemented, consistent with
USDA guidance, will satisfy the nutrient
management requirements of this rule.
2. States
  The States, including their
environmental, agriculture, and
conservation agencies, have the key
leadership role in implementing
programs to  ensure that AFOs take  the
important steps needed to implement
sound management practices that
protect water quality. State regulatory-
agencies will play a central role in
implementing today's final rule while
supporting the voluntary efforts of  other
State programs and agencies.
3. EPA
  EPA's statutory obligation is to
establish national regulations that
protect and restore the chemical,
physical, and biological integrity of the
Nation's waters. EPA has undertaken an
extensive outreach process to promote
understanding of the science, policy,
and economic issues surrounding
animal agriculture. The Agency will
continue to work effectively with the
varied interest groups to ensure effective
implementation, compliance assistance,
and enforcement of these regulations.
4. USDA
  USDA is EPA's partner in working
collaboratively to ensure that USDA's
voluntary programs and EPA's
regulatory programs complement each
other  to support effective nutrient
management by AFOs. EPA and USDA
will continue to coordinate the
development and implementation of
tools to support agriculture, in ways that
respect the different roles of the two
agencies.
5. Other Stakeholders
  A host of other entities, such as
research and educational institutions,
soil and water  conservation districts,
watershed groups, and many others, can
contribute to the use of sound
agricultural practices and protection of
water quality. The private sector plays
an important role in ensuring that
CAFOs have the tools and expertise
available to protect water quality while
enhancing production and remaining
profitable. For  example, the private
sector in partnership with educational
institutions and other stakeholders can
explore innovative technologies for the
management and utilization of animal
manure and provide the needed
expertise to support development of
sound, site-fspecific, and technically
based nutrient management plans.

6. The Public

  The public has had, and continues to
demonstrate, a keen interest in many
aspects of animal agriculture. This final
rule establishes obligations for CAFOs
to protect water quality and affirms the
public's role and involvement
throughout the regulatory program.

E. What Principles Have Guided EPA's
Decisions Embodied in This Rule?

  EPA has ponsidered the
implementation of the existing
regulations which are more than 25
years old, changes in the industry, the
extensive comments on the proposed
rule arid supplemental notices of data
availability, and countless studies,
reports, and data in developing this
final rule. At the same time, EPA has
tried to embody some important
principles throughout the final rule. The
Agency strives to ensure its rules are
based on sound science and economics,
promote emerging technologies, and
protect watersheds. In addition, the
following principles have guided this
rulemaking:

Simplicity jand Clarity

  EPA has tried to make this final rule
as simple and easy to understand as
possible. This rule provides a clear
understanding of who is covered and
what they are expected to do.

Emphasis on Large CAFOs

  This rule, focuses on the operations
that pose the greatest risk to water
quality. These operations are
predominantly large CAFOs and some
smaller CAFOs that pose a high risk to
water quality.

Flexibility for States

  This rule establishes a strong and
consistent national expectation for
CAFOs, yet provides flexibility for
States to address site-specific situations.

Sound Nutrient Management Planning

  This rule embodies the goal of
developing site-specific nutrient
management plans to ensure that animal
manure is used consistent with proper
agriculture practices that protect water
quality.
F. What Are the Major Elements of This
Final Rule? Where Do I Find the Specific
Requirements?                 '•
  This section provides a very brief
summary of the major elements of this
final rule and a brief index on where
each of the requirements is located in
the final regulations. The regulations for
the NPDES permit program are in Part
122 of Title 40 of the Code of Federal
Regulations. These NPDES regulations
include requirements that apply to all
point sources, including CAFOs. The
national effluent limitations guidelines
for CAFOs are in Part 412 of Title 40 of
the Code of Federal Regulations.  This
summary is not a replacement for the
actual regulations.

1. NPDES Regulations for CAFOs
  Overall, this final rule maintains
many of the basic features and the
overall structure of the 1976 NPDES
regulations with some important
exceptions. First, all CAFOs have a
mandatory duty to apply for an NPDES
permit, which removes the ambiguity of
whether a facility needs an NPDES
permit, even if it discharges only in the
event of a large storm. In the event that
a Large CAFO has no potential to;
discharge, today's rule provides a
process for the CAFO to make such a
demonstration in lieu of obtaining a
permit. The second significant change is
that large poultry operations are
covered, regardless of the type of waste
disposal system used or whether the
litter is managed in wet or dry form.
  Third, under this final rule, all CAFOs
covered by an NPDES permit are '
required to develop and implement a
nutrient management plan. The plan
would identify practices necessary to
implement the ELG and any other
requirements in the permit and would
include requirements to land apply
manure, litter, and process wastewater
consistent with site specific nutrient
management practices that ensure
appropriate agricultural utilization of
the nutrients.
2. Effluent Limitations Guidelines
Requirements for CAFOs
  a. Existing sources. The final ELGs
published today will continue to apply
to only Large CAFOs, historically
referred to as operations with 1,000 or
more animal units, although the
requirements for existing sources ;and
new sources are different for certain
animal sectors. In the case of existing
sources, the ELGs will continue to
prohibit the discharge of manure and
other process wastewater pollutants,
except for allowing the discharge of
process wastewater whenever rainfall

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            Federal Register/Vol. 68, No. 29/Wednesday,  February 12, 2003/Rules  and Regulations      7183
events cause an overflow from a facility
designed, constructed, and operated to
contain all process wastewaters plus the
runoff from a 25-year, 24-hour rainfall
event. In addition, the ELGs that require
land application at the CAFO must be
at rates that minimize phosphorus and
nitrogen transport from the field to
surface xvaters in compliance with
technical standards for nutrient
management established by the Director.
The ELGs also establish certain best
management practice (BMP)
requirements that apply to the
production and land application areas.
  b. Meiv sources. For new large beef
and dairy operations, the ELGs establish
production area requirements that are
the same as those for existing sources.
In the case of large swine, veal, and
poultry operations that are new sources,
a new zero discharge standard is
established. The rule also clarifies that
where waste management and storage
facilities are  designed, constructed,
operated and maintained to contain all
manure, litter and process wastewater,
including the runoff and direct
precipitation from a 100-year, 24-hour
rainfall event, and is operated in
accordance with certain other
requirements, this will satisfy the new
standard. Land application
requirements for both groups are

 TABLE 1.1.—REGULATORY SUMMARY
identical to those established for
existing sources.
  Table 1.1 provides an annotated
summary of the key elements of these
final regulations as well as the specific
regulatory citation for each change. The
chart is intended only to provide a
summary and roadmap to the
regulations and is not a definitive
description of all regulatory
requirements. Table 1.2 provides a
summary of the time frames for the
implementation and complying with the
requirements of today's rulemaking.
                                                Topic
                                                              Regulatory cite (40
                                                                   CFR)
                                                        Definitions
Animal Feeding Operation (AFO) 	  122.23(b)(1)
Concentrated Animal Feeding Operation (CAFO)	  122.23(b)(2)
Production Area 	  122.23(b)(8)/412.2(h)
Land Application Area	  122.23(b)(3)/412.2(e)
Large CAFOs	  122.23(b)(4)
Manure	  122.23(b)(5)
Medium CAFOs 	  122.23(b)(6)
Process Wastewater	  122.23(b)(7)/412.2(d)
Overflow	,	  412.2(g)
10-year, 24-hour and 25-year, 24-hour storm	  412.2(i)
Setback	  412.4(b)(1)
Vegetated buffer 	  412.4(b)(2)
Multi-year phosphorus application 	  412.4(b)(3)

                                               Who Needs an NPDES Permit?

Designated CAFOs	:	  12223(c)
Duty to apply	  122.23(d)
Land application discharges from a CAFO are subject to NPDES requirements 	  122.23(e)
No Potential to Discharge determinations	  122.23(f)

	When Must CAFOs Apply for Coverage Under an NPDES Permit?

Sources covered under prior regulations 	  122.23(g)(1)
Newly covered CAFOs 	  122.23(g)(2)
New sources and new dischargers 	"!!!!!!!""!!'.!"!'  122 23(q)(3) and (4)
Designated CAFOs	  I22.23(g)(5)

	How Do CAFOs Apply for an NPDES Permit?

Permit application requirements—Individual or general permits	  122.21(i)(1) and
	    [ 122.28(b)(2)(ii)

	           What Is Required in NPDES Permits Issued to CAFOs?

Effluent limitations	               12242(e)(1)
Requirements for CAFOs subject to the ELGs (Part 412):
    Subpart C—Dairy and Beef Cattle Other Than Veal  	  412.30
    Subpart C—Dairy and Beef Cattle Other Than Veal: Effluent limitations attainable by the application of the best  412 31
      practicable control technology currently available (BPT).
    Subpart C—Dairy and Beef Cattle Other Than Veal: Effluent limitations attainable by the application of the best  412.32
      control technology for conventional pollutants (BCT).
    Subpart C—Dairy and Beef Cattle Other Than Veal: Effluent limitations attainable by the application of the best  412.33
      available control technology economically achievable (BAT).
    Subpart C—Dairy and Beef Cattle Other Than Veal: New source performance standards (NSPS) 	              412 35
    Subpart D—Swine, Poultry, and Veal  	  412.40
    Subpart D—Swine, Poultry, and Veal: Effluent limitations attainable by the application of the best practicable con-  412 43
      trol technology currently available (BPT).
    Subpart D—Swine, Poultry, and Veal: Effluent limitations  attainable by the application of the best control tech-  412.44
      nology for conventional pollutants (BCT).

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7184      Federal Register/Vol.  68, No. 29/Wednesday, February 12, 2003/Rules  and  Regulations
                                   TABLE 1.1.—REGULATORY SUMMARY—Continued
                                              Topic
                                                            Regulatory cite (40
                                                                  CFR)
    Subpart D—Swine, Poultry, and Veal: Effluent limitations attainable by the application of the best available control
     technology economically achievable (BAT).
    Subpart D—Swine, Poultry, and Veal New source performance standards (NSPS) 	
    Subparts C and D—Required Land Application Best Management Practices	
    Subparts C and D—Inspection and Record Keeping Requirements	
Additional NPDES CAFO permit requirements:           i
    Nutrient management plan development and Implementation 	
    Record-keeping	,	
    Transferof manure	(	>.	
    Annual reporting requirement	I	
                                                          412.45

                                                          412.46
                                                          412.4(c)
                                                          412.37 and 412.47

                                                          122.42(e)(1)
                                                          122.42(e)(2)
                                                          122.42(e)(3)   :
                                                          122.42(e)(4)
                    TABLE  1.2.—CONSOLIDATED TIME LINE FOR IMPLEMENTING TODAY'S RULEMAKING
                                                                                    Time Frame
Milestone:                                         \
    Effective date of regulation	<	
    Effective date of Effluent Guideline requirements for the'production
     area applicable to Large CAFOs.               - :
    Effective date of Effluent Guideline requirements for the land appli-
     cation area applicable to Large CAFOs.           ,
    Effective date for all CAFOs to develop and implement nutrient
     management plans.
Duty to Apply:                                     :
    Operations defined as CAFOs prior to April 14, 2003	
    Operations defined as CAFOs as of April 14, 2003, and that were
     not defined as CAFOs prior to that date.
    Operations that become defined as  CAFOs  after April  14, 2003,
     but which are not new sources.                  •
    New sources	
    Designated CAFOs  	;..
State Program Revision:                             \
    No statutory changes needed to revise NPDES Prograrn
    Statutory changes needed to revise NPDES Program ......
                    April 14, 2003.
                    June 12, 2003.

                    By December 31, 2006.

                    By December 31, 2006, except for Large CAFOs that are new sources,
                      by date of commencing operations.

                    Must have applied by the date required in 40 CFR 122.21 (c).
                    As specified by the  permitting authority, but no later than April 13,
                      2006.
                    (a) Newly constructed operations: 180 days prior to the time the CAFO
                      commences operation, (b) Other operations (e.g., increase :in num-
                      ber of animals): As soon as  possible but no later than 90 days after
                      becoming defined as a CAFO, except that, if the operational; change
                      that causes the operation to be defined as a CAFO would not have
                      caused it to be defined as a CAFO prior to April 13, 2003, the oper-
                      ation must apply no later than April 13, 2006 or 90 days after be-
                      coming defined as a CAFO, whichever is later.
                    180 days prior to the time the CAFO commences operation.
                    90 days after receiving notice of designation.

                    April 12, 2004.
                    April 13, 2005.
II. What Events Have Led to This Rule?
  The revisions to the National
Pollutant Discharge Elimination System
(NPDES) and Effluent Limitation
Guidelines Programs specified in this
final rule are focused on those livestock
and poultry operations that are defined
or designated as CAFOs. CAFOs are
defined as point sources under the
Clean Water Act. Following is a brief
historical context of key regulatory,
legal, and policy actions which have
collectively led to today's action.
A. The Clean Water Act
  Congress passed the Clean Water Act
to "restore and maintain the chemical,
physical, and biological integrity of the
Nation's waters." (33 U.S.C. 1251(a)}.
The Clean Water Act establishes a
comprehensive program for protecting
and restoring our Nation's waters.
Among its core provisions, the Clean
Water Act prohibits the discharge of
pollutants from a point source to waters
of the United States except as
authorized by an NPDES permit. The
Clean Water Act establishes the NPDES
permit program to authorize and
regulate the discharges of pollutants to
waters of the United States. EPA has
issued comprehensive regulations that
implement the NPDES program at 40
CFR part 122. The Clean Water Act also
provides for the development of
technology-based and water quality-
based effluent limitations that are
implemented through NPDES permits to
control discharges of pollutants.

1. The National Pollutant Discharge
Elimination System (NPDES) Permit
Program '

  Under the NPDES permit program, all
point sources that discharge pollutants
to waters of the United States must
apply for an NPDES permit and may
discharge pollutants only in compliance
with the terms of that permit. Such
permits must include any nationally
established, technology-based effluent
discharge limitations (effluent
guidelines—discussed below, in
subsection II.A.2). In the absence ;of an
applicable national effluent guideline,
NPDES permit writers may establish
technology-based requirements as
determined by the permitting authority
on a case-by-case basis, based on their
"best professional judgment" (BPj).
Water quality-based effluent
requirements are also included in
permits where technology-based
requirements are not sufficient toiensure
compliance with State water quality
standards or where required to
implement a Total Maximum Daily
Load (TMDL). For information on
TMDLs see section IX.A.2 of this
preamble.
  Technology- and water quality-based
requirements may be in the form of

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            Federal Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and  Regulations    .  7185
 numeric effluent limitations or in the
 form of specific BMPs or other non-
 numeric effluent limitations and
 standards. In addition, NPDES permits
 normally include reporting, record-
 keeping, and oilier requirements and
 standard conditions (conditions that
 apply to all NPDES permits, such as the
 duty to properly operate and maintain
 equipment and treatment systems).
   NPDES permits may be issued by EPA
 or a State, Territory, or Tribe authorized
 by EPA to implement the NPDES
 program. Currently, 45 States and the
 Virgin Islands are authorized to
 administer the NPDES program. This
 means that most CAFOs will obtain
 NPDES permits from State governments,
 not from EPA. Alaska, Arizona, the
 District of Columbia, Idaho,
 Massachusetts, New Hampshire, New
 Mexico, and Puerto Rico and other
 territories are not currently authorized
 to implement the NPDES program. In
 addition, Oklahoma, although
 authorized to administer the NPDES
 program, does not have CAFO
 regulatory authority. No Tribe is
 currently authorized to implement the
 NPDES program. This means that
 CAFOs located in the above-named
 jurisdictions or in Indian Country will
 obtain their NPDES permits from EPA.
   An NPDES permit may be either an
 individual permit tailored for a single
 facility or a general permit applicable to
 multiple facilities. Before an individual
 permit is issued, the owner or operator
 must submit a permit application with
 facility-specific information to the
 permitting authority, which reviews the
 information and prepares a draft permit.
 The permitting authority prepares a fact
 sheet explaining the draft permit and
 publishes the draft permit and fact sheet
 for public review and comment.
 Following the permitting authority's
 consideration of public comments, a
 final permit is issued. Specific
 procedural requirements apply to the
 modification, revocation and reissuance,
 and termination of an NPDES permit.
 NPDES permits are subject to a
 maximum 5-year term and may be
 renewed when their term expires.
   General NPDES permits are available
 to address categories of discharges that
 involve similar operations with similar
 wastes. Once a general permit is drafted,
 it is published for public review and
 comment accompanied by a fact sheet
 that explains the permit. Following
 EPA's or the State permitting authority's
 consideration of public comments, a
 final general permit is issued. The
general permit specifies the type or
 category of facilities that may obtain
 coverage under the permit. To gain
permit coverage, facilities generally
 must submit a "notice of intent" (NOI)
 to be covered under the general permit.
 Both general permits and individual
 permits are used to implement the same
 pollution control standards.

 2. Effluent Limitations Guidelines and
 Standards
  Effluent limitations guidelines and
 standards ("effluent guidelines" or
 "ELGs") are national regulations that
 establish limitations on the discharge of
 pollutants by industrial category and
 subcategory. For each category and
 subcategory guidelines address three
 classes of pollutants: (1) Conventional
 pollutants (i.e., total suspended solids
 (TSS), oil and grease, biochemical
 oxygen demand (BOD), fecal coliform
 bacteria, and pH); (2) toxic pollutants
 (e.g., toxic metals such as lead and zinc;
 toxic organic pollutants such as
 benzene); and (3) non-conventional
 pollutants (e.g., phosphorus). These
 technology-based requirements are
 subsequently incorporated into NPDES
 permits.  The Clean Water Act provides
 that effluent guidelines may include
 numeric or non-numeric limitations.
 Non-numeric limitations are  usually in
 the form of BMPs. The effluent
 guidelines are based on the degree of
 control that can be achieved using
 various levels of pollution control
 technology, as outlined below.
  a. Best Practicable Control
 Technology Currently Available (BPT)
 —Section 304(b)(l) of the Clean Water
 Act. In the guidelines for an industry
 category, EPA defines BPT effluent
 limits for conventional, toxic, and non-
 conventional pollutants. Traditionally,
 EPA establishes BPT effluent limitations
 based on the average of the best
 performances of facilities within the
 industry of various ages, sizes, processes
 or other common characteristics. Where
 existing performance is uniformly
 inadequate, EPA may require higher
 levels of control than those currently in
 place in an industrial category if the
 Agency determines that the technology
 can be practically applied. In specifying
 BPT, EPA looks at a number of factors.
 EPA first considers the cost of achieving
 effluent reductions in relation to the
 effluent reduction benefits. The Agency
 also considers the age of the equipment
 and facilities, the processes employed
 and any required process changes,
 engineering aspects of the control
 technologies, non-water quality
 environmental impacts (including
 energy requirements), and such other
 factors as the Agency deems appropriate
 (33 U.S.C. 304(b)(l)(B)).
  b. Best Available Technology
Economically Achievable (BAT)—
Section 304(b)(2) of the Clean Water
 Act. In general, BAT represents the best
 existing economically achievable
 performance of direct discharging
 facilities in the industrial category or
 subcategory. The factors considered in
 assessing BAT are the cost of achieving
 BAT effluent reductions, the age pf
 equipment and facilities involved, the
 processes employed, engineering
 aspects of the control technology,
 potential process changes, non-water
 quality environmental impacts
 (including energy requirements), and
 such factors as the Administrator'deems
 appropriate. The Agency retains
 considerable discretion in assigning the
 weight to be accorded to these factors.
 An additional statutory factor
 considered in setting BAT is economic
 achievability. Generally, the
 achievability is determined on the basis
 of the total cost to the industrial
 subcategory and the overall effect of the
 rule on the industry's financial health.
 BAT requirements may be based on
 effluent reductions attainable through
 changes in a facility's processes and
 operations. As with BPT, where existing
 performance is uniformly inadequate,
 BAT may be based on technology.
 transferred from a different subcategory
 within an industry or from another
 industrial category. BAT may be based
 on process changes or internal controls,
 even when these technologies are not
 common industry practice.
  c. Best Conventional Pollutant Control
 Technology (BCT)—Section 304(b)(4) of
 the Clean Water Act. The 1977
 amendments to the Clean Water Act
 required EPA to  identify effluent
 reduction levels for conventional:
 pollutants associated with BCT  .
 technology for discharges from existing
 industrial point sources. In addition to
 other factors specified in Section
 304(b)(4)(B), the Clean Water Act
 requires that EPA establish BCT  •
 requirements after considering a two-
 part "cost-reasonableness" test. EPA
 explained its methodology for the
 development of BCT limitations in July
 1986 (51 FR 24974). Section 304(a)(4)
 designates the following as conventional
 pollutants: BOD, TSS, fecal coliform
 bacteria, 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).
  a. New Source Performance
 Standards (NSPS)—Section 306 of the
 Clean Water Act. New Source
Performance Standards (NSPS) reflect
effluent reductions that are achievable
based on the best available
demonstrated control technology.1 New
facilities have the opportunity to install

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7186     Federal Register/Vol. 68, No. 29/Wednesday,  February 12, 2003./Rules and Regulations
the best and most efficient production
processes and wastewater treatment
technologies. As a result, NSPS
represents the greatest degree of effluent
reduction attainable through the
application of the best available
demonstrated control technology for all
pollutants (conventional, non-
conventional, and priority pollutants).
In establishing NSPS, EPA is directed by
the Clean Water Act to take into
consideration the cost of achieving the
effluent reduction and any non-water
quality environmental impacts and
energy requirements.
3. Effluent Guidelines Planning
Process—Section 304(m) Requirements
  Section 304(m) of the Clean Water
Act, added by the Water Quality Act of
1987, requires EPA to establish
schedules for (1) reviewing and revising
existing effluent limitations guidelines
and standards and (2) promulgating new
effluent guidelines. On May 28,1998,
EPA published a Notice of Proposed
Effluent Guidelines Plan (63 FR102)
that established schedules for
developing new and revised effluent
guidelines for several industry
categories. One of the industries for
which the Agency established a
schedule was "Feedlots" (swine,
poultry, dairy and beef cattle).
  a. Clean Water Act Section 304(m)
consent decree. The Natural Resources
Defense Council (NRDC) and Public
Citizen, Inc.  filed suit against the
Agency, alleging violation of section
304(m) and other statutory authorities
that require promulgation of effluent
guidelines (NRDC et al. v. Whitman,
Civ. No. 89-2980 (D.D.C.)). Under the
terms of the consent decree in that case,
as amended, EPA agreed, among other
things, to propose effluent guidelines for
swine, poultry, beef and  dairy portions
of the animal industry by December 15,
2000,  and to take final action by
December 15, 2002.
B. Existing Clean Water Act
Requirements Applicable to CAFOs
  EPA's regulation of CAFOs dates to
the 1970s. The existing NPDES CAFO
regulations were issued on March 18,
1976 (41 FR 11458). The existing
national effluent limitations guidelines
and standards for feedlots were issued
on February  14, 1974 (39 FR 5704). The
discussion below provides an overview
of the scope and requirements imposed
under the existing NPDES CAFO
regulations and feedlot effluent
guidelines. It also explains the
relationship of these two regulations,
and it briefly summarizes other federal
and State regulations that potentially
affect AFOs.
1. Scope and Requirements of the 1976
NPDES Regulations for CAFOs

  This section provides, a simplified
summary of the previous NPDES
regulation to provide context for today's
action. The previous NPDES CAFO
regulations promulgated in 1976,
determined which AFOs were defined
or could be designated as CAFOs under
the Clean Water Act and therefore
subject to NPDES permit regulations.
Under those regulations, CAFOs were
defined as AFOs that confined more
than 1,000 animal units (AU). In
addition, an AFO that confined 300  to
1,000 AU was defined as a CAFO if it
discharged pollutants through a man-
made device or if pollutants were
discharged to waters of the United
States that ran through the facility or
otherwise came into contact with the
confined animals. AFOs were not
defined ^s CAFOs, however, if they
discharged only during a 25-year, 24-
hour storm. Under the 1976 NPDES   .
CAFO regulations, the permitting
authority could also designate any AFO
a CAFO, jncluding those with fewer
than 300 !AU, if it met the discharge
criteria specified above and was
determined to be a significant
contributor of pollution.

2. Scope and Requirements of'the 1974
Feedlot Effluent Guidelines

  This section provides a simplified
summary of the previous effluent
guidelines to provide context for today's
action. EPA uses the effluent guidelines
to establish national requirements
limiting discharges to waters of the
United Spates. EPA established the
effluent guidelines for feedlots in 1974
based on the best available technology
that was economically achievable for
the industry. The guidelines were
applicable to those facilities in specified
sectors (or subcategories) with as many
as or more than 1,000 AU that were to
be issued an NPDES permit. The 1974
effluent guidelines did not allow
discharges of pollutants from CAFOs
into the Nation's waters except when a
chronic or catastrophic storm caused an
overflow from a facility that had been
designed, constructed, and operated to
contain manure, process wastewater and
runoff resulting from  a 25-year,  24-hour
storm. Fc-r permitted facilities where the
ELGs did not apply (those with  fewer
than 1,000 AU), technology-based
discharge limits were established using
the permit writer's best professional
judgment.
C. USDA-EPA Unified National Strategy
for Animal Feeding Operations
  In 1998, EPA and USDA jointly
developed a unified national strategy to
minimize the water quality and public
health impacts of AFOs. EPA and; USDA
jointly published a draft Unified
National Strategy for Animal Feeding
Operations on September 21,1998.
After sponsoring and participating in 11
public listening sessions and
considering public comments on the
draft strategy, a final Unified National
Strategy for Animal Feeding Operations
was published on March 9,1999. A
copy of the Strategy is available on the
EPA and USDA web sites. The Unified
National Strategy for Animal Feeding
Operations established national goals
and performance expectations for all
AFOs. The general goal is for AFO
owners  and operators to take actions to
minimize water pollution from
confinement facilities and land where
manure is applied. To accomplish this
goal, the Strategy established a national
performance expectation that all AFOs
should develop and implement
technically sound, economically
feasible, and site-specific CNMPsito
minimize impacts on water quality and
public health.
  The Unified National Strategy for
Animal Feeding Operations identified
seven strategic issues that should :be
addressed to better resolve concerns
associated with AFOs. These are (1)
fostering CNMP development and
implementation; (2) accelerating
voluntary, incentive-based programs; (3)
implementing and improving the;
existing regulatory program; (4)
coordinating research, technical
innovation, compliance assistance, and
technology transfer; (5) encouraging
industry leadership; (6) increasing .data
coordination; and (7) establishing better
performance measures and greater
accountability. Today's action addresses
the third strategic issue— implementing
and improving the existing regulatory
program.
III. How Was This Final Rule
Developed?
  The preamble to the proposed rule
presented a detailed discussion of the
history of EPA actions addressing
CAFOs, including issuance of the
original NPDES CAFO regulations and
effluent limitations guidelines (ELGs)
for feedlots, development of the EPA/
State Feedlot Workgroup Report (1993),
outreach dialogues with representatives
of the pork industry and poultry
industry, EPA AFO strategy     •
development, and collaboration with
USDA on the development of the

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           Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations     7187
 Unified National Strategy for Animal
 Feeding Operations (66 FR 2965). The
 discussion below briefly summarizes
 the key events that have been part of the
 process of preparing today's final rule.
 A. Small Business Advocacy Review
 (SBAR) Panel
  To address small business concerns,
 EPA's Small Business Advocacy
 Chairperson convened a  Small Business
 Advocacy Review (SBAR) Panel under
 section 609(b) of the Regulatory
 Flexibility Act (RFA) as amended by the
 Small Business Regulatory Enforcement
 Fairness Act (SBKEFA). Participants
 included representatives of EPA, the
 Small Business Administration (SBA)
 and the Office of Management and
 Budget (OMB). "Small Entity
 Representatives" (SERs), who advised
 the Panel, included small business
 livestock and poultry producers as well
 as representatives of the major
 commodity and agricultural trade
 associations. Information on the Panel's
 proceedings and recommendations is in
 the April 7,2000, Final Report of the
 Small Business Advocacy Review Panel
 on EPA's Planned Proposed Rule on
 National Pollutant Discharge
 Elimination System (NPDES) and
 Effluent Limitations Guideline (Effluent
 Guidelines) Regulations for •
 Concentrated Animal Feeding
 Operations (hereinafter called the
 "Panel Report"), along with other
 supporting documentation included as
 part of the Panel process. The Panel
 Report details the process that EPA
 followed, provides meeting summaries,
 and offers other information, including
 the composition of both the panel and
 the SERs.
  The report also includes the Panel's
 recommendations on specific issues
 concerning the NPDES CAFO regulation
 and ELGs. Key panel recommendations
 were to: streamline reporting
 requirements; minimize burden of any
 required certifications and testing
 requirements; and carefully weigh the
 costs and benefits of removing the 25-
 year, 24-hour storm exemption for
 operations with less than 1,000 animal
 units and of modifying the specific
 criteria for defining medium-sized AFOs
 as CAFOs. The entire SBAR report is
 available in the administrative record
 for this rulemaking, which is available
 for public review.
 B. Proposed Rule
  On January 12, 2001, EPA published
 a proposal to revise and update two
 regulations to ensure that manure,
wastewater, and other process waters
generated by CAFOs do not impair
water quality (66 FR 2959). These two
regulations were (1) the NPDES
provisions that define which operations
are CAFOs and establish permit
requirements and (2) the ELGs, or
effluent guidelines, for feedlots (beef,
dairy, swine and poultry subcategories),
which establish the technology-based
effluent discharge standards for CAFOs.
Key proposed changes that would affect
the CAFO definition included options
for establishing either two or three size
categories of CAFOs, the thresholds for
different size operations defined as
CAFOs, criteria applicable to medium
operations, inclusion of dry chicken
operations that meet specified size
thresholds, and potential revisions to
the designation criteria and process. In
addition, the proposed rule also
presented options for co-permitting
entities that exercise substantial
operational control over a  CAFO,
ensuring appropriate public
participation in permitting, and
encouraging proper management of
excess manure that is transferred off-
site. Key proposed changes to the ELGs
for feedlots included updating the
guidelines based on current practices
and technologies, the increased use of
BMPs, and application of technology
options to both the CAFO production
area and the land application area
(including nutrient management
planning).

C. 2001 Notice of Data Availability
  On November 21, 2001, EPA
published a Notice of Data Availability
(hereinafter referred to as the "2001
Notice") that presented a summary of
new data and information  submitted to
EPA during the public comment period
on the proposed CAFO regulations,
including data received from USDA (66
FR 58556). The notice had four main
components: (1) Discussion of new data
and changes EPA was considering to
refine its cost and economics model; (2)
discussion of new data and changes
EPA was considering to refine its
nutrient loading and benefits analysis;
(3) new data and changes EPA was
considering to the proposed NPDES
permit program regulations; and (4) new
data and changes EPA was considering
to the proposed ELG regulations. EPA's
2001 Notice also discussed options that
the Agency was considering to enhance
flexibility for the use of State NPDES
and non-NPDES CAFO programs,
including implementation of
environmental management systems
(EMS).

D. 2002 Notice of Data Availability
  On July 23, 2002, EPA published a
second Notice of Data Availability
(hereinafter referred to as the "2002
Notice") that presented a summary of
new data and information submitted to
EPA during the public comment period
on the proposed CAFO regulations,
including data received after
publication of the 2001 Notice. The
2002 Notice had three main
components: (1) A discussion of
alternative regulatory thresholds for
chicken operations using dry litter
management practices; (2) the potential
creation of alternative performance
standards to encourage CAFOs to:
implement new technologies; and (3)
financial data and changes EPA was
considering to refine its economic
analysis models. The  2002 Notice made
these data and potential changes
available for public review and
comment.

E. Public Comments
  A general summary of public
comments is included in the
discussions of the various issues
addressed in this preamble. EPA has
prepared a Comment Response
Document that includes responses to
comments submitted for the proposed  '
rule and both notices. All of the
comments including supporting
documents submitted on today's action
are available for public review in the
administrative record for this final rule
which is filed under docket number W-
00-27.
  The proposed regulations were'
published in the Federal Register on
January 12, 2001 (66 FR 2959), and the
comment period closed on July 30,
2001. EPA received approximately
11,000 comments in total on the
proposed rule. EPA received comments
from a multitude of sources, including
private citizens, facility owners and
operators, environmental groups, local
and State agencies, members of the
academic community, banks and
insurance companies, congressional
representatives, and representatives
(including trade associations)  from each
of the animal sectors (beef, dairy, swine,
poultry, horses, ducks, turkey, and
others). The comments are addressed in
the Comment Response Document
prepared by EPA in support of today's
final rule.
  The comment period for the 2001
Notice was from November 21, 2001,
through January 15, 2002 (66 FR 58556).
Approximately 300 comments were
received on the 2001 Notice. Responses
to each of these comments are also
included in the Comment Response
Document.
  EPA prepared and published in the
Federal Register a second notice (2002
Notice) during the development of
today's final rale. The comment period

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 7188      Federal  Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations
 for the 2002 Notice was from July 23,
 2002, through August 22, 2002.
 Approximately 150 comments were
 received on the 2002 Notice. Responses
 to each of these comments are also
 included in the Comment Response
 Document.
   In addition to the public comments
 received on the proposal and the two
 Notices, approximately 200 additional
 comments on the two Notices were
 received from various stakeholders.
 Responses to each of these comments
 are included in the Comment Response
 Document.

 F. Public Outreach
   In support of both the proposed rule
 and today's final rule, EPA has
 conducted extensive outreach activities.
 These activities are documented in the
 administrative  record for the final rule,
 which is available for public review
 under docket number W-00-27. The
 discussion that follows is focused on
 key outreach activities that EPA has
 conducted.

 1. Pre-Proposal Activities
   During the development of the
 proposed regulations for CAFOs, EPA
 met with many members of the
 stakeholder community through
 meetings, conferences, and site visits.
 EPA convened  a SBAR Panel to address
 small entity concerns, provided
 outreach materials to and met with
 several national organizations
 representing State and local
 governments, and conducted
 approximately 110 site visits to collect
 information on  waste management
 practices at livestock and poultry
 operations. EPA also established a
 workgroup that included representatives
 from USDA, seven States, EPA regions,
 and EPA headquarters. More detailed
 information on  EPA's public outreach
 efforts was published in section XII of
 the Federal Register notice for  the
 proposed rule (66 FR 3120).

 2. Post-Proposal Activities
   a. Public meetings and stakeholder
 outreach. Following publication of the
 proposed rulemaking, EPA conducted
 nine public outreach meetings on the
 proposed CAFO regulations. In
 addition, EPA continued to meet with
 representatives  of various stakeholder
 groups, including representatives from
 various industry trade associations and
 environmental groups, as well as
researchers from select land grant
universities and research organizations.
The land grant university staff consulted
 on this rulemaking included researchers
at the Food and  Agricultural Policy
Research Institute  (FAPRI) at the
 University of Missouri and researchers
 at The National Center for Manure and
 Animal Waste Management, composed
 of researchers from 16 land grant
 universities supported by USDA-
 Cooperative State Research, Education
 and Extension Service (CSREES). EPA
 has also consulted with State and local
 governments and several national
 associations representing State
 governments. A more detailed account
 of these efforts is provided in the 2001
 Notice (66 FR 58557-58558).
   b'. USDA-EPA Workgroup meetings.
 In April 200HLJSDA initiated a process
 to review the proposed revisions to
 EPA's CAFO rule and identify issues
 and concerns posed by the rule. USDA
 identified 15 specific areas of concern
 and a number of overarching issues. As
 a follow-up to this process, USDA and
 EPA's Office of Water initiated monthly
 meetings on issues of significance for
 agriculture and the environment,
 specifically water quality. The goal was
 to foster greater communication
 between the two agencies to provide
 better information to the public and
 policy makers on areas of mutual
 concern related to agriculture and water
 quality, and to facilitate informed
 decisions'on approaches and needs to
 address the key agriculture and
 environment issues. In July 2001 EPA
 and USDA convened a joint workgroup
 to address the issues identified by the
 two agencies and begin to develop
 options for EPA leadership to consider
 in developing the final rule. The
 collaboration fostered increased
 understanding on the part of both
 agencies with respect to the issues, data,
 and analyses used to finalize today's
 CAFO rule.
   c. Other outreach activities. As part of
 the development of this rulemaking,
 EPA used.several additional means to
 provide outreach to stakeholders. Most
 notably, EPA has managed a number of
 Web sites that post information related
 to these regulations. Supporting
 documents for the proposed rule were
 posted to these sites, including the
 Technical Development Document,
 Economic Analysis, Environmental
 Assessment, Environmental and
 Economic\Benefit Analysis of the
 proposed CAFO regulations, and cost
 methodology reports and guidance
 related to Permit Nutrient Plans. These
 are available at http://www.epa.gov/
guide/cafo/. Other outreach materials
 are available at http://www.epa.gov/
 npdes/caforule and include brochures
 describing the proposed CAFO
regulations, a compendium of AFO-
related State program information, and
various materials related to permitting
issues to facilitate an understanding of
 the NPDES program and development of
 comments on the proposed rule by the
 public.

 IV. CAFO Roles and Responsibilities
 A. Who Is Affected by This Rule?

 l.WhatlsanAFO?
   In today's final rule, EPA is retaining
 the definition of an animal feeding
 operation (AFO) as it was defined in the
 1976 regulation at 40 CFR 122.23(b)(l).
 An animal feeding operation means a lot
 or facility (other than an aquatic animal
 production facility) where the following
 conditions are met: (1) 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 (2) crops, vegetation, forage growth,
 or post-harvest residues are not
 sustained in the normal growing season
 over any portion of the lot or facility.
 (Note: EPA is making a typographical
 correction to the AFO definition. The
 comma between vegetation and forage
 growth had been inadvertently dropped
 from the 1976 final rule in subsequent
 printings of the Federal Register).
   What did EPA propose? In the January
 12>2001, proposed rule, the Agency
 proposed to change the definition of an
 AFO, intending to eliminate ambiguities
 about which facilities and operations
 would be defined as AFOs in certain
 circumstances where the animals strip
 the ground of vegetation. The proposal
 stated that" *  * * Animals are not
 considered to be stabled or confined
 •when they are in areas such as pastures
 or rangeland that sustain crops or forage
 growth during the entire time that
 animals are present * *  *."
   What were the key comments? While
 it was EPA's intent to clarify the
 existing AFO definition, the proposed
 new regulatory language created
 substantial confusion. For example,
 many commenters from the beef cattle
 industry and others strongly believed
 that the proposed language would
 include pastures, rangeland, and
 unconfined wintering operations as
 AFOs and, in essence, would bring the
 entire beef industry under the
 regulations, none of which was
 intended. These commenters strongly
 recommended that the existing
 regulations should be kept intact to
 avoid new ambiguity. The view of
 commenters from the dairy sector and
the Sustainable Agriculture Coalition
was that the exclusion of pastureland
and rangeland from the AFO definition
was clear in the proposed rule and  they
found the proposed language
acceptable. Other livestock sectors  and
environmental groups generally did not
comment extensively on this issue.

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           Federal Register/Vol.  68,  No. 29/Wednesday, February 12, 2003/Rules  and Regulations      7189
  Rationale. Based on public comment
and further consideration, EPA
concludes that the proposal to revise the
AFO definition to exclude areas "that
sustain crops or forage growth during
the entire time that animals are present"
created further concern and confusion,
rather than clarification. EPA's intent
was to make a minor change to the AFO
definition to clarify how it would apply
to wintering/grazing operations and to
incidental vegetation that may exist in
the area of confinement. EPA is
retaining the existing definition for
animal feeding operation because of the
widespread familiarity that exists with
the existing definition and because
EPA's desired clarification can be
achieved through preamble language
rather than a change to the rule.
  In an attempt to address some of the
public comments and confusion created
by the proposal, EPA is clarifying three
topics in this preamble. First, EPA is
reiterating that true pasture and
rangeland operations are not considered
AFOs, because operations are not AFOs
where the animals are in areas such as
pastures, croplands or rangelands that
sustain crops or forage growth during
the normal growing season. In some
pasture based operations, animals may
freely wander in and out of particular
areas for food or shelter; this is not
considered confinement. However,
pasture and grazing-based operations
may also have confinement areas (e.g.
fcedlots, barns,  pens) that may qualify
as an AFO. Second, incidental
vegetation in a clear area of
confinement, such as a feedlot or pen,
would not exclude an operation from
meeting the definition of an AFO. Third,
in the case of a winter feedlot, the "no
vegetation" criterion in the AFO
definition is meant to be evaluated
during the winter, when the animals are
confined. Therefore, use of a winter
feedlot to grow  crops or other vegetation
during periods of the year when animals
are not confined would not exclude the
feedlot from meeting the definition of an
AFO. Note that  animals must be stabled
or confined for at least 45 days out of
any 12 month period to qualify the
operation as an AFO. EPA assumes that
AFOs and permitting authorities will
use common sense and sound
judgement in applying this definition.
2.WhatIsaCAFO?
  In today's final rule, EPA is retaining
the existing structure for determining
which AFOs are CAFOs, as well as
retaining the existing conditions for
defining Medium CAFOs. EPA is also
retaining the existing conditions for
designation of AFOs as CAFOs. Large
facilities are considered CAFOs if they
fall within the size range provided in
§ 123.23(b)(4). Medium AFOs are
defined as CAFOs only if they fall
within the size range provided in
§ 122.23(b)(6) and they meet one of the
two specific criteria governing the
method of discharge: (1) Pollutants are
discharged into waters of the United
States through a man-made ditch,
flushing system, or other similar man-
made device; or (2) pollutants are
discharged directly into waters of the
United States that originate outside the
facility and pass over, across, or through
the facility or otherwise come into
direct contact with the confined
animals. Small facilities are CAFOs only
if they are so designated by EPA or the
State NPDES permitting authority. Refer
to Table 4.1 in section IV.A.3 of this
preamble for explicit definitions of
Large, Medium, and Small CAFOs in
each animal sector. Also, as proposed,
EPA is no longer using the term "animal
units" to define size classes in this final
rule. Instead, EPA is setting thresholds
by specifying the actual number of
animals. EPA believes that using the
number of animals at an operation to
define thresholds more simply
illustrates which operations are
regulated. Using the number of animals
also eliminates any confusion caused by
the difference between EPA's and
USDA's definitions of the term "animal
unit."
  What did EPA propose? EPA co-
proposed two alternative ways to
structure the NPDES regulations for
defining which AFOs are CAFOs. The
first alternative was a "two-tier
structure," and the second was a "three-
tier structure." In the first alternative,
EPA proposed that all AFOs with the
equivalent of 500 animal units or more
would be defined as CAFOs, and those
with fewer than the equivalent of 500
animal units would be CAFOs only if
they are designated as such by EPA or
the State NPDES permitting authority.
In the second alternative, EPA proposed
to retain a three-tier structure whereby
all large operations are CAFOs, medium
operations are CAFOs if they meet
specified risk-of-discharge criteria, and
small operations are CAFOs only if they
are so  designated by EPA or the State
NPDES permitting authority. EPA also
proposed to significantly revise the
conditions whereby a medium AFO
could be denned as a CAFO. Finally,
EPA proposed to require all medium
AFOs to certify to the permitting
authority that they do not meet any of
the conditions for being defined a
CAFO.
   What were the key comments? The
predominance of public comment did
not support the two-tier structure, as
proposed, whereby all operations with
the equivalent of 500 animal units or
more would be CAFOs. Many
commenters opposed such a low
threshold as imposing unnecessary
permitting and engineering costs on
small operations and on operations that.
do not discharge, and would very likely
cause many small operators to go out of
business. Opponents also indicated that
the proposal did not recognize
geographic differences such as arid
regions. Many of those same comments
were, however, supportive of a two-tier
structure if the regulatory threshold was
set at the equivalent of 1,000 animal
units or even 750 animal units, leaving
discretion for the permitting authority to
address all operations below that;
threshold. Conversely, some
commenters indicated that 500 animal
units was too  high, because it did not
address the pollution from smaller
operations in  their region. There was
some preference for a two-tier structure
that regulates all facilities above the
equivalent of  300 AU, believing that all
those operations pose risk to the
environment and should be regulated as
CAFOs.
  Many commenters, including many
State agencies, preferred to retain the
existing three-tier structure because so
many of their existing programs are
based on the three-tier structure  .
established in the 1976 regulations.
They believe it would be very disruptive
to their ongoing programs to have to
change the basic structure of the
regulations that define who is a CAFO.
  Additionally, there was little support
among the commenters for the three-tier
structure, as proposed, with the new set
of broad conditions that were proposed
for redefining which of the medium
facilities would be CAFOs. Many.
commenters believed that the existing
conditions were adequate for addressing
risk of discharge from medium facilities,
and that the proposed new conditions
would be an unnecessary expansion of
who would be considered CAFOs.
Further, many commenters indicated
that the revised conditions did not add
clarity and would not improve
implementation. For example, many
commenters indicated that one of the
proposed conditions, whether an AFO
was within 100 feet of waters of the
United States, did not take  into account
facilities that are implementing BMPs to
control runoff. The condition for
evidence of discharge in the last five
years did not take into account
operations that may have instituted new
practices or corrected problems to
prevent future discharges, especially in
light of the fact that, in the last two or
three years, there has been heightened

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 7190      Federal  Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
 awareness of the impacts of AFOs and
 renewed effort by States to implement
 both regulatory and non-regulatory AFO
 programs. The condition defining a
 facility as a CAFO if it transferred
 excess manure to off-site recipients also
 did not correlate closely enough to
 whether a facility had a risk of
 discharging, especially in arid regions.
   The SBAR Panel did not make a
 recommendation specifically on the
 structure of the CAFO regulations. The
 Panel noted that some States already
 have effective permitting programs for
 CAFOs in place and recommended that
 EPA consider the impact of any new
 requirements on existing State programs
 and include in the proposed rule
 sufficient flexibility to accommodate
 such .programs where they meet the
 minimum requirements of federal
 NPDES regulations. The Panel further
 recommended that EPA continue to
 consult with States in an effort to
 promote compatibility between federal
 and State programs.
   Rationale. The Clean Water Act
 specifically lists CAFOs as point
 sources, and EPA has broad discretion
 under the Act to define that term. In the
 proposal, EPA noted a range of different
 factors that it considered relevant to
 determining which operations should be
 defined as CAFOs.
   EPA has concluded that a three-tier
 structure is preferable to a two-tier
 structure because it is better suited to
 identifying those operations that,
 through a combination of size,
 concentration and potential to
 discharge, are more industrial and point
 source-like in nature and pose the
 greatest risk to water quality and
 therefore are appropriate to define as
 CAFOs. Another important reason to
 retain a three-tier structure is that
 changing to a two-tier structure at this
 point in time would be unnecessarily
 disruptive in the number of States that
 currently have three-tier CAFO
 programs in place. Many of these States
 have had these programs in place for
 over two decades, and they have many
 years of practical experience in
 operating their programs and issuing
 permits based on this existing
 definition. Changing to a two-tier
 structure not only would be disruptive
to the States that are carrying out
existing programs but would also create
an unnecessary need to build a new
understanding of the regulations in the
CAFO industry. For these reasons, a
three-tier structure is preferable even
though it does not have the simplicity
of a two-tier structure.
  Establishing a two-tier structure at a
low threshold, e.g., at either 300 animal
 units or 500 animal units would be
 highly burdensome to permit authorities
 and AFO operators. While some parts of
 the country experience problems from
 concentrations of small facilities, this
 would impose significant costs on the
 regulated community and permit
 authorities in all parts of the country,
 including those areas that do not
 experience these problems. On the other
 hand, while it might seem desirable to
 provide flexibility for States with
 effective non-NPDES programs by
 establishing a threshold on the higher
 end, say at 750 or 1,000 animal units,
 using such a high threshold across-the-
 board would apply equally in States that
 do not have fully developed and
 effective programs to address water
 quality risks posed by operations with
 fewer than 1,000 animal units. This
 could lead to a definition that would not
 appropriately identify those operations
 that are large and concentrated enough
 and pose enough of a risk of discharge
 (taking into account the absence of
 effective State non-NPDES programs in
 some areas) that they should be
 identified as CAFOs. A high threshold
 might also undercut the ability of some
 permit authorities to address water
 quality problems associated with
 smaller facilities, especially in States
 that have restrictions on imposing
 CAFO NPDES requirements that are
 stricter than federal requirements.
   Although the final rule retains the
 three-tier structure for defining who is
 a CAFO, after consideration of the
 public comments, EPA has not adopted
 the new set; of conditions that were
 proposed for defining which medium
 operations are CAFOs. Instead, EPA is
 retaining the two conditions in the
 existing regulations. After careful
 consideration of the comments, EPA
 agrees with those commenters who
 believe that the new set of conditions
 proposed under the three-tier structure
. for determining when a medium facility
 is a CAFO would not necessarily have
 improved the clarity, effectiveness or
 enforceability of the regulations, which
 were the Agency's intended goals. The
 proposed new conditions were an
 attempt to better identify those medium
 operations that are of sufficient size and
 concentration and pose enough of a risk
 of discharge that they should be defined
 as CAFOs. While these conditions may
 have been environmentally protective
 on the whole, they were not finely
 targeted enough to identify the
 operations that meet these criteria;
 instead, EPA now believes that they
would have,caused substantial
permitting burden and imposed costs on
 essentially all operations above 300
 animal units.
   For example, many commenters
 indicated that one of the proposed
 .conditions, whether an AFO was within
 100 feet of waters of the Unites States,
 did not take into account facilities that
 are implementing BMPs to control
 runoff. The condition for evidence of
 discharge in the last five years did not
 take into account operations that may
 have instituted new practices or
 corrected problems to prevent future
 discharges, especially in light of the fact
 that, in the last two or three yearsi there
 has been heightened awareness of the
 impacts of AFOs and renewed effort by
 States to implement both regulatory and
 non-regulatory AFO programs. The
 conditions defining a facility as a:CAFO
 if it did not have a permit nutrient plan
 or if it transferred excess manure to off-
 site recipients also did not correlate
 closely enough to whether a facility had
 a risk of discharging, especially in arid
 regions.
   EPA has concluded that retaining the
 existing two criteria provide an
 appropriate basis for defining which
 medium-size operations are CAFOs,
 while maintaining flexibility for States
 to tailor NPDES and non-NPDES
 programs for more comprehensive risk
 factors that may vary from State to State
 and even watershed to watershed.

 3. What Types of Animals Are Covered
 by Today's Rule?

  Today's revisions to the CAFO .
 effluent guidelines address beef, dairy,
 swine, veal calves and poultry
 operations and do not change the:
 effluent guidelines regulations for
 sheep, horses or ducks. On the other
 hand, today's final revisions to the
 NPDES permit regulations generally
 apply to  all CAFOs regardless of
 species, and specifically address the
 size thresholds for defining which beef,
 dairy, swine, veal calves, poultry, sheep,
 horses, and duck operations are CAFOs.
 The following sections discuss changes
 made to the size thresholds for defining
 which operations in these sectors: are
 CAFOs.
  Although the following discussion
 focuses primarily on circumstances
 where an AFO is defined as a CAFO, it
 is important to note that small and
 medium-size AFOs can be designated as
 CAFOs by EPA or an NPDES authorized
 State. Refer to section IV.A. 7 and J8 for
 a discussion of designation.
  The thresholds for defining Large,
Medium, and Small CAFOs in each
sector are summarized in Table 4,1
below.

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          Federal Register/Vol.  68,  No. 29/Wednesday, February 12, 2003/Rules and Regulations      7191
                       TABLE 4.1.—SUMMARY OF CAFO SIZE THRESHOLDS FOR ALL SECTORS
Sector




Swlns (weighing Isss than 55 pounds) 	



Laying hens or broilers (liquid manure handling sys-
tem).
Chickens other than laying hens (other than a liquid
manure handling system).
Laying hens (other than a liquid manure handling sys-
tem).
Ducks (other than a liquid manure handling system) ...
Ducks (liquid manure handling system) 	
Large
1 000 or more 	
700 or more 	
1,000 or more 	
2,500 or more 	
10,000 or more 	
500 or more 	
10 000 or more 	
55 000 or more 	
30,000 or more 	
125 000 or more


5,000 or more 	
Medium 1
300-999 	
200-699 	
300-999 	
750-2,499 	
3,000-9,999 	
150-499 	
3,000-9,999 	
16,500-54,999 	
9,000-29,999 	
37,500-124,999 	 	 	
25000-81,999 	
10000-29,999 	
1,500-4,999 	
Small2
Less than 300.
Less than 200.
Less than 300.
Less than 750.
Less than 3,000.
Less than 150
Less than 3,000.
Less than 16,500.
Less than 9,000.
Less than 37,500.
Less than 25,000.
Less than 10,000.
Less than 1,500.
  1 Must also meet one of two "method of discharge" criteria to be defined as a CAFO or may be designated.
  2 Never a CAFO by regulatory definition, but may be designated as a CAFO on a case-by-case basis.
  A facility confining any other animal
type that is not explicitly mentioned in'
the NPDES and effluent guidelines
regulations is still subject to NPDES
permitting requirements if it meets the
definition of an AFO and if the
permitting authority designates it as a
CAFO. See § 122.23(c) for a discussion
of designation.
  a. Chickens. In today's action, EPA is
revising the CAFO definition to include
chicken operations that use manure
handling systems other than liquid
manure handling systems (see 40 CFR
Part 122, Appendix B of the 1976
regulation). EPA has also eliminated the
condition for continuous overflow
watering system from the CAFO
definition. This action establishes that
dry litter chicken operations of specified
sizes will need to seek coverage under
an NPDES CAFO permit. EPA is
establishing size thresholds for dry
chicken operations based on the
phosphorus content of the manure, and
is therefore distinguishing between
broiler and layer operations. EPAiis not
changing the existing threshold for
chicken operations using liquid manure
systems. The size thresholds for large,
medium, and small chicken operations
under today's regulations are as follows:

Chickens other than laying hens (other than liquid manure
handling).
Laying hens or broilers (liquid manure handling) 	
Large
125 000 or more
82 000 or more 	
30,000 or more 	
Medium
37500-124,999 	
25,000-81,999 	
9,000-29,999 	
Small
<37,500
<25,000
< 9,000
  What did EPA propose? EPA
proposed to regulate chicken operations
regardless of the type of manure
handling or watering system used. EPA
proposed to include broilers and layers
in a single category with one threshold
number. Under the co-proposed three-
tier structure, EPA proposed to adopt a
Large CAFO threshold of 100,000
chickens and a Medium CAFO
threshold of 30,000 chickens. In the co-
proposed two-tier structure, the
regulatory threshold would have been
50,000 chickens. Subsequently, EPA
published a notice of data availability
(FR 67, 48099, July 23, 2002) in which
the Agency considered whether, under
a three-tier structure, the threshold for
large broiler operations should remain
as proposed at 100,000 broilers, changed
to 125,000 broilers, or established at
some other threshold. EPA also
considered whether the large threshold
for laying hens should remain as
proposed at 100,000 laying hens, or be
changed to 82,000 laying hens. EPA also
noted that the thresholds in the 1976
CAFO regulations for chicken
operations with liquid manure handling
systems or continuous overflow
watering systems may remain
unchanged in the final rule.
   What were the key comments?
Comments from poultry industry
representatives and owners and
operators of poultry operations stated
that dry operations (those not using
continuous flow watering systems)
should not be defined as CAFOs under
the NPDES regulations because the
absence of water or other liquids would
not result in pollutants being discharged
through a discrete point source. Some
industry representatives asserted that
dry and wet manure handling pose
different levels of risk and, therefore,
EPA's CAFO regulations should
distinguish between wet and dry
poultry operations. A few commenters
indicated that they felt that EPA was
proposing to regulate dry poultry
operations to address insufficient
storage issues at some operations. These
commenters believed that properly
stored poultry litter would not result in
a discharge. In addition some
commenters disagreed with EPA's
statement that many poultry operations
did not have sufficient land to apply
litter at agronomic rates. Commenters
from this sector also felt that voluntary
programs were working to address the
excess manure issue. A more limited
number of commenters indicated that
the inclusion of dry poultry operations
should be limited to what they
described as very large operations.
Commenters defined very large as
ranging from more than six house's to
more than 10,000 animal units (e.g.,
300,000 birds).
  Many other commenters supported
regulating poultry operations regardless
of the watering systems they use
because that approach provides equity
across all animal sectors and addresses
potential risk to water quality posed by
dry operations. Some commenters

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 7192     Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
further stated that EPA should use
manure phosphorus as the basis for
setting thresholds for such operations.
  Rationale. Why is EPA including
chicken operations with dry manure
and litter handling systems in today's
regulations? For some time, poultry
operators have been replacing
continuous overflow watering systems
by more efficient water conserving
methods (e.g., on-demand watering).
Given this trend, liquid manure systems
are used at approximately 25 percent of
layer operations and are not generally
used at broiler operations. As a result,
most chicken operations are not covered
by the existing regulations.
  For the reasons articulated in the
proposed rulemaking (66 FR 3010), and
after carefully reviewing the public
comments, EPA has determined that
including chicken operations with dry
manure handling systems is justified to
protect water quality. EPA believes that
dry poultry operations continue to
contaminate surface water and ground
water because of rainfall coming in
contact with dry manure and litter that
is stacked in exposed areas; accidental
spills such as from egg-wash facilities
and drinking water lines; improper
handling of large numbers of
mortalities; and improper land
application of litter. In addition,
included within the coverage of the
CAFO regulations are other sectors that
use dry technologies, such as ducks,
turkeys, and certain swine, beef, and
dairy operations using total confinement
housing. Inclusion of dry poultry
operations is consistent with the
regulation of both wet and dry
operations within these other animal
sectors.
  Why were the size thresholds
selected? EPA believes that it is
appropriate to distinguish between
potential risk of discharge posed by wet
versus dry handling systems, using the
pollutant of most concern, i.e.
phosphorus, for establishing regulatory
thresholds. For nitrogen and BOD, the
levels for broilers would result in
similar thresholds varying only by 1%
to 3%. EPA agrees with commenters
who asserted that EPA should
determine the chicken threshold values
by evaluating phosphorus content in the
manure on an annual basis, which takes
into account that phosphorus
production does not continue during the
periods of the year when no manure is
generated (i.e., clean out time between
flocks when no  broilers are present).
Traditionally, layers were kept through
one year of egg production and  sold for
meat at 18 to 20 months of age (see
Section 4 of the Technical Development
Document). Depending on the relative
price of eggs to hens, it has become
increasingly common to recycle layers
through more than one year of
production. Flock recycling consists of
stopping the flock's egg production,
allowing a suitable rest period, and then
bringing the flock back into production.
The entire process is known as "force-
molting". Some producers now keep the
birds through two or three complete
cycles of egg production. Laying hens
are now typically kept for 94 weeks of
production. Since layers will continue
to produce manure throughout the year
the daily phosphorus levels were used
in setting thresholds for laying hens.
Therefore, EPA is establishing different
thresholds based first on wet versus dry
manure systems and second on the
broad type^ of poultry, e.g., chickens for
meat (broilers) and chickens for eggs
(layers) based on phosphorus content of
manure generation.
  b. Swine Nurseries and Heifer
Operations. Today's rule regulates
swine nurseries and heifer operations
that are defined as CAFOs. Specifically,
the Agency has adopted a Large CAFO
threshold of 10,000 or more immature
swine (i.e. Weighing less than 55
pounds) and a Medium CAFO threshold
of 3,000 to 9,999 immature swine. For
heifers, EPA has adopted a Large CAFO
threshold of 1,000 head or more and a
Medium CAFO threshold of 300 to 999
head.
  What did EPA propose? EPA is
adopting what was proposed for these
animal types in a three-tier structure.
  What wejre the key comments? While
a majority pf commenters supported the
inclusion qf immature  swine and dairy
cattle in the proposed rule, a number of
commenters opposed this  change, and
preferred to retain the exemption for
immature animals. A number of
commenters noted that many States
already have programs at least as strict
as the one EPA is proposing, and that
States should be allowed the flexibility
to determine if including operations
with immature animals would improve
water quality.
  Rationale. Immature swine were not a
concern in;the past because they were
usually part of operations that included
mature animals and, therefore, their
manure was included in the permit
requirements of the CAFO. However, in
recent years, these swine operations
have become increasingly  specialized,
increasing the number  of large, separate
nurseries where only immature swine
are raised.
  Under the three-phase production
pyramids used by most large swine
operations, specialized farrowing
operations that house only sows and
piglets until weaned represent the first
phase of raising swine. The weaned
piglets are transferred to a nursery at a
separate location until they reach, about
55 to 60 pounds, at which time they are
transferred to a grow-finish facility at
another site. EPA's thresholds for swine
weighing less than 55 Ibs were
established on the basis of the average
phosphorus excreted from immature
swine in comparison to the average
phosphorus excreted from swine
weighing more than 55 pounds. (Refer
to the Technical Development
Document for more details).
  For dairies, immature heifers are often
removed to a separate location until
they reach maturity. EPA data indicate
that some of these animals are confined,
some are pastured, and some move back
and forth between confinement and
pasture. The previous CAFO  definition
considered only the mature milking
cows in determining whether an
operation  was a CAFO and did not
address operations that separately
confine immature heifers. EPA believes
that these  separately confined heifer
operations should be included in'the
regulatory definition of a CAFO because
they may generate as much manure as
a CAFO dairy given that the animals are
maintained until fully grown, and they
confine the animals in a manner very
similar to  CAFO beef feedlots.
  EPA agrees that the number of .
immature  animals kept in confinement
with mature animals varies greatly and
should not be the basis for determining
whether an AFO is a CAFO. In
situations  where immature animals (e.g.
heifers and swine) are confined with
mature animals, the immature animals
are not counted for purposes  of
determining whether an AFO is defined
as a CAFO based on the number qf
mature animals. Once an AFO is
defined as a CAFO, based on  any of the
threshold values provided in  table 4.1,
manure and process wastewater
generated by all immature and mature
animals in confinement would be
subject to NPDES permit requirements.
  c. Horses. Today's rule retains the
animal number thresholds for defining
which horse operations are CAFds.
AFOs with 500 or more horses are
defined as Large CAFOs, AFOs with 150
to 499 horses are defined as Medium
CAFOs under certain conditions (see
§ 122.23(b)(7)), and AFOs with feiver
than 150 horses are Small CAFOs. only
if designated in accordance with
§122.23(c).
  What did EPA propose? In the
January, 2001 proposed rule,  EPA did
not consider changing the CAFO .
definition  thresholds for horses. As a
result of the comments and data
received on the proposal, EPA

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           Federal Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations      7193
considered in a subsequent Notice of
Data Availability (66 FR 58556,
November 21, 2001) two alternative
options for revising the horse
thresholds. One option would retain the
existing regulatory threshold in a two-
tier structure. For example, if the
regulatory threshold was dropped to 500
AU, EPA would retain 500 horses as the
500 AU equivalent, and those with
fewer than 500 horses would be CAFOs
only if so designated on a case-by-case
basis. EPA suggested this option
because the Agency agreed with
commonters that there was no need to
increase regulation of this sector; by
maintaining the status quo EPA would
be neither increasing  nor decreasing the
regulated universe. In the second
option, EPA would have set one horse
equal to one beef cow thereby establish
regulatory thresholds similar to those
for beef operations. As a result, in a
three-tier structure, Large horse CAFOs
would have  1,000 animals or more, and
Medium  horse CAFOs would have 300-
999 horses. EPA presented the second
option after examining data submitted
by industry that suggested that a 1,000
pound horse may generate similar
manure as a 1,000 pound beef cow.
However, because that data did not
differentiate thoroughbred race horses
(typically on high-energy feed which
might alter manure composition) from
other horses, EPA requested more
definitive data to justify the second
approach.
  What were the key comments? A
number of comments were submitted by
horse industry associations and
individual horse operations requesting
that EPA not lower the threshold for
horses, as the existing regulation was
adequate. They further suggested that
this rulemaking would be an
opportunity to revisit the basis for the
existing threshold, and requested that
EPA change it to one  horse being equal
to one beef cattle, asserting that there is
no scientific basis for making one horse
equal to two beef cattle (which is how
the existing regulation defines horse
CAFOs).  Industry representatives
provided data on manure content to
support their position, although they
diet not provide manure data specific to
racehorses. The commenters also
explained that the horse industry is
fundamentally different in how it is
organized and operated from the other
sectors that focus on food production,
and that this sector has not seen the
kinds of changes (e.g., expansion and
consolidation) that EPA is seeking to
address in today's rule. Further, they
point out that most large racetracks are
in urban  areas and are currently subject
to a variety of EPA-initiated and State-
administered programs related to water
pollution and storm water runoff
control.
  Some commenters requested that EPA
not reduce the regulatory thresholds,
and asked EPA to retain the ability of
permit writers to use BPJ to establish
site-specific BMPs. Industry
representatives also asked the Agency to
clarify that confinement pertains to
stalls or similar structures in buildings
and not to fenced areas, and that it does
not include short visits to stalls for
shoeing, veterinary evaluation, or
related activities.
  Rationale. It should be noted that the
thresholds for the CAFO definition refer
only to horse operations where animals
are confined for 45 days (non-
consecutive) over a 12 month period.
Thus, to be considered a Large CAFO,
the operation would need to confine 500
horses at one time for 45 days or longer
in a 12-month period, and to be a
Medium CAFO at least 150 horses
would need to be confined for 45 days
or longer in a 12-month period. The
areas associated with confinement at
horse facilities would constitute the
production area, and would not include
pastures and other unconfined areas.
EPA notes the 1974 ELG for horses
assumed the majority of horse CAFOs
were racetracks. Although race tracks
accounted for less than 0.1 percent of all
horse operations today, race tracks still
account for more than 96% of all horse
operations with 500 horses or more.
Boarding/training  stables comprise the
remaining few operations with 500
horses or more. Such operations would
not be considered  CAFOs unless all of
the horses were kept in confinement (as
opposed to pasture). Data suggests most
horse operations confine their animals
for short-term stabling or visits to stalls
for shoeing, veterinary evaluation, or
related activities. However, according to
consultations with the American Horse
Council, it is unlikely that these visits
would involve a number of horses large
enough to define the operation as a
CAFO. For example, a ranch
maintaining over 500 horses would
typically have fewer than 100 stalls or
stables [i.e. confinement areas).
Therefore, those operations that confine
enough horses for a long enough period
to be defined as CAFOs are generally
racetracks.
  In the 1970s regulations, the Agency
considered racetracks when originally
determining the size of an operation that
must comply with the effluent
guidelines, and the records indicate the
size  of operation was based on the
manure generated by thoroughbred
racehorses. Based  on some comments
that EPA should re-evaluate the
classification of horses by bodyweight
or manure content, EPA collected more
current manure characteristics data from
ASAE, USDA, and based on this data
presented alternative thresholds for
horses in the 2001 NODA (see 66 FR
225, page 58595). After reviewing the
data, EPA generally agrees that the
phosphorus content of horse manure is
similar to that of a beef cow. However,
as described above, the majority of horse
CAFOs are racetracks, and the more
general data on recreational and work
horses is not comparable. The Agency
also reviewed the data submitted by
horse industry representatives and
determined that this data also did not
distinguish manure generated by
racehorses with that of a recreational or
farm horse, and thus EPA does not
believe the record is sufficient to justify
a change to the existing regulatory
thresholds.
  The effluent guideline, which is not
being changed in today's final
rulemaking, continues to be applicable
to those horse operations confining 500
horses or more, including stables such
as at racetrack operations. Other horse
operations that may be defined or
designated as CAFOs would continue to
follow permit requirements based on the
BPJ of tifcie permitting authority.
  d. Ducks. Today's final rulemaking
revises the thresholds for defining
whether a duck operation is a CAFO.
The following thresholds apply to duck
operations where the AFO uses other
than a liquid manure handling system
("dry systems"): 30,000 or more ducks
for a Large CAFO and 10,000 to 29,999
ducks for a Medium CAFO. For small
operations with fewer than 10,000
ducks, EPA or the State permitting
authority may designate them as a
CAFO. For operations where the AFO
uses a liquid manure handling system
("wet systems"), EPA is retaining; the
existing thresholds. That is, those with
5,000 or more ducks are considered
Large CAFOs; those with 1,500 to; 4,999
ducks may be Medium CAFOs (if the
other conditions are met); and sm'all
operations with fewer than 1,500 ducks
would become CAFOs only if
designated in accordance with
§122.23(c).
  What did EPA propose? In the
January, 2001 proposed rule, EPA did
not consider changing the existing
animal unit equivalents for ducks. As a
result of comments received on the
proposal, EPA considered in a
subsequent 2001 Notice of Data
Availability (NODA) (66 FR 58566,
November 21, 2001) two alternative
options for establishing thresholds for
duck operations. One option would treat

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7194      Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
dry systems similarly to chicken
operations (e.g., at the time of the
NODA, EPA was considering 100,000
ducks would have constituted a Large
CAFO). Another option would establish
a Large CAFO threshold of 30,000 ducks
based on the quantity and content of
duck manure, using data and
recommendations supplied by Purdue
University. In all cases, the threshold for
Large CAFOs with wet systems would
remain at 5,000 ducks.
  What were the key comments? A
number of commenters on both the
proposal and the NODA from duck
industry associations, individual duck
operations and some States requested
that EPA change the threshold in the
CAFO definition for ducks. They urged
EPA to consider revising the duck
thresholds to a higher number. By
retaining the 5,000 duck threshold, they
noted, essentially all duck operations in
the United States would be required to
apply for an NPDES permit.
Commenters noted that management
practices have changed significantly
since the 5,000 duck threshold was
established. The management practices
currently used to raise ducks are similar
to chicken operations. Commenters
claim that these dry facilities should be
regulated like chicken operations,
basing the threshold either on
phosphorus manure levels or using a
threshold similar to chickens. State
commenters agree that the threshold for
these types of facilities should be raised
but suggest retaining the existing
threshold for wet systems.
  Rationale. The existing NPDES
regulation and the effluent guideline
make no distinction between dry and
wet systems. The duck thresholds were
originally established in the 1970s and
were based primarily on  ducks being
raised outside on ponds or with a
stream running through an open lot.
These types of facilities have been
referred to as "wet" lot operations.
Today's regulation refers to them as
AFOs that use liquid manure handling
systems. This preamble also refers to
them as "wet systems." For purposes of
today's rulemaking, these include duck
operations that use ponds, wet lots, or
buildings with lagoons.
  EPA agrees with commenters that the
management practices more typically
used today to raise ducks are similar to
chicken operations where the birds are
confined to a building on solid bedding
or in a building with a concrete pit
underneath it where manure collects.
These types of facilities have been
referred to as "dry lot" operations.
Where these practices are utilized, and
are not combined with liquid manure
handling systems, such as lagoons, they
present much less risk of a discharge
than do wet systems. Today's regulation
refers to them as AFOs that use "other
than liquid manure handling systems."
This preamble also refers to them as
"dry systems."
  After examining information
concerning the current technologies of
the duck industry, EPA concurs that it
is appropriate to adjust the regulatory
thresholds for dry systems, while
retaining the .existing threshold for wet
systems. EPA is setting the Large CAFO
threshold for duck operations with dry
systems at 30,000 birds or more based
on data produced by Purdue University
and the American Society of Agriculture
Engineers (ASAE), which are available
in the administrative record. This
threshold was calculated using
phosphorus manure levels and
assuming an approximate  3 duck to 1
chicken ratio. The medium size
threshold is 10,000 to 29,999 ducks and
the small threshold is less than 10,000
ducks. These thresholds were set at
these levels based on the same 3  duck
to 1 chicken ratio. Data on both layer
and broiler chickens were averaged to
obtain this ratio. This threshold is
generally consistent with the thresholds
adopted in current State programs,
especially Indiana where the majority of
the duck operations are located. This
decision is also consistent with today's
final decision on the chicken threshold,
where EPA has established higher
thresholds for layer operations using
other than liquid manure handling
systems thali for layer operations using
liquid manure handling systems.
  e. Cow/Calf. In today's final rule, a
beef cow/calf pair counts as one animal
when temporarily confined in a pen, lot,
barn, or stable. However, a cow/calf pair
counts as two animals after the offspring
are weaned;
  What did EPA propose? The proposed
rule did not discuss a convention to
count cow/calf pairs. In response to
comments from the beef industry, EPA   .
described a ^convention in the November
2001 NODA to count a cow/calf pair as
one animal for 120 days after the calf is
weaned, after which they would be
considered two animals.
  What were the key comments?
Comments on the proposal from
organizations and individuals
representing the beef sector indicated
that they thought the proposal would
alter the way mature and immature beef
cow pairs are counted. They commented
that if a cow/calf pair was counted as
two animals, the proposed rule would
have a significant impact on small beef
operations that are largely pasture-
based. Environmental organizations
generally did not comment on this
issue.
  In comments on the 2001 Notice,
States and industry commenters
unanimously supported the proposal to
explicitly count a cow/calf pair as one
animal. Many commenters said that, in
practice, producers think of the cow and
calf as a single entity until weaning time
when the young animal becomes ;
physically separated and requires
separate penning and housing, and
suggested adopting this standard. Some
commenters suggested other
alternatives, such as counting a cow/calf
pair as 1.2 animal units, or
differentiating the AU equivalent;based
on the age of the calves (e.g., up to two
months old the cow/calf would be
counted as one animal unit, from-two to
six months calves would be counted as
0.3, from six months to a year counted
as 0.6, etc.)
  Rationale. As described in the  2001
Notice, EPA has always assumed that
cow/calf operations are typically
pasture-based and would not normally
fall within the coverage of the CAFO
regulations. Such operations typically
confine animals only temporarily for
birthing, veterinary care, or other
purposes. This temporary confinement
may result in the operation being
defined as an AFO, in which case it
could in turn be defined as a CAFO
should it meet certain conditions.
However, it is not likely that this
temporary confinement would involve
enough animals to define the operation
as a CAFO. EPA would like to make it
clear that it is still not the Agency's
intention to regulate pasture-based or
rangeland operations. Counting a cow/
calf pair as one animal is consistent
with how EPA treats mother/offspring
pairs housed together at the same
location in other sectors (e.g.,. dairy and
swine).
  After considering public comment,
EPA determined that it was appropriate
to consider a cow/calf pair as one!
animal until the calf is weaned, rather
than to specify a particular time period
after weaning, which would have
entailed additional, potentially
burdensome, record keeping
requirements (e.g. date of weaning for
each calf).
  /. Eliminate the mixed animal
calculation. With today's final
rulemaking, EPA is eliminating the
formula for calculating whether an AFO
is a CAFO because of the accumulation
of several different animal types  in
confinement at one facility. An AFO is
defined as a CAFO only if the specific
threshold for any one animal sector
covered by today's final regulations is
met. Once a given operation is defined

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           Federal Register/Vol. 68, No.  29 / Wednesday, February 12, 2003/Rules and Regulations      7195
as a CAFO, regardless of animal type,
the regulations apply to all of the
manure, litter, and wastewater
generated by the operation. In the event
that waste streams from multiple
livestock species are co-mingled, and
the regulatory requirements for each
species are not the same, the permit
must include the more stringent
requirements.
  What did EPA propose? EPA
proposed to eliminate the mixed animal
calculation.
  What were the key comments? A
number of comments were received
concerning the elimination of the mixed
animal calculation. Commenters
opposed to the elimination of the
calculation believe it is more protective
of the environment to count all of the
animals at an operation, in order to
address the cumulative quantities of
manure through the CAFO permit. Some
commenters also claimed that
eliminating the mixed animal
calculation would create an opportunity
for larger operations to avoid permitting
by maintaining slightly fewer than the
regulatory thresholds for several types
of animals. Comments supporting EPA's
proposal agreed that this change
simplifies the regulation, provides relief
to small farms, and focuses the
regulation on the larger, more
specialized facilities that tend to be
more industrialized.
  Rationale. As described in the
proposed rulemaking (66 FR 3005) EPA
is eliminating the  mixed animal
calculation for several reasons. First,
this action simplifies the regulations. In
addition, EPA's analysis indicates that
the mixed animal  calculation would
have caused only a small fraction of the
smaller AFOs to have been defined as
CAFOs, so the Agency believes that this
action does not materially change the
scope of coverage  of this regulation. To
the extent that coverage is changed at
all, it appropriately would be shifted
away from smaller operations that tend
to have more sustainable practices and
sufficient crop land for land application
of their manure nutrients. Should an
AFO widi mixed animals types be found
to be a significant  contributor of
pollutants to waters of the United
States, it could still be designated a
CAFO in accordance with the
designation provisions of this final rule.
4. Is My AFO a CAFO If It Discharges
Only During Large Storm Events?
  Today's final rule defines an
operation as a CAFO regardless of
whether the operation discharges only
in the event of a large storm. In other
words, today's final rule eliminates the
25-year,
24-hour storm permitting exemption for
defining a CAFO. EPA notes, however,
that the 25-year, 24-hour storm design
criterion in the ELGs for large CAFOs is
not being changed, except for new
sources in the swine, veal, and poultry
sectors [see preamble section IV.C.2)
  What did EPA propose? EPA
proposed to eliminate the 25-year, 24-
hour storm event exemption from the
definition of a CAFO.
  What were the key comments?
Comments from the animal agriculture
industry were generally opposed to
eliminating the permit exemption. Their
position was that facilities that
discharge only as a result of a storm
event that exceeds a 25-year, 24-hour
storm should not be covered by  an
NPDES permit. Environmental
organizations and others supported the
elimination of the exemption based on
the position that it was not being used
appropriately by the industry. States
were split on whether to eliminate the
exemption, depending largely on their
current regulatory policy. Many
commenters confused the proposed
elimination of this exemption with
consideration of the appropriate design
standard for permitted facilities.
  The SBAR Panel agreed that removing
the 25-year, 24-hour exemption  was
generally appropriate for Large CAFOs
because of the significant potential for
environmental harm from Large CAFOs
when the manure is not properly
managed. The Panel also recognized
that, under the terms of the proposal,
eliminating the exemption would mean
that some facilities would need to apply
for a permit even though they have
sufficient manure management and
containment in place or, for some other
reason, do not discharge except  in a
25-year, 24-hour storm.
  The Panel recommended that EPA
consider reduced application
requirements for small operators
affected by the removal of the
exemption. In the proposed rule EPA
requested comment on whether to retain
this exemption for small facilities as
well as how many animals would be
considered "small" for this purpose.
The Agency carefully analyzed these
issues during the development of this
final rule.
  Rationale. For the reasons stated in
the proposal (66 FR 3006), and based on
EPA's analysis of comments and other
information, the Agency continues to
believe that the 25-year, 24-hour storm
permit exemption has created confusion
and ambiguity that undermines  the
ability  of permitting authorities  to
implement the CAFO regulations
effectively. Eliminating this provision
will:. (1) Ensure that all Large CAFOs are
appropriately permitted; (2) ensure
through permitting that facilities are, in
fact, properly designed, constructed,
operated, and maintained to contain
manure and the rainfall associated with
a 25-year, 24-hour storm event or [the
revised standard for new sources in the
swine, veal calf, and poultry sectors; (3)
improve the ability of EPA and State
permit authorities to monitor
compliance; (4) ensure that facilities do
not discharge pollutants from their
production areas and that they land
apply manure, litter, or process
wastewater in accordance with site
specific nutrient management practices
that ensure appropriate agricultural
utilization of the nutrients in the
manure, litter, and process wastewater;
and (5) achieve EPA's goals of
simplifying the regulations, providing
clarity to the regulated community, and
improving the consistency of
implementation.               ;
  The 25-year, 24-hour exemption was
not applicable to operations that became
CAFOs by designation. Since  small
AFOs can only become CAFOs by
designation, the elimination of this
exemption will not affect the universe of
Small CAFOs (refer to section IV.A. 7 for
a discussion of designation).
  Because EPA is not changing the
criteria under which medium facilities
are defined as CAFOs, the elimination
of the 25-year, 24-hour storm permitting
exemption is not expected to    .
significantly affect the universe of
Medium CAFOs either. EPA believes
that at most medium facilities that meet
the existing conditions for being defined
as a CAFO, discharges would most
likely occur not only in the
25-year, 24-hour storm but as a result of
lesser storms as well. For example, a
facility with a pipe or other man-made
conveyance is likely to discharge to
surface water in wet weather, or for that
matter could potentially discharge even
in dry weather. Similarly, a facility that
has a stream or other water of the.
United States running through the
production area meets the definition of
a CAFO and is also likely to discharge
in less than the 25-year, 24-hour storm.
By using the existing criteria, the
Agency does not believe that there will
be a significant increase in the number
of medium facilities defined as CAFOs.
Medium facilities that meet these:
conditions are encouraged to take
advantage of available technical support
and eliminate the conditions thatcause
them to be defined as a CAFO.
  Accordingly, EPA believes that the
Agency has addressed the principal
concerns raised by the SBAR Panel. In
addition, the Agency has taken steps to
reduce the amount of information

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 7196     Federal Register/Vol.  68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
 required as part of the permit
 application process, thereby addressing
 the other concern raised by the Panel.
  In providing comments on the
 proposed rule, a number of commenters
 appear to have confused EPA's proposal
 to eliminate the 25-year, 24-hour storm
 event as a permit exemption with issues
 relating to the design standard for the
 effluent limitation guideline. In this
 final rule, the Agency is eliminating the
 use of the 25-year, 24-hour storm only
 for the purpose of determining who is
 required to be covered by an NPDES
 permit. The Agency is retaining the
 existing design standard for
 containment based on the 25-year,
 24-hour storm event (except for new
 sources in certain animal sectors, as
 discussed elsewhere in this preamble).
  The elimination in today's rule of the
 25-year, 24-hour storm exemption from
 permitting is also  compatible with
 today's requirement for all CAFOs to
 apply for a NPDES permit. In section
 IV.B.1 below, EPA explains the reasons
 for adopting a more comprehensive
 "duty to apply" today, including the
 unique characteristics of CAFOs and the
 zero discharge regulatory approach
 (except for large storm events) that
 applies to them, the historical
 experience showing the lack of
 permitting of Large CAFOs, and the
 need to simplify and clarify the
 applicability of the rule. Retaining the
 25-year, 24-hour storm exemption from
 permitting would  not be compatible
 with these reasons and indeed would
 perpetuate confusion over which
 operations are required to apply for a
 permit.
  Having eliminated the 25-year,
 24-hour storm exemption from
 permitting, today's rule nevertheless
 allows operations  to avoid permitting if"
 they can demonstrate that they truly
 have no potential to discharge (see
 section IV.B.2). However, operations
 that do have the potential to discharge,
 even if just in the 25-year, 24-hour
 storm, may not receive a determination
 of no potential to discharge.

 5. How Are Land Application
Discharges of Manure and Process
Wastewaters at CAFOs Covered by This
Rule?

  Today's rule clarifies that runoff from
the application of CAFO manure, litter,
 or process wastewaters to land that is
under the control of a CAFO is a
discharge from the CAFO and subject to
NPDES permit requirements, except
where it is an agricultural storm water
discharge. All permits for CAFOs must
contain terms and conditions on land
application in order to ensure
 appropriate control of discharges that
 are not agricultural storm water.
   What did EPA propose? EPA
 proposed to define an AFO to include
 both the animal production areas of the
 operation and any land areas under the
 control of the owner or operator on
 which manure and process wastewaters
 are applied/The definition of a CAFO
 is based on the AFO definition and
 therefore would have included the land
 application areas as well. Accordingly,
 a CAFO's permit would include
 requirements to control discharges from
 both its production, area and its land
 application area.
   What were the key comments? A
 number of commenters asserted that
 EPA lacks the authority to include
 permit requirements governing a
 CAFO's land application of manure and
 process wastewaters. They claim
 generally that the runoff from such land
 application is a nonpoint source
 discharge and therefore is not subject to
 NPDES requirements. In particular, they
 argue that because land application
 areas are not places where animals are
 concentrated or fed, there is no basis in
 the Act for including them in the
 definitions of AFO and CAFO. In
 addition, in their view, runoff of CAFO
 manure and; process wastewaters from
 land application areas is excluded from
 the point source definition because it is
 "agricultural storm water." They believe
 that land application runoff is
 appropriately addressed only through
 nonpoint source, voluntary, incentive-
 based programs. Accordingly, these
 commenters! objected to the proposal to
 include land application areas in the
 definition of an AFO and CAFO.
  One commenter also stated that EPA's
 policy reasons for  including land
 application areas in the AFO and CAFO
 definitions are not convincing.
 Excluding land application areas from
 the AFO and CAFO definitions, this
 commenter notes,  does not necessarily
 mean that CAFO generated manure
 could be land applied without concern
 for the environment. For example, as a
 nonpoint source discharge, land
 application discharges would still be
 subject to State controls, the Clean
Water Act nonpoint source program
 (section 319), and the TMDL program.
  In contrast, certain other commenters
 indicated that there is a significant need
to better address manure and related
 discharges from CAFO land application
areas and therefore they agreed with the
proposal to include the land application
areas in the AFO/CAFO definitions.
These commenters stated that this
approach is consistent with recent court
decisions and that addressing land
 application runoff is critical to ensuring
 water quality protection.
   Rationale. EPA noted in the proposal
 that the runoff from land application of
 manure at CAFOs is a major route of
 pollutant discharges from CAFOs; that
 in some regions of the country, the
 amount of nutrients present in land-
 applied manure has the potential to
 exceed the nutrient needs of the crops;
 that areas exist of widespread
 phosphorus saturation of the soils; and
 that research shows a high correlation
 between areas with impaired lakes,
 streams and rivers due to nutrient
 enrichment and areas where there is
 dense livestock and poultry production.
   EPA fundamentally disagrees with
 those, commenters who asserted that the
 Agency lacks authority over land
 application discharges at CAFOs
 because this is an attempt to regulate
 nonpoint source pollution. Under the
 Clean Water Act, the Agency has broad
 discretion to determine what are point
 source discharges from  CAFOs. EPA
 explained in the proposal why it is
 appropriate to clearly specify that land
 application discharges of manure!and
 process wastewater from areas where
 CAFO manure and process wastewaters
 have been overapplied are discharges by
 the CAFO that are subject to NPDES
 requirements rather than being nonpoint
 source discharges. In brief, EPA stated
 in the proposal that the pipes and other
 manure-spreading equipment that
 convey CAFO wastes to the fields are an
 integral part of the CAFO, and so
 discharges from this equipment should
 be considered discharges from the
 CAFO. Further, land application areas
 are integral to CAFO operations, and
 there have been significant discharges in
 the past attributed to land application of
 CAFO wastes. The proposal noted in
 addition that defining CAFOs in this
 way is consistent with EPA's effluent
 limitations guidelines for other
 industries, which consider on-site waste
 treatment systems to be part of the
 production facilities in that the
 regulations restrict discharges from the
 total operation.                ;
  EPA believes that, in explicitly'
 including CAFOs in the definition of a
 point source (CWA Sec. 502(14)),
 Congress intended that discharges of
 manure and process wastewater from a
 CAFO to waters of the U.S. should be
regulated through the NPDES permit
 program. Since one important manner
by which CAFOs may produce such
 discharges is to apply manure and
process wastewater to land areas under
their control, EPA believes that  :
Congress must have intended discharges
from a CAFO's land application area to
be at least potentially included as

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           Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations     7197
regulated point source discharges.
However, Sec. 502 also includes a
specific exclusion from the definition of
a point source for "agricultural storm
water discharges." EPA explains in the
following section how it interprets these
two statutory provisions in order to
identify which discharges from a
CAFO's land application area are
agricultural storm water discharges and
therefore are not point source
discharges.
  Because the runoff from land
application of manure at CAFOs is a
major route of pollutant discharges from
CAFOs, and for the other reasons
articulated above, EPA does not believe
it is sufficient to rely on non-regulatory
controls cited by one of the commenters,
such as the CWA section 319 program,
or State non-NPDES authorities.
  While EPA is today making explicit in
the regulations that a CAFO's land
application of CAFO manure and
process wastewaters is subject to NPDES
requirements, the Agency is doing so
through different regulatory language
from what was proposed. EPA proposed
to amend the AFO definition to include
the land application areas at the facility
as well as the animal production areas.
Following the proposal, however,
concerns were raised that this language
could be misconstrued to mean that
CAFO permits must include terms and
conditions on any pollutants running off
the operation's land application areas
(for example, runoff of pesticides). This
was not EPA's intent. The focus  of this
rulemaking is on the CAFO manure and
process wastewaters that may be
discharged by the CAFO. Therefore,
EPA has chosen not to include the land
application areas at an animal feeding
operation within the definition of an
AFO or CAFO in the final regulations.
Instead, EPA has added section
a22.23(e), entitled "Land application
discharges from a CAFO are subject to
NPDES requirements," which states  as
follows: "The discharge of manure, litter'
or process wastewater to waters  of the
United States from a CAFO as a result
of the application of that manure, litter
or process wastewater by the CAFO to
land areas under its control is a
discharge from that CAFO subject to
NPDES permit requirements, except
where it is an agricultural storm water
discharge as provided in 33 U.S.C.
1362(14)." This provision goes on  to
state that a discharge of manure  or
process wastewater from a CAFO's land
application areas is an agricultural
storm water discharge under certain
conditions, as discussed in the next
preamble section.
  The Agency emphasizes that in
today's amendments to the CAFO
regulations, a CAFO's responsibility for
land application discharges extends
only to the CAFO's own land
application areas, which includes areas
at the CAFO itself or otherwise under
the CAFO owner's or operator's control.
Also, as noted, today's land application
rule provisions apply only to the
application of manure, litter, and
process wastewaters at the CAFO, and
not to other pollutants that may exist at
the operation.
  As explained above, EPA also believes
that the final rules adopted today
appropriately account for the exclusion
of "agricultural storm water  discharges"
from the definition of a point source in
the Clean Water Act. This subject  is
discussed in the following section.

6. How Is EPA Applying the
Agricultural Storm Water Exemption
With Respect to Land Application of
CAFO Manure and Process
Wastewaters?
  EPA is clarifying in today's rule that
discharges of manure, litter, and process
wastewaters from the land application
areas of a CAFO are agricultural storm
water discharges where the manure 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 or process
wastewater. Such practices,  as specified
in 122.42(e)(l) (vi)-(ix) must be
included in all CAFO permits.
  What did EPA propose? For purposes
of land application of manure from an
AFO or CAFO, EPA proposed to define
the term "agricultural storm water
discharge" as a discharge composed
entirely of storm water, as defined in
§ 122.26(a)(13), from, a land area upon
which manure and/or wastewater has
been applied in accordance with proper
agricultural practices, including land
application of manure or wastewater in
accordance with either a nitrogen-based
or, as required, a phosphorus-based
manure application rate. Also, as  noted,
the proposed effluent guidelines
included technology-based
requirements for a CAFO's land
application areas that were based on the
CAFO's use of proper agricultural
practices. (See 66 FR at 3029-32).
  What were the key comments? A
number of the commenters who claimed
that EPA does not have authority  to
regulate land application at CAFOs
focused on the exclusion for agricultural
storm water discharges. In their view,
under this exclusion, all runoff of
manure, litter, or process wastewaters
from a CAFO's crop fields is exempt
from the NPDES program as agricultural
storm water. In contrast, other
commenters took the view that because
of the Act's specific naming of CAFOs
as point sources, none of the runoff from
CAFO crop fields is entitled to the
agricultural storm water exemption.
  Rationale. The CWA states that the
term "point source"  does not include
"agricultural storm water discharges"
(section 502(14)). Nothing in the
statutory language or legislative history
indicates that Congress did not mean to
include agricultural storm water .
discharges from a CAFO in this
exclusion. EPA therefore believes that in
order to interpret the inclusion of
CAFOs as point sources and the  .
agricultural storm water exclusion
consistently, it is necessary to identify
the conditions under which discharges
from the land application area of a
CAFO are point source discharges that
are subject to NPDES permitting
requirements and those under which
they are agricultural storm water
discharges and therefore are not point
source discharges.
  EPA has determined that it is
appropriate to base the distinction
between agricultural storm water
discharges and regulated point source
discharges of manure, litter, and process
wastewater from a CAFO on whether or
not the manure and process wastewater
has been applied in accordance with
site specific nutrient management
practices that ensure appropriate
agricultural utilization of the nutrients
in the manure or process wastewater.
The specific types of practices that EPA
believes are needed to ensure this are
specified in 122.42(e) (l)(vi)-(ix).; Where
such practices have been used, EPA
believes it is reasonable to conclude that
any remaining discharge is agricultural
storm water. Conversely, where such
practices have not been used, EPA
believes it is reasonable to conclude that
land application discharges of manure,
litter, or process wastewater are not
agricultural storm water but are
discharges that Congress meant to
subject to NPDES permitting
requirements when it explicitly
included CAFOs in the definition of a
point source.
  When manure or process wastewater
is applied in accordance with practices
designed to ensure appropriate
agricultural utilization of nutrients, it is
a beneficial agricultural production
input. This fulfills an important
agricultural purpose, namely the .
fertilization of crops, and it does so in
a way that minimizes the potential for
a subsequent discharge of pollutants to
waters of the U.S. EPA recognizes that
even when the manure, litter, or process
wastewater is land applied in
accordance with practices designed to

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  7198     Federal Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations
  ensure appropriate agricultural
  utilization of nutrients, some runoff of
  nutrients may occur during rainfall
  events, but EPA believes that this
  potential will be minimized and any
  remaining runoff can reasonably be
  considered an agricultural storm water
  discharge.
   EPA notes that 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 storm water
  discharge and would thus be subject to
  Clean Water Act requirements. As a
  matter of common sense, only storm
  water can be agricultural storm water.
  Further, if manure or process
  wastewater were applied so thickly that
  it ran off into surface waters even during
  dry weather, this would not be
  consistent with practices designed to
  ensure appropriate agricultural
  utilization of nutrients.
   In this rule, EPA is clarifying how it
  believes the scope of regulated point
  source discharges from a CAFO is
  limited by the agricultural storm water
  exemption. EPA does not intend its
  discussion of how the scope of point
  source discharges from a CAFO is
  limited by the agricultural storm water
  exemption to apply to discharges that
  do not occur as the result of land
  application of manure, litter, or process
  wastewater by a CAFO to land areas
.  under its control and are thus not at
  least potentially CAFO point source
  discharges. In explaining how the scope
  of CAFO point source discharges is
  limited by the agricultural storm water
  exemption, EPA intends that this
  limitation will provide a "floor" for
  CAFOs that will ensure that, where a
  CAFO is land applying manure, litter, or
  process wastewater in accordance with
  site specific practices designed to
  ensure appropriate agricultural
  utilization of nutrients, no further
  effluent limitations will be authorized,
  for example, to ensure compliance with
 water quality standards. Any remaining
  discharge of manure or process
 wastewaters would be covered by the
  agricultural storm water exemption and
 would be considered nonpoint source
 runoff. Further, the Agency does not
 intend that the limitation on the scope
 of CAFO point source discharges
 provided by the agricultural storm water
 exemption be in any way constrained,
 so long as manure, litter, or process
 wastewater is land applied by the CAFO
 in accordance with site specific nutrient
 management practices that ensure
 appropriate utilization of nutrients. In
 particular, EPA does not intend that the
 applicability of the agricultural storm
 water exemption to discharges from
 land application areas of a CAFO be
 constrained by requirements to control
 runoff resulting from the application of
 pesticides or other agricultural
 practices.
   Although as noted above, manure and
 process wastewater discharges from the
 land application area are not directly '
 subject tb water quality-based effluent
 limits, EPA encourages States to address
. water quality protection issues in their
 technical standards for determining
 appropriate land application practices.
   The Agency disagrees with the
 commenters who would interpret the
 agricultural storm water provision to
 exclude all of the runoff from a CAFO's
 land application areas. It would not be
 reasonable to believe that Congress
 intended to exclude as an "agricultural"
 storm water discharge any and all
 discharges of CAFO manure from land
 application areas, for example, no
 matter how excessively such manure
 may have been applied without regard
 to true agricultural needs. Similarly,
 EPA does not agree with the
 commenters who believe that the
 agricultural storm water discharge
 exclusion does not apply at all to
 CAFOs because Congress singled out
 CAFOs by specifically including them
 in the definition of point source. There
 is nothing in the text of the point source
 definition (CWA section 502(14)) that
 indicates that Congress intended the
 agricultural storm water discharge
 exclusion not to _apply to CAFOs.
   After considering all the comments,
 EPA has decided that it is not necessary
 to include a definition of the term
 "agricultural storm water" in the rule
 text at section 122.23(b). EPA believes
 that the amended regulatory text at 40
 CFR 122.23(e), in combination with this
 preamble discussion, adequately
 clarifies the distinction between
 regulated point source discharges and
 non-regulated agricultural storm water
 discharges from the land application
 area of a CAFO.
   Under the final rule, as proposed,
 discharges from the production area at
 the CAFO (e.g., the feedlot and lagoons)
 are not eligible for the agricultural storm
 water exemption at all, because they
 involve the type of industrial activity
 that originally led Congress to single out
 CAFOs as point sources.
   Today's final rule also requires all
 permits for CAFOs to include terms and
 conditions to address land application.
 See section 122.42(e) and Part 412. The
 Agency has included this requirement
 because it has the authority to regulate
 point source discharges and any
 discharge of CAFO manure, litter, or
 process wastewaters from the land
 application area of a CAFO which is not
 agricultural storm water is subject to the
 Clean Water Act. EPA believes that the
 only way to ensure that non-permitted
 point source discharges of manure, litter
 or process wastewaters from CAFOs do
 not occur is to require that CAFOs apply
 for NPDES permits that will establish
 requirements that ensure that manure,
 litter, and process wastewater are'only
 applied to CAFO land application areas
 in accordance with site specific nutrient
 management practices that ensure
 appropriate agricultural utilization of
 the nutrients in the manure, litter, or
 process wastewater.

 7. When and How Is an AFO Designated
 as a CAFO?
  In today's final rule, EPA is retaining
 the requirement for an on-site
 inspection and a determination that an
 AFO is a significant contributor of
 pollutants to waters of the United States
 prior to designating an AFO as a CAFO.
 A small AFO may be designated only if
 it discharges either: (1) Into waters of
 the United States through a man-made
 ditch, flushing system, or other similar
 man-made device or (2) directly ijito
 waters of the United States that
 originate outside of the facility and pass
 over, across, or through the facility or
 otherwise come into contact with: the
 confined animals. Medium operations
 may also be designated as CAFOs even
 if they do not meet either of the two
 conditions for being defined as a  CAFO.
  What did EPA propose? In the  ;
 proposed rule, EPA presented two
 options with respect to the designation
 criteria. EPA proposed to retain the
 existing criteria under a three-tier
 structure and proposed to eliminate
 them under a two-tier structure. In
 addition, EPA requested comment on
 several additional alternatives that
 would have retained the criteria only for
 small operations.                :
  EPA also proposed to modify the on-
 site inspection requirement to explicitly
 include other forms of information
gathering such as use of monitoring
 data, fly-overs, and satellite imagery.
EPA also proposed a technical
 correction, changing the term
 "significant contributor of pollution" to
 "significant contributor of pollutants."
  What were the key comments? EPA
received limited comment concerning
proposed changes to the designation
criteria. Only a few States specifically
supported the elimination of the
criteria. A few representatives of the
livestock industry generally supported
elimination of the criteria for operations
of all sizes. Commenters were generally
opposed  to EPA's proposal to modify
the  on-site inspection requirement to

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           Federal Register/Vol. 68, No. 29/Wednesday, February 12,  2003/Rules and Regulations      7199
allow for alternative data gathering
methods. Some commenters
acknowledged that the alternative
methods of data collection proposed by
EPA can indicate situations where a
potential water quality problem exists;
however, most commenters asserted that
on-site inspections by knowledgeable
personnel are the only fair and accurate
method of determining whether an AFO
is a significant contributor of pollutants.
  The SBAR Panel raised concern over
the proposed changes to the designation
criteria, and the potential to cause more
small businesses to be subject to
regulation. The Panel supported the
retention of the existing designation
criteria and process.
  Rationale. EPA has decided to retain
the existing designation criteria and
process because the existing criteria
strike an appropriate balance for
ensuring protection of surface water
quality while maintaining flexibility for
States to assist small and medium
operations before they become subject to
NPDES requirements for CAFOs.
Retaining the requirement for an on-site
inspection will help ensure  a reasoned
assessment of the situation has been
performed and make the operation
aware that it may be designated a CAFO.
  AFOs that do not meet the regulatory
definition of a CAFO can often be
effectively addressed by State voluntary
programs or regulatory non-NPDES
programs focused on the elimination of
the conditions that pose a threat to
water quality. Implementing these
voluntary or non-NPDES State programs
can help to ensure that medium and
small operations implement proper
practices and are not designated as
CAFOs. If documented threats to water
quality are not addressed by the owner
or operator of particular AFOs, the
NPDES CAFO regulations provide States
with appropriate flexibility  to use
designation as an effective mechanism
to designate these operations as CAFOs
on a case-by-case basis. Once designated
as CAFOs, these operations  are subject
to the permitting requirements defined
in today's action. Note that the ELGs
apply only to Large CAFOs. For
Medium and Small CAFOs appropriate
permit limits should be established
according to the BPJ of the permitting
authority.
  Although no change has been made to
either the former designation criteria or
the requirement for an on-site
inspection, EPA is adopting as final a
technical correction to the regulatory
language on designation, changing the
term from "significant contributor of
pollution" to "significant contributor of
pollutants." for the reasons  discussed in
the proposal. This technical correction
makes the NPDES CAFO regulations
consistent with the rest of the NPDES
program. EPA received very few public
comments on this revision.
  If, after conducting an on-site
inspection, the NPDES authorized State
(or EPA in certain circumstances—see
below) determines that an AFO is a
significant contributor of pollutants to
waters of the United States, the AFO
may be designated as a CAFO. The
determination of whether an AFO is a
significant contributor of pollutants to
waters of the United States should
consider the cumulative impacts of
multiple AFOs that may be causing or
contributing to the exceedance of water
quality standards.

8. Can EPA Designate an AFO as a
CAFO Where the State Is the Permitting
Authority?
  Today's final rule explicitly
authorizes the EPA Regional
Administrator to designate CAFOs in
NPDES authorized States where the
Regional Administrator has determined
that one or more pollutants in the AFO's
discharge contributes to an impairment
in a downstream or adjacent State or
Indian country water that is impaired
for that pollutant. Upon designation,  the
operation would be required to apply to
the appropriate permitting authority for
permit coverage. It should be noted that
EPA is not assuming authority or
jurisdiction to issue permits to the
CAFOs that it designates in authorized
NPDES States (except for those in
Indian Country). That authority would
remain with the authorized States.
   What did EPA propose? EPA
proposed to explicitly authorize EPA
designation of AFOs as CAFOs in
NPDES authorized States, without
limiting this authority to AFOs
contributing to impairments in
downstream or adjacent jurisdictions.
   What were the key comments? In
comments submitted on the proposed
rule, States and the livestock and
poultry industry were generally
opposed to EPA designation in NPDES
authorized States. A number of
commenters argued that EPA did not
have the authority to designate in a
State with an authorized NPDES permit
program. Environmental organizations
and allied commenters were generally
supportive of EPA's designation
authority. Those supportive of EPA's
proposal believed that this authority
would be an important component of
ensuring that the revised regulations  are
fairly implemented across the entire
country.
   Rationale. After careful consideration
of the comments, EPA has decided to
limit EPA designation authority, in
NPDES authorized States, to
circumstances where the Regional
Administrator has determined that one
or more pollutants in the AFO's  ;
discharge contributes to an impairment
in a downstream or adjacent State or
Indian country water that is impaired
for that pollutant. In these situations,
the State in which the discharge is
located may not have the same
incentives for designating sources as it
would if the impaired water affected by
the discharger were located in the State.
This approach will ensure consistent
implementation of designation   :
requirements across State boundaries
where there are serious water quality
concerns. EPA expects NPDES
authorized States to ensure consistency
within State boundaries. It is not EPA's
intention to make such designations
lightly or without close coordination
with affected States. EPA's designation
authority will be helpful in sensitive
situations where one State finds it
difficult to resolve water quality
impairments caused by AFOs in another
State.                         ;
  EPA disagrees with those commenters
who believe that the Agency does, not
have the legal authority to designate
CAFOs in authorized States. In today's
action, EPA is asserting similar, albeit
more limited, authority to designate
CAFOs as compared to designation of
storm water point sources. See 4Q CFR
122.26(a)(l)(v) and 122.26(a)(9).
  Ultimately, EPA's authority to
designate derives from the CWA itself.
CWA Section 501(a) provides the
Agency with the authority to designate
point sources subject to regulation
under the NPDES program, even in
States approved to administer the;
NPDES permit program. This
interpretive authority to define point
sources and nonpoint sources was
recognized by the D.C. Circuit in NRDC
v. Costle, 568 F.2d 1369,1377 (DC Cir.
1977). The interpretive authority arises
from CWA Section 501(a) when EPA
interprets the term "point source'' at
CWA Section 502(14).
9. How Can States Use Non-NPDES
Programs To Prevent Medium and Small
Operations From Being Defined or
Designated as CAFOs?          '•
  EPA promotes the efforts of States to
actively use a variety of strategies to
work with owners and operators of
AFOs to ensure that they do not meet
the criteria that would result in their
being defined or designated Small or
Medium CAFOs.
  Operators of medium and small
facilities are encouraged to participate
in voluntary programs that promote
sustainable agriculture and the

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 7200      Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
 reduction of environmental impacts.
 EPA anticipates that participation in
 these programs will assist them in
 eliminating conditions which would
 result in the AFO being defined or
 designated as a CAFO. For example, it
 may be that an operation that confines
 500 cattle and that participates in a
 voluntary program to develop and
 implement a CNMPras defined by
 USDA, could proactively fix situations
 that may otherwise cause them to meet
 the criteria for being defined or
 designated as a CAFO. EPA intends to
 develop a small entity compliance guide
 to assist small business and additional
 tools needed to assist AFOs in
 complying with this requirement. Please
 refer to a more extensive discussion of
 how this rule promotes and encourages
 State flexibility in section V.F.

 10. What CAFOs Are New Sources?
  Today's final rule makes no changes
 to the definition of "new source" in 40
 CFR 122.2 or the definition and criteria
 for new source determinations in 40
 CFR 122.29 with respect to CAFOs. For
 purposes of applying the new source
 performance standards in today's final
 rule, a source would be a new source if
 it commences construction after April
 14, 2003 (see 40 CFR 122.2). Each
 source that meets this definition is
 required to achieve the new New  Source
 Performance Standard upon
 commencing discharge.
  What did EPA propose? EPA
 proposed additional criteria for
 determining who is a new source,
 including:
  1. The CAFO is constructed at a site
 at which no other source is located;
  2. The CAFO totally replaces the
 housing including animal holding areas,
 exercise yards, and feedlot, waste
 handling system, production process,  or
 production equipment that causes the
 discharge or potential to discharge
 pollutants at an existing source; or
  3. The CAFO constructs a production
 area that is substantially independent  of
 an existing source'at the same site.
  What are the key comments? Some
 industry commenters expressed the
 view that the new source definitions
 were too broad and would result in
 many existing CAFOs being considered
 by their permitting authority as new
 sources. Commenters interpreted the
 proposal to mean that operations
 undergoing routine operation and
 maintenance or replacement of
 individual structures and equipment
 could be considered a new source under
the proposed language. These existing
facilities defined as new would have to
undergo costly improvements to comply
with the NSPS. In addition, the new
 source definition would be a
 disincentive to conduct routine
 maintenance and improvements at an
 operation. The commenters indicated
 that EPA did not provide enough
 rationale to include this language and
 that other industries do not have such
 a broad new source definition. Industry
 commenters, including some
 conservation districts, concluded that
 EPA should retain the existing
 definition.
   Comments from environmental
 organizations and private citizens
 indicated their belief that all expanding
 AFOs should be considered CAFOs and
 subject to NSPS, and that these
 standards should be more restrictive
 than the existing source standards.
   Rationale. After reviewing public
 comment and reconsidering this
 proposed revision, EPA has concluded
 that the existing regulation at
 § 122.29(b) provides adequate criteria
 for determining who is a new source.
 EPA's intention was to provide permit
 writers with clear and specific criteria
 applicable to CAFOs to improve clarity
 of these regulations. In retrospect, the
 only clarification that was provided was
 related to § 122.29(b)(ii], which refers to
 when the new construction "totally
 replaces the process or production
 equipment that causes the discharge of
 pollutants at an existing source." While
 the Agency disagrees with commenters
 that the proposed revisions would
 expand the scope of the existing
 regulation, EPA decided that it was not
 necessary to adopt the proposal as the
 existing regulation is sufficient for EPA
 to provide,guidance on determining
 new sources. Further, EPA is not
 adopting the proposal in the interest of
 keeping the regulation simple.
 Nevertheless, EPA believes some clarity
 as to which CAFOs are new sources is
 appropriate. In response to  commenters
 who believe that EPA should consider
 any facility that expands to be a new
 source, EPA did not propose such a
 definition, the reasons for which are
 discussed at 66 FR 3066 of the proposed
 rulemaking. EPA is clarifying that it is
 not the intent of this section to serve as
 a disincentive to CAFOs to maintain,
 upgrade, or otherwise enhance facilities
 and waste management systems to
 improve their operational and
 environmental performance. Thus, EPA
 is clarifying that an expanding source is
not automatically defined as a new
 source. For example, a facility that
expands its operation by simply
extending existing housing structures by
constructing new housing adjacent to
existing housing, is riot typically
considered, a new source. Under existing
provisions |at § 122.29(b) such
 expansions at an existing facility would
 not result in the facility becoming
 defined as a new source unless the
 modifications totally replace the process
 or production equipment that causes the
 discharge of pollutants, or the new/
 modified facility's production and waste
 handling processes are substantially
 independent of the preexisting source.

 B. Who Needs a Permit and When?

 1. Who Needs To Seek Coverage Under
 an NPDES Permit?
   Today's rule requires all CAFO:
 owners or operators to seek coverage
 under an NPDES permit, except in very
 limited situations where they make an
 affirmative demonstration of "no
 potential to discharge," as discussed
 below. This "duty to apply" applies
 without exception; it makes no
 difference, for example, whether the
 CAFO manure management system has
 been appropriately designed and
 operated to prevent discharges except
 during large storm events. Recognizing
 that there may be certain situations in
 which no reasonable potential to
 discharge exists, EPA has also   '
 established the ability for a CAFO
 owner or operator to demonstrate; that
 the facility has no potential to discharge
 from either its production areas or its
 land application areas. If the perniitting
 authority agrees with the demonstration
 of no potential to discharge, the  :
 operation would not need to obtain an
 NPDES permit. The no potential to
 discharge demonstration is not relevant
 to small or medium operations because
 an actual discharge is a required !
 criterion for a small or medium  '.
 operation to be considered a CAFO.
   What did EPA propose! EPA
 proposed to require all CAFOs to seek
 coverage under an NPDES permit,
 except where they can demonstrate no
 potential to discharge.          j
  What were the key comments?
 Environmental groups were largely in
 favor of the duty to apply provision, and
 sought to ensure that all Large CAFOs
 in particular had a duty to apply. These
 commenters expressed concern about
 the impacts of unregulated operations,
 the potential for CAFOs to discharge,
 and the lack of permitting of CAFOs •
 under the current regulations. Many
 commenters stated that because of the
 potential to discharge CAFOs should
 have NPDES permits.           :
  Trade associations and industry
 commenters were largely opposed to the
 duty to apply requirement. A number of
these commenters questioned EPA's
legal authority for requiring permit
applications from CAFOs that claim not
to discharge. They argued that the Clean

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           Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations      7201
Water Act requires an NPDES permit
only for an actual discharge of
pollutants to the waters of the United
States. Commenters also noted that
imposing a duty to apply is inconsistent
with EPA's past interpretations of the
Clean Water Act, pointing to past
instances in which EPA has stated that
permits are required only for actual
discharges.
  An industry commenter also
disagreed with EPA's reasons for finding
that there is a need to impose a duty to
apply for a permit for CAFOs. The
commenter disagreed with EPA's belief
that many large AFOs have not applied
for permits because of widespread
confusion over the CAFO regulatory
requirements and stated that any
confusion in the regulations can easily
be remedied by EPA. The commenter
noted that there could be  other reasons
these operations are not permitted (for
example, the operation does not
discharge, it discharges only in a 25-
year, 24-hour storm, or is a dry poultry
facility). Commenters also questioned
EPA's finding that many CAFOs are
discharging without a permit and stated
their belief that CAFO discharges are no
more intermittent (and thus no more
difficult to detect and document) than
those in other industries.
  These Commenters also asserted that
EPA is not authorized and not justified
in putting the burden on the CAFO  to
show that it does not discharge.
According to the commenters, this
presumption of a discharge weakens the
requirement of an actual discharge in
the Act and will result in EPA
regulating facilities that Congress
intended to exclude from the NPDES
program.
  State comments were mixed. Most
supported the duty to apply provision,
including the no potential to discharge
determination, agreeing with EPA that
any operation that meets  the definition
of a CAFO should be required to apply
for a permit. Some States indicated that
the criteria for becoming  a CAFO
needed to be clear, and then facilities
would know when they are CAFOs and
would comply with the duty to apply.
Other States opposed this proposal for
a variety of reasons, including that
shifting the burden of proof to the
facility would be onerous, especially if
EPA lowers the regulatory threshold;
that there was no need to impose a
permit in order to ensure that livestock
operations have nutrient management
plans; and that EPA should not create
duplicative efforts in States with
effective programs.
   Although the SB AR Panel did not
comment on the proposed duty to apply
requirements, the Panel did comment
on EPA's proposal to require all
medium facilities either to certify that
they are not CAFOs or to seek coverage
under an NPDES permit. The Panel
recommended that EPA carefully
consider the burden of such
requirements. The Panel also was
concerned that requiring full permit
applications from the number of
Medium CAFOs contemplated at
proposal may impose a significant
burden with limited environmental
benefits, and recommended that EPA
carefully consider appropriate
streamlining options. Finally, the SBAR
Panel recommended that, before adding
any new application or certification
requirements for operators in this size
range, EPA should carefully weigh the
burden and environmental benefits of
expanding the scope of the regulations
in this way.
  Rationale. After careful consideration
of the comments, EPA is adopting the
"duty to apply" in today's final
regulations. This revised duty to apply
is designed to identify and ultimately to
prevent actual unauthorized discharges
to the waters of the United States,
consistent with the intent and goals of
the Clean Water Act. CAFOs that
demonstrate that they do not have a
potential to discharge will not need to
seek coverage under a permit, as
discussed in section IV.B.2 of this
preamble.
  EPA continues to believe that there is
a strong need and a sound basis for
adopting this duty to apply and that it
is within the Agency's authority to do
so. EPA fully discussed its rationale for
this provision in the proposal. There,
the Agency discussed the duty for
CAFOs, other than those which
discharge only in the event of a 25-year,
24-hour storm, to apply for a permit
under the existing NPDES regulations
(40 CFR 122.21(a)) and explained a
number of reasons behind the need for
a clarified and more broadly applicable
duty to apply for CAFOs.
   EPA disagrees with the comment that
there is no need for a duty to apply
because there may be legitimate reasons
for so many operations being
unpermitted at present. In fact, there are
numerous documented instances in the
administrative record of actual
discharges at unpermitted CAFOs that
are not associated with 25-year, 24-hour
storms. EPA also disagrees that CAFO
discharges are no more intermittent than
those in other industries. Operations in
other industries are typically designed
to routinely discharge after appropriate
treatment; this is not the case at CAFOs,
where discharges are largely unplanned
and intermittent. It is thus much easier
for CAFOs to avoid permitting by not
reporting their discharges. EPA
continues to believe that imposing a
duty to apply for all CAFOs is
appropriate given that the current
regulatory requirements are being
misinterpreted or ignored. Moreover,
simply clarifying the regulations would
not necessarily be adequate, because
operations might still claim that the
Clean Water Act requires no permit
application if the facility claims riot to
discharge. As discussed in the proposal,
Congress contemplated that EPA could
set effluent standards at zero discharge,
where appropriate, and that EPA would
effectuate these  standards through
permits; this statutory scheme would be
negated if CAFOs were allowed to avoid
permitting by claiming that they already
meet a zero discharge standard.
  EPA noted in the proposal that 'it had
not previously sought to categorically
adopt a duty to  apply for an NPDES
permit for all facilities within a
particular industrial sector. The Agency
explained that it is doing so for reasons
that involve the unique characteristics
of CAFOs and the zero discharge
regulatory approach (except for large
storm events) that applies to them. EPA
also noted that since the inception of
the NPDES permitting program in; the
1970s, only a small number of Large
CAFOs have actually sought permits.
The Agency is adopting this revised
duty to apply for all of these reasons,
including this historical experience
showing the lack of permitting of Large
CAFOs, while numerous documented
discharges occurred over time. This
change also serves to substantially
simplify and  clarify the applicability of
the rule.
   In addition, there is a sound basis in
the administrative record for the .
presumption that all CAFOs have' a
potential to discharge to the waters of
the United States such that they should
be required to apply for a permit, unless
they can show no potential to discharge.
EPA does not agree with the claim, that
the presumption of a discharge will
weaken the requirement of an actual
discharge in the Clean Water Act and
will result in EPA regulating facilities
that Congress intended to exclude from
the NPDES program. CAFOs will have
the opportunity to demonstrate that they
do not have a potential to discharge and
therefore would not be required to apply
for a permit.
2. How Can a CAFO Make a
Demonstration  of No Potential To
Discharge?
   Today's rule  specifies that a Large
CAFO need not have an NPDES permit
if the permitting authority finds that the
operation has no potential to discharge.

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7202      Federal Register/Vol. 68, No. 29/Wednesday,  February 12, 2003/Rules and Regulations
This final rule provides that Large
CAFOs may request and submit
technical information as the basis for a
permitting authority to determine that
there is no potential to discharge.
Today's rule also establishes
requirements for the permitting
authority to issue a public notice that
such a request has been received. The
request for a no potential to discharge
determination must be submitted by the
date upon which the CAFO is required
to seek permit coverage (See 40 CFR
122.23(g) and section IV.B.3 and Table
4.2 of this preamble). Within 90 days of
receiving the request, the Director will
let the CAFO know whether or not the
request for a no potential to discharge
determination has been granted. If the
request is denied, the CAFO must seek
permit coverage within 30 days after the
denial.
   What did EPA propose! EPA
proposed that Large CAFOs have a duty
to apply for an NPDES permit unless the
permitting authority, upon request from
the CAFO, makes a case-specific
determination that a CAFO has  no
potential to discharge pollutants to
water of the United States.
   What were the key comments'? Trade
associations and industry commenters
generally opposed the requirement to
demonstrate "no potential to
discharge." Their objections largely
follow from their view that CAFOs
should not be required to apply for a
permit in the first instance absent
evidence of an actual discharge. Having
to show "no potential to discharge" in
order to avoid a permit would place a
difficult or impossible burden on
operations to prove a negative, in their
view. They also expressed concerns
over the resources and expense of
showing  "no potential to discharge" and
about how permitting authorities will be
able to interpret and apply this  standard
consistently. Certain environmental
groups, on the other hand, were also
opposed to this provision, but then-
view is that CAFOs should be required
to apply for permits without exception,
and there should be no allowance for
CAFOs to avoid permitting based on a
finding of "no potential to discharge."
They also voiced concerns that this
provision will invite abuse by States
that seek to avoid permitting
responsibilities. On the subject of
whether the rules should include a
public process for the "no potential to
discharge" determination, public
commenters expressed views both for
and against including this process.
Those seeking to have a public process
included their belief that it will serve as
a check against any abuses iri making
these determinations.
  Rationale. Today's rule requires all
CAFOs to apply for a permit unless they
have received a determination by the
Director that the facility has "no
potential to discharge." The "duty to
apply" provision is based on the
presumption that every CAFO has a
potential to discharge and therefore
must seek coverage under an NPDES
permit. However, the Agency does not
agree with commenters that there
should be no opportunity to rebut this
presumption and avoid permitting
because JSPA recognizes that, although
they may be infrequent, there may be
instances where a CAFO truly does not
have a potential to discharge. For
example, the CAFO may have no
potential to discharge because it is
located at a great distance from any
water of the United States (see further
discussipn on this subject below). In
such circumstances, it would make little
sense to impose NPDES permit
requirements in order to protect against
such discharges. Therefore, the Agency
believes .that it is reasonable to allow
facilities that demonstrate "no potential
to discharge" to be released from the
requirement to seek coverage under an
NPDES permit. Although today's
regulation allows facilities to submit
"no potential to discharge" claims, an
unpermitted CAFO that does in fact
discharge pollutants to waters of the
U.S., with or without a determination of
"no potential to discharge," would be in
violation of the Clean Water Act.
  The requirement for demonstrating no
potential to discharge is not being
extended to small and medium AFOs
since the specific criteria that must be
met prior to becoming CAFOs requires
the existence of a discharge. Whereas
large AFOs are defined as CAFOs based
on number of animals alone, small and
medium AFOs only become CAFOs
after meeting specific discharge-related
criteria. A small AFO can only be
designated as a CAFO by the State
Director ;or Regional Administrator
where it is determined that it is a
significant contributor of pollutants to
•waters of the U.S. A medium AFO can
become a CAFO by designation or
definition. As in the case of small AFOs,
a medium AFO can only be designated
where it is determined to be a
significant contributor of pollutants to
waters of the United States. A medium
AFO that is a CAFO by definition must
meet one of the two "method of
dischargte" criteria prior to being
defined as a CAFO. Thus, it is
meaningless to consider such facilities
as having no potential to discharge.
  EPA's intention is that the term "no
potential to discharge" is to be narrowly
interpreted and applied by permitting
authorities. This provision is intended
to be a high bar that excludes tho$e
Large CAFOs from having an NPDES
permit only where the CAFO can!
demonstrate to a degree of certainty that
they have no potential to discharge to
the waters of the United States. The no
potential to discharge status is intended
to provide relief where there truly is no
potential for a CAFO's manure or
wastewater to reach waters of the
United States under any circumstances
or conditions.  Such circumstances
would include, for example, CAFOs that
are located in arid areas and far from
any water body or those that have
completely closed cycle systems for
managing their wastes and that do  not
land apply their wastes. For example, a
CAFO that meets the following
conditions might be able to demonstrate
no potential to discharge: (1) Located in
an arid or semi-arid environment; (2)
stores all its  manure or litter in a
permanent covered containment
structure that prevents wind dispersal
and precipitation from contacting the
manure or litter; (3) has sufficient
containment to hold all process
wastewater and contaminated storm
water and (4) does not land apply. CAFO
manure or litter because, for example,
the CAFO sends all its manure or-litter
to a regulated, offsite fertilizer plant or
composting facility. In particular,, EPA
believes that land application of its
manure and wastewater would, ia most
cases, be enough by itself to indicate
that a CAFO does have a potential to
discharge (although conceivably no
potential to discharge could be shown
based on the physical features of the
site, such as  lack of proximity to waters
of the United States). This discussion
should help to address commenters
concerns that there could be
inconsistencies in how permitting
authorities could interpret and apply
the standard for "no potential to '
discharge".
  The term "no potential to discharge"
means that there is no potential for any
CAFO manure, litter, or wastewater to
be added to waters of the United States
from an operation's production or land
application areas, without qualification.
If a Large CAFO chooses to make a
demonstration of no potential to '
discharge, it is the CAFO's
responsibility to provide appropriate
supporting information that the
permitting authority can use when
reviewing the demonstration. The
supporting information should include,
for example, a  detailed description of
the types of containment used for
manure focusing on the attributes of the
containment that ensure no discharges

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           Federal Register/Vol. 68, No.  29/Wednesday,  February  12,  2003/Rules  and Regulations      7203
will occur. In addition, there may be
instances where after preliminary
review of the demonstration, the
permitting authority may require the
submission of supplemental information
to assist in making a determination.
  EPA disagrees with commenters'
statements that the demonstration of
"no potential to discharge" will place
an impossible or excessively costly
burden on facilities. EPA believes that,
in many instances, the information that
is specified in 40 CFR 122.23(i)(2) will
be adequate for the Director to
determine whether or not the facility
has a potential to discharge. In such
instances, there would be no greater cost
to the facility than if it were to apply for
a permit. If additional information is
necessary, the Agency does not believe
that it will result in greatly increased
costs, because such information
(including, for example, design
specifications or other technical
information) would be readily available
to the facility and could be easily
provided to the permitting authority.
  Today's rule requires that a request
for a no potential to discharge
determination include most of the
information required for a permit
application, as specified in § 122.21(f)
and (i)CD(i) through (ix). This
information will serve as the primary
source of information relating to the
facility's qualifications to avoid an
NPDES permit. While some additional
information may be available to the
Director, including for example regional
rainfall, soil, and hydrological
conditions, the Director may require
supplemental, site-specific information
to make this determination. However,
EPA is not requiring a CAFO owner or
operator pursuing a no potential to
discharge  determination to certify to the
development of its nutrient management
plan, as required by § 122.21(iXl)(x) for
a CAFO that seeks permit coverage after
December 31, 2006.
  Within 90 days of receiving a request
for a no potential to discharge
determination the permitting authority
will notify the CAFO of its decision on
the request. During this review period,
a CAFO that has submitted a request for
a no potential to discharge
determination does not have a duty to
seek coverage under an NPDES permit.
The final rule differs from the proposal
in not imposing a duty to apply on
CAFOs that have submitted a no
potential to discharge request until there
is a denial of the request by the Director.
EPA believes that this is  a preferable
approach, because it does not risk the
imposition of NPDES permit
requirements on CAFOs  even though
they may qualify for a determination
that they have no potential to discharge.
To guard against abuse of this provision,
the Agency is establishing a limited
time of 90 days for the Director to make
its determination.
  If the permitting authority finds that
no potential to discharge has not been
demonstrated, the CAFO owner or
operator must seek permit coverage
within 30 days of the denial of the
request. States may use the information
submitted with the request for a no
potential to discharge determination to
proceed with individual permit
development or for coverage under a
general permit. However, in order to
obtain coverage, the CAFO owner or
operator would also be required to
provide a request for coverage and
include the information required by
§ 122.21(i)(l)(x), when applicable.
  After all necessary information is
submitted, and before making a final
decision to grant a "no potential to
discharge" determination, today's rule
requires the Director to issue a public
notice stating that a no potential to
discharge request has been received.
This notice must be accompanied by a
fact sheet which includes, when
applicable: (1) A brief description of the
type of facility or activity which is the
subject of the no potential to discharge
determination; (2) a brief summary of
the factual basis, upon which the
request is based, for granting the ho
potential to discharge determination;
and (3) a description of the procedures
for reaching a final decision on the no
potential to discharge determination.
The Director must base the decision to
grant a no potential to discharge
determination on the administrative
record, which includes all information
submitted in support of a no potential
to discharge determination and any
other supporting data gathered by the
permitting authority. If the Director's
final decision is to  deny the "no  •
potential to discharge" determination,
the CAFO owner or operator must
submit a permit application within 30
days after denial of the no potential to
discharge determination.
  The Agency believes that the process
described above addresses concerns
raised by commenters that States might
abuse the intended effect of this
provision and allow facilities that
should be permitted as CAFOs tojavoid
permitting. The Agency believes this
process should ensure that the Director
has adequate information to properly
decide whether a facility has a potential
to discharge or not, and also ensures
that the public will be made aware of
such determinations and can act
appropriately if it appears that
determinations are not being made as
required by this provision. Also, as
noted above, facilities that actually do
discharge without a permit are subject
to enforcement for  a violation of the
Clean Water Act—even if they have
previously received a no potential to
discharge determination.  This should
provide a strong incentive to CAFOs not
to file a frivolous request.

3. When Must CAFOs Seek Coverage
Under a NPDES Permit?         '.
  Table 4.2 summarizes the time frames
by which CAFOs (existing and new
sources) must apply for an NPDES
permit. Refer to section IV.A.ll of this
preamble for a discussion of the new
source definition.
                        TABLE 4.2.—TIME FOR SEEKING COVERAGE UNDER AN NPDES PERMIT
              CAFO status
    Time frame to seek coverage under an
             NPDES permit
                                                                                             Examples
Operations defined as CAFOs prior to April 14,
  2003.

Operations defined as CAFOs as of April 14,
  2003, and that were not defined as CAFOs
  prior to that date (e.g. existing operations that
  become defined as a CAFO as a result of
  changes tn this rule).
 Must have applied by the date required in 40
   CFR 122.21(c).

 As specified by the permitting authority, but
   no later than April 13, 2006.
Operations that previously met the definition
  of a CAFO and were not entitled to the 25-
  year, 24-hour storm permit exemption.
For example, "dry" chicken operations (oper-
  ations that did not use a liquid manure han-
  dling or continuous overflow watering sys-
  tem),  stand-alone immature swine,  heifer
  and calf operations,  and those AFOs that
  were entitled to the permitting exemption for
  discharging only in the event of a 25-year,
  24-hour storm.

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 7204      Federal Register /Vol. 68, No.  29/Wednesday,  February  12,  2003/Rules and Regulations
                  TABLE 4.2.—TIME FOR SEEKING COVERAGE UNDER AN NPDES PERMIT—Continued
              CAFO status
    Time frame to seek coverage under an
       ,       NPDES permit
                                                                                             Examples
 Operations  that become defined as  CAFOs
  after April 14, 2003, but which are not new
  sources.
 New sources	

 Designated CAFOs
 (a)  newly constructed operations: 180 days
   prior to the time the CAFO commences op-
   eration; (b) other operations (e.g. increase
   in number of animals): As soon as possible
   but  rjo later than 90 days  after becoming
   defined as a CAFO, except that, if the oper-
   ational change that causes the operation to
   be  defined as a CAFO would not haye
   caused it to be defined as a CAFO prior to
   April ,14, 2003, the operation must apply no
   later :than April 13,  2006 or 90 days after
   becojning defined as a CAFO, whichever is
   later.
 180 days prior to the time the CAFO com-
   mences operation.
 90 days after receiving notice of designation.
 For example, an AFO that increases the num-
   ber of animals in confinement to a level that
   would result in the operation becoming de-
   fined as a CAFO.
 For example, a new Large CAFO that com-
   mences construction after April 14, 2003.
   What did EPA propose"! The Agency
proposed to delay the effective date of
the revised definition of a CAFO until
three years from the date of publication
of the final rule, and thereby delay the
date by which permits would be
required for newly defined CAFOs until
three years after the date of the final
rule. During that three-year interim
period, the Agency proposed that the
existing CAFO definition would remain
in effect. For example, prior to the
effective date of the revised CAFO
definition, the revised new source and
new discharger provisions would apply
only to those facilities meeting the
definition of a CAFO under the existing
regulatory definition.  For designated
CAFOs, EPA proposed that the CAFO
must apply for a permit within 90 days
of being designated.
   What were the key comments'! Some
commenters felt that extending the time
for compliance allowed too much time
for implementation of the new
regulations, and would only result in
further delays  in addressing the
problems associated with discharges
from CAFOs. Other commenters took
the view that three years is too little
time for States or industry to meet the
new requirements, from either a
technical or economic standpoint. Most
of those who commented on this issue
sought clarity in setting the effective
dates for the regulations.
  Rationale. In today's rule, EPA is
establishing time frames for seeking
coverage under a permit that are
appropriate to  the various categories of
CAFOs, depending upon their status
with respect to the effective date of the
rule.
  For the reasons discussed in Section
IX of the preamble to the proposed rule,
the Agency does not believe that it
would be reasonable to require permit
coverage for all CAFOs immediately on
the effective date of tiiis rule. Following
issuance of today's rule, 40 CFR 123.62
provides authorized States with time to
revise their State NPDES programs (one
year or two years if statutory changes
are needed). Further, most States will
need approximately an additional year
to develop a general permit, publish a
draft of the general permit for public
comment, and issue a final general
permit for the many CAFOs that EPA
expects to be covered under a general
permit. EPA believes that a three-year
time franie for newly defined CAFOs to
obtain permit coverage is reasonable
and justified based on the requirements
of 40 CFR 123.62, together with the
need to develop and issue general
permits, and for the reasons stated
below.
  Today's rule is likely to result in
fewer facilities being defined as CAFOs
than anticipated at the time of proposal.
Because States will not need to address
concerns associated with identifying,
permitting, and ensuring compliance by
the large number of medium-size
facilities anticipated as potential CAFOs
at the time of proposal, EPA does not
believe that concerns that States would
need more than three years to meet the
new requirements are justified.
  The Agency is, however, changing its
approach to achieve the proposed time
frame for requiring CAFOs to seek
coverage under a permit. Rather than
delaying the effective date for the
definition of a CAFO, as was proposed,
EPA is simply establishing a three-year
time frame for when newly defined
CAFOs must seek coverage under a
permit.
  Today's approach is consistent with
Congressional intent in the 1972 Clean
Water Act. Today's rule marks the first
time in many years, except in the case
of storm water sources, that the Agency
is revising the scope of the term point
source to include additional facilities
under the definition. In the 1972 Clean
Water Act, Congress provided more than
two years for point sources to obtain
coverage under a permit (§ 402(k)}.
Similarly, in this instance, EPA believes
that Congress would have intended for
the Agency to provide additional time
for these newly covered sources to
obtain permit coverage. This additional
time is necessary for States to revise
their regulations and to develop and
issue permits, and it provides facilities
some time to take the necessary steps to
comply with these new requirements.
  Moreover, EPA believes that there
will be other advantages as a result of
the approach taken in today's rule. The
first is to avoid the confusion that
would be associated with having
different and conflicting definitions of a
CAFO present simultaneously in the
Code of Federal Regulations, which
would be the case if EPA were to ;
promulgate a revised definition of
CAFO but delay the effective date of the
definition for three years. The second is
to encourage States to issue new permits
and cover newly defined CAFOs ^s soon
as possible within the time periotj
specified. CAFOs are encouraged to seek
coverage under a permit once general
permits addressing those facilities are
available. A third reason is that this
approach is consistent with EPA'?
approach when the Agency promulgated
the storm water phase II regulations,
although those regulations were based
on a somewhat different statutory
foundation.
  For all of the reasons stated above, the
Agency is exercising its discretion to
define these newly regulated facilities as
point sources, while delaying their duty

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           Federal Register/Vol. 68, No. 29/Wednesday, February  12, 2003/Rules and Regulations     7205
to apply for a permit until three years
from the effective date of today's rule.
  Today's rule does not extend the date
by which operations that were defined
as CAFOs under the prior regulations
should have applied for a permit (see 40
CFR 122.21). In particular, EPA notes
that those operations that previously
met the criteria for heing a CAFO, hut
who erroneously claimed the 25-year,
24-hour storm exemption and avoided
applying for an NPDES permit on that
basis, continue to be in violation of the
regulations and need to immediately
apply for NPDES permit coverage.
Today's rule also does not extend the
date by which operations that have
previously been designated as a CAFO
should have applied for an NPDES
permit.
  The third category described in Table
4.2 pertains to a category of permittees
who become CAFOs subsequent to the
effective date of today's rule, but who
are not defined as "new sources" in
accordance with the new source criteria.
For example, a newly constructed
Medium CAFO falls in this category,
since it is not subject to the new source
performance standards in Part 412.
Newly constructed CAFOs in this
category must seek coverage under an
NPDES permit 180 days prior to the
time the CAFO commences operation.
This requirement is designed to parallel
the time for permit application for new
sources. Other operations that become
CAFOs after the effective date of today's
rule, including, for example, operations
that increase the number of animals in
confinement to a level that would result
in the operation being defined as a
CAFO, but that are not new sources, are
required to seek permit coverage as soon
as possible but no later than 90 days
after being denned as a CAFO. EPA is
establishing this date by which such
new dischargers must seek coverage
under an NPDES permit in
consideration of the unique nature of
AFO operations. In other industries, a
facility would typically require
significant capital improvements to
become a newly discharging point
source. AFOs, on the other hand, may
become a new discharger merely by
increasing the number of animals
housed in confinement at die facility.
Moreover, the increase necessary to
meet the threshold numbers necessary
to be defined as a CAFO could be
relatively small. Such an increase could
be necessary in response to fast-
changing market conditions, in which
case it would be an undue burden on
the AFO to encounter a delay of 180
days before being able to operate as a
CAFO. Inasmuch as CAFOs are not
continuous dischargers, the Agency
believes that it is reasonable and
sufficient for a CAFO that is a new
discharger (other than those that are
newly constructed operations] to seek
coverage within 90 days after becoming
defined as a CAFO.
  EPA is establishing an additional
permit application deadline in this
category of three years where the change
that causes the operation to be defined
as a CAFO would not have caused it to
be defined as a CAFO if the change had
occurred prior to the effective date of
today's rule. This would include, for
example, a dry poultry operation that,
sometime after the effective date of
today's rule, adds animals and exceeds
the threshold for becoming defined as a
CAFO. The Agency is establishing this
permit application deadline since it is
appropriate to treat such facilities on an
equal footing to dry poultry operations
that become defined as CAFOs as of the
effective date of today's rule and who
therefore have three years to apply for
a permit. It would have been inequitable
to have allowed a dry poultry operation
that exists at the time this rule becomes
effective to have three years to apply but
to require a dry poultry operation that
becomes a CAFO because it adds a small
number of animals shortly after this rule
becomes effective to apply within 90
days.
4. What Are the Different Types of
Permits?
  Today's final rule allows the
permitting authority to determine the
most appropriate type of permit
coverage for a CAFO. Under the NPDES
regulations, the two basic types of
NPDES permits that can be used are
individual permits and general permits.
Refer to section V.E. of this preamble for
further discussion about the different
types of permits.
  What
        aid EPA propose? The proposed
rule would have required States to
conduct a public process for
determining which criteria, if any,
would require a CAFO owner or
operator to apply for an individual
rather than a general permit. The
proposed rule also would have added a
set of CAFO-specific criteria for when
the Director may require an individual
permit: (1) CAFOs located in an
environmentally or ecologically
sensitive area; (2) CAFOs with a history
of operational or compliance problems;
(3) CAFOs that are exceptionally large
operations as determined by the
permitting authority; and (4)
significantly expanding CAFOs. EPA
noted in the preamble to the rule as well
that it had considered identifying a
specific size threshold for individual
permits, such as 5.000AU or lO.OOOAU,
and solicited comment and information
relating to such a threshold.
  What were the key comments?
Comments from industry and State
agencies by and large were both against
setting criteria for individual permits
and against establishing a public
process for developing such criteria.
States in particular felt that existing
NPDES regulations already adequately
defined the process-for developing
individual and general permits, and
strongly advocated against being told at
the federal level what criteria to use in
issuing permits. Environmental groups
commented that they wanted strict
federal criteria for individual permits
out of concerns regarding the need for
federal oversight over large operations
and because of their keen interest in the
public involvement afforded by
individual permits. Many of these
commenters stated that all Large CAFOs
(i.e., all with what was formerly termed
1,000 AU) should be required to have an
individual permit.
  Rationale. EPA elected not to set
conditions for determining which
CAFOs must have individual rather
than general permits or to require the
States to establish such conditions. The
Agency determined that selecting a set
of specific thresholds fundamentally
fails to recognize the diversity of feeding
operations in States across the nation.
What may be a "large" facility in one
State is often  not viewed as such in
another. This view was confirmed by
the Agency's  findings on this issue that
although many States set criteria for
who must have individual rather than
general permits, these conditions vary
greatly from State to State and are
generally dominated by regional
environmental concerns.

5. How Does a CAFO Apply for a
Permit?

   CAFO owners or operators must
submit an application for an individual
permit or submit a NOI (or the State's
comparable form) for coverage under an
applicable general permit. If a general
permit is not available, the CAFO; does
not meet the eligibility requirements for
coverage under the general permit, or
the CAFO would otherwise prefer to be
covered by an individual permit, the
CAFO owner or operator must submit to
the permitting authority an application
(EPA's Form  2B for CAFOs and Aquatic
Animal Production Facilities or the
State's comparable form) for an
individual permit. Today's final rule
does not make any changes in how a
CAFO applies for a permit.

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  7206
Federal Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations
  6. What Are the Minimum Required
  Elements of an NOI or Application for
  an Individual Permit?
    Today's final rule revises the
  information requirements for seeking
  coverage under an NPDES permit for
  CAFOs. Today's rule revises the NPDES
  individual permit application for
  CAFOs (Form 2B for CAFOs and
  Aquatic Animal Production Facilities),
  and specifies the information required
  in an NOI form for coverage under a
  CAFO general. EPA is requiring
  applicants for coverage under either
  individual or general CAFO permits to
  provide the same information:
   (i) The name of the owner or operator;
   (ii) The facility location and mailing
  addresses;
   (iii) Latitude and longitude of the
  production area (entrance to production
  area);
   (iv) A topographic map of the
 geographic area in which the CAFO  is
  located showing the specific location of
 the production area, in lieu of the
 requirements of paragraph (f)(7) of
  §122.21;
   (v) Specific information about the
 number and type of animals, whether in
 open confinement and housed under
 roof (beef cattle, broilers, layers, swine
 weighing 55 pounds or more, swine
 weighing less than 55 pounds, mature
 dairy cows, dairy heifers, veal calves,
 sheep and lambs, horses, ducks, turkeys,
 other);
   (vi) The type of containment and
 storage (anaerobic lagoon, roofed storage
 shed, storage ponds, underfloor pits,
 above ground storage tanks, below
 ground storage tanks, concrete pad,
 impervious soil pad, other) and total
 capacity for manure, litter, and process
 wastewater storage (tons/gallons);
   (vii) The total number of acres under
 control of the applicant available for
 land application of manure, litter, or
 process wastewater;
   (viii) Estimated amount of manure,
 litter, and process wastewater generated
 per year (tons/gallons);
   (ix) Estimated amount of manure,
 litter, and of process wastewater
 transferred to other persons per year
 (tons/gallons); and
   (x) For CAFOs that must seek
 coverage under a permit after December
 31, 2006, certification that a nutrient
 management plan has been completed
 and will be implemented upon the date
 of permit coverage.
  The complete Form 2B application
 containing all of the amendments to the
application is included as an appendix
to this preamble. The required data
elements of the NOI are the same as the
minimum data elements in the revised
                           Form 2B. Where EPA is the permitting
                           authority, it is EPA's intent to use the
                           National rtol Processing Center to
                           process NOIs.
                             What did EPA propose? EPA
                           proposed to require applicants for
                           individual permits to submit the
                           following information in addition to the
                           information required at 40 CFR 122.21(f)
                           and 122.21(i):
                             • Acreage available for agricultural
                           use of manure and wastewater;
                             • Estimated amount of manure and
                           wastewater to be transferred off-site;
                             • Name and address of any person or
                           entity that owns animals to be raised at
                           the facility; directs the activity of
                           persons working at the CAFO; specifies
                           how the animals are grown, fed, or
                           medicated, or otherwise exercises
                           control over the operations of the
                           facility; (in other words, that may
                           exercise substantial operational control);
                             • If a new source, a copy of the draft
                           Permit Nutrient Plan (PNP);
                             • Information about whether buffers,
                           setbacks, or conservation tillage is being
                           used to protect water quality; and
                             • A topographic map (required by
                           Form 1) that identifies the latitude and
                           longitude of the production area and the
                           depth to ground water that may be
                           hydrologically connected to surface
                           water, if any.
                             EPA proposed that similar
                           information be provided in a revised
                           NOI for coverage under an NPDES
                           CAFO general permit.
                             What were the key comments? Most of
                           the comments received on this issue
                           were from the States. Several citizens
                           and associations also submitted
                           comments. Several commenters wanted
                           EPA to delete the requirement that the
                           permittee submit the Permit Nutrient
                           Plan with the permit application. Some
                           States would also like to continue to use
                           their forms and not the revised Form 2B.
                           Some commenters argued that the
                           proposed requirements set an
                          undesirable precedent that is both
                          unnecessary, (because NOI requirements
                          are normally specified in the relevant
                          general permit) and that could
                          negatively affect other industries and
                          reduce the flexibility of State permitting
                          authorities.'
                            The SBAR Panel did not specifically
                          comment on the content of the changes
                          to Form 2B and the NOI, but the Panel
                          noted the substantial number of small
                          entities in the medium range and
                          recommended that EPA carefully
                          consider the burden of any additional
                          certification or application
                          requirements. The Panel further noted
                          that EPA had not ruled out the option
                          of requiring a full permit application
                          from all operations in the medium
  range. The Panel was concerned that
  such an approach may impose a
  significant burden with limited
  environmental benefits and therefore
  recommended that EPA carefully
  consider appropriate streamlining
  options before considering a more
  burdensome approach. Finally, the
  Panel recommended that before adding
  any new application or certification
  requirements for operators in the
  medium range, EPA should carefully
  weigh the burden and environmental
  benefits of expanding the scope of the
  regulations in this Way.
   Rationale. To clarify the subsequent
  discussion, it is important to point out
  that EPA is not adopting the term.
  "Permit Nutrient Plan" in this final rule.
  The Agency is referring to the nutrient
  management planning requirements of
  today's rule simply as the nutrient
 management plan. EPA is not requiring
 the nutrient management plan to be
 submitted as part of the permit
 application for existing sources or new
 dischargers. Instead, the permitting
 authority may establish within the
 permit what information relative to the
 nutrient management plan must be
 submitted. At a minimum, nutrient
 management plans must be maintained
 on-site and be available upon request by
 EPA or the State permitting authority.
 Regarding the changes to the individual
 permit application form and the NOI for
 coverage under a general permit, EPA
 believes that the minimum data
 elements adopted in today's rule will
 provide permitting authorities with the
 essential information needed to evaluate
 permit applications properly and will
 ensure national consistency of
 information received by permit
 authorities. To the extent that a
 permitting authority needs additional
 information to support a permit
 application, it can use other Clean
 Water Act information gathering
 authorities (e.g., section 308 of the Clean
 Water Act) to obtain such information.
 The new data elements correspond with
 the new rule requirements, including
 land application  information.
  In today's final rule, the Agency has
 revised the topographic map
 requirements for  a permit application
 for CAFOs, by specifying that the;CAFO
 must provide a topographic map of the
 geographic area in which the CAFO is
 located showing the specific location of
 the production area. In today's final
rule, the Agency is consolidating all of
the information to be submitted as part
 of a CAFO's request to seek coverage
under an NPDES  permit in 40 CFR
 122.21(i). This information must be
submitted by a CAFO, whether the
CAFO is seeking coverage under an

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           Federal Register/Vol. 68, No.  29 / Wednesday, February 12, 2003/Rules and Regulations      7207
individual permit or a general permit. In
establishing the topographic map
requirement of § 122.21(iKiv), the
Agency is requiring the descriptive
information necessary for permitting a
CAFO, and not including all of the
elements specified in 40 CFR
122.21(9(7), which generally do not
apply to a CAFO's operations.
  m the future, EPA plans to allow the
electronic submission of all NPDES
permit applications such as Forms 1,
2B, and Notices of Intent for general
permits (including attachments such as
maps and diagrams). EPA has proposed
a separate rule dealing with electronic
reporting and recordkeeping (66 FR
46161; August 31, 2001) and is currently
working to address comments and
resolve technical and legal issues. None
of the information collection
requirements being promulgated in
today's rulemaMng are intended to limit
or conflict with the future use of
electronic reporting or recordkeeping.
C. What Are the Requirements and
Conditions in an NPDES Permit?
  All CAFO NPDES permits must
contain a number of requirements and
conditions, including effluent
limitations, special conditions, standard
conditions, and monitoring and
reporting requirements. The December
1996 U.S. EPA NPDES Permit Writers
Manual, 40 CFR 122.41, and 40 CFR
122.42 provide a detailed discussion of
all aspects of an NPDES permit. This
section focuses primarily on the major
elements of a CAFO NPDES permit that
are affected by today's rule. Specifically,
this section describes the effluent
limitations, special conditions
applicable to CAFOs, standard
conditions included in all NPDES
permits, and monitoring and reporting
requirements.
 1. What Are the Different Types of
Effluent Limitations That May Be in a
 CAFO Permit?
  When developing effluent limitations
 for a CAFO NPDES permit, the
 permitting authority must consider
 limits based on applicable technology-
based requirements or any more
 stringent requirements necessary to
 protect water quality. A water quality-
 based effluent limitation is designed to
 protect the quality of the receiving water
 by ensuring State or Tribal water quality
 standards  are met. In cases where a
 technology-based permit limit is not
 sufficiently stringent to meet water
 quality standards, the permit must
 include appropriate water quality-based
 standards. For example, a technology-
 based standard for a CAFO might allow
 overflows from storage lagoons under
certain circumstances. In some cases,
the overflows might have to be
restricted or further controlled to ensure
that water quality standards are met.
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.
As explained in Section IV.A.6 above, if
a CAFO complies with the technical
standards for nutrient management
established by the Director, any
remaining discharges of manure or
process wastewater from the land
application area are considered
agricultural storm water. However, EPA
encourages States to address water
quality protection issues in their
technical standards for determining
appropriate land application practices.
Today's rule does not change any
aspects of water quality-based effluent
limitations in the NPDES regulations.
   There are two general approaches to
developing technology-based
limitations: (1) Using national effluent
limitations guidelines (ELGs) and (2)
using BPJ on a case-by-case basis (in the
absence of ELGs). Today's rule revises
the ELGs for Large  CAFOs. Small and
Medium CAFOs are not subject to the
ELGs; therefore, the permitting authority
will rely on BPJ to  establish technology
requirements for Small and Medium
CAFOs. Revisions  to the ELGs are
discussed in detail below.
2. Effluent Limitations Guidelines for
Large CAFOs
   The effluent limitations section in
NPDES permits is the primary
mechanism for controlling discharges of
pollutants to waters of the U.S. This
 section of the permit describes the
 specific limitations, in either a narrative
 or numeric form, that apply to the
 permittee. The permit contains either
 technology-based effluent limits (those
based on a determination of the degree
 of pollutant reduction that can be
 achieved by  applying pollution control
 technologies or practices) or water
 quality-based effluent limits (those
 based on the condition of the receiving
 water body)  or both, and it may contain
 additional BMPs, as needed. This
 section discusses the ELGs established
 for Large CAFOs.
   Today's final rule establishes new
 ELGs for Part 412, Subpart C, which
 applies to beef cattle, dairy cattle, and
 heifers; and Part 412, Subpart D, which
 applies to veal calves, swine, and
 poultry (chickens  and turkeys). Today's
 rule also revises the applicability of Part
 412, Subpart A to  cover only horses and
 sheep.
  Requirements for Large CAFOs ;are
being established under the authority of
Best Practicable Control Technology
Currently Available (BPT), Best
Available Technology Economically
Achievable (BAT), Best Conventional
Pollutant Control Technology .(BCT),
and NSPS, consistent with the factors
for consideration under the Clean Water
Act, as discussed in Sections II.A;2 and
IV.C.2.f of this preamble.
  a. To which CAFOs do the effluent
guidelines apply?. In today's final rule,
EPA is revising the 1974 ELGs for-beef
cattle, dairy cattle, veal calves, swine,
and poultry. Consistent with the 1974
ELG regulation, EPA is continuing to
apply technology-based ELGs only to
those operations which are defined as
Large CAFOs at 40 CFR 122.23. In the
case of Medium or Small CAFOs,:or
CAFOs not otherwise subject to Part
412, effluent limitations will be  •
established on a case-by-case basis by
the permitting authority using BPJ.
   This final rule removes language
referring to the type of manure handling
or watering system employed at laying
hen and broiler operations; as a result,
it expands the scope  of the rule to also
address chicken operations with dry
litter management systems. The term
"dry" does not mean that no
wastewaters are associated with these
types of operations. For example,
poultry waste includes manure, poultry
mortalities, litter, spilled water, Waste
feed, water associated with cleaning
houses, runoff from litter stockpiles, and
runoff from land where manure has
been applied. Today's rule adds explicit
references to veal operations and
includes requirements for Large veal
CAFOs under Part 412, Subpart D. (Veal
calves were included in the 1974 ELGs
as part of "slaughters steers and ;
heifers.") Today's rule further expands
the applicability of the effluent
 guidelines to cover Large heifer CAFOs
 and operations that confine immature
 swine (i.e., swine weighing less than 55
 pounds).
   What did EPA propose? In the
 proposed rule, EPA applied the .
 technology-based ELGs to all Large
 CAFOs (the 1974 ELGs apply to only
 Large  CAFOs) and proposed to expand
 the scope of the rule to apply to :
 Medium CAFOs as well. Small CAFOs
 were excluded from  the applicability of
 the ELGs in the proposed rule, and the
 limits included in their permits were to
 be based on BPJ. EPA also proposed to
 expand the scope of the rule to include
 heifer operations,  immature swine
 operations (e.g., swine nurseries),, and
 chicken operations with dry litter
 management systems.

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 72OS      Federal Register /Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
   What were the key comments? EPA
 received a variety of comments
 regarding the size of operation to which
 the ELGs should apply. A number of
 comments favored retaining the
 framework of the 1974 ELGs, limiting
 the applicability .of the ELGs to Large
 CAFOs and relying on the use of BPJ for
 Small and Medium CAFOs. Some
 commenters favored allowing even
 broader use of BPJ, with the permitting
 authority establishing BPJ-based permit
 limits for all CAFOs, regardless of size.
 Conversely, other commenters suggested
 applying the ELG requirements to  all
 CAFOs, including Small and Medium
 CAFOs. In general, commenters
 expressing support for applying ELG
 requirements to Small and Medium
 CAFOs believe that basing permit
 requirements on BPJ will lead to a lack
 of uniformity in permit development.
 They believe the permit writers should
 not have an inappropriate amount of
 flexibility and there should be
 consistent effluent limitations for all
 CAFOs.
  The SBAR Panel provided comments
 to EPA on this topic during the
 development of the proposed rule,
 suggesting that EPA consider less
 stringent ELGs for Medium CAFOs or
 allow permits for Medium CAFOs  to be
 developed based on BPJ. The SBAR
 Panel stated that providing a
 mechanism for permitting authorities to
 establish less stringent guidelines for
 smaller facilities, based on
 consideration of economic achievability,
_could result in permit conditions that
 are more appropriately tailored to
 smaller operations and reduce the
 overall financial burden on the industry.
  Rationale. The ELGs being
 promulgated in today's rule apply  only
 to Large CAFOs, which is consistent
 with the approach used for the 1974
 ELG regulation. EPA is not extending
 the ELG requirements being codified at
 40 CFR Part 412 to Small or Medium
 CAFOs because setting the permit
 limitations for these facilities using BPJ
 allows for the establishment of permit
 conditions that are more appropriately
 tailored to and more directly address the
 site-specific conditions that led to the
 facility being defined or designated as a
 CAFO. This approach is consistent with
 the manner in which permit
requirements for Small and Medium
 CAFOs have been established prior to
today's rule.
  The ELGs promulgated in today's rule
mimic the fundamental structure
embodied in the NPDES provisions. The
NPDES provisions at Part 122 establish
a threshold (in terms of numbers of
animals) above which every AFO is
defined as a CAFO (specifically, these
 are defined as Large CAFOs). Similarly,
 EPA has determined that, because of the
 nature of these Large CAFOs and the
 potential risk discharges from these
 operations pose to the environment, the
 ELGs promulgated today should apply
 to Large CAFOs. However, for the
 reasons discussed below and consistent
 with the approach used in establishing
 the 1974 ELGs, EPA is not establishing
 ELGs for Small or Medium CAFOs.
 EPA's analyses, based on USDA data,
 sho.w that small and medium AFOs are
 more likely than Large CAFOs to have
 a sufficient land base for utilizing
 manure nutrients at rates consistent
 with appropriate agricultural utilization
 of nutrients. Small and medium AFOs
 are defined or designated as CAFOs
 only when certain conditions that pose
 an environmental risk are present at the
 operation. Since these smaller
 operations become CAFOs only if
 certain conditions are present, and the
 highly site-specific conditions that
 trigger any particular operation being
 defined or designated as a Small or
 Medium CAFO will vary from facility to
 facility, discharges from Small and
 Medium jCAFOs  are more appropriately
 controlled through NPDES permit
 limitations on a BPJ basis. EPA expects
 that, by tailoring the permit
 requirements for Small and Medium
 CAFOs on a BPJ basis, these smaller
 facilities will be able to better and more
 efficiently target  their more limited
 resources to reducing their
 environmental impacts. This increased
 flexibility for setting the permit
 requirements for Small and Medium
 CAFOs will reduce the overall financial
 burden on the industry. Consistent with
 the Unified National AFO Strategy, EPA
 is focusing today's ELGs on those larger
 operations that present the greatest
 potential risk to water quality.
  EPA isjextending the applicability of
 the ELGs to heifer operations and
 operations that confine immature swine
 (i.e., swine weighing less than 55
 pounds). Increasingly, swine operations
 may specialize in a production phase,
 such as a nursery that confines swine
 under 55|pounds. In the dairy sector,
 some operators prefer to obtain their
 dairy cattle from heifer-raising
 operations. These heifer operations
 specialize in raising immature dairy
 cattle until  the cattle are ready for their
 first calving. These operations for
 immature animals are increasing in both
 size and number, and they operate
 similarly to other CAFOs. Therefore,
EPA is today including immature swine
under Subpart D (swine/poultry/veal)
and heifer operations under Subpart C
 (beef/dairy/heifer) of the ELGs.
   In addition, EPA is expanding the
 scope of the ELGs to address chicken
 operations with dry litter management
 systems to better address water quality
 impacts associated with both storage
 and land application of manure, litter,
 and process wastewaters. EPA believes
 that improper storage, as well as ,;
 improper land application rates that
 exceed the appropriate agricultural
 utilization of nutrients, has contributed
 to water quality problems, especially in
 areas with large concentrations of
 poultry production. Nutrients from large
 poultry operations continue to
 contaminate surface waters because of
 rainfall coming in contact with dry
 manure that is stacked in exposed  areas,
 accidental spills, etc. In addition, land
 application remains the primary :
 management method for significant
 quantities of poultry litter (including
 manure generated from facilities Using
 dry systems). Most poultry operations
 are located on smaller parcels of land in
 comparison to other livestock sectors,
 placing increased importance on the
 proper management of the potentially
 large amounts of manure, litter, and
 process wastewaters that they generate.
   In the 1974 ELG regulations, EPA
 established requirements in a manner
 that placed CAFOs into one of twb
 groups, or subcategories, based on  the
 type of animals at the operation: One
 subcategory established requirements
 for ducks only; the second subcategory
 established identical ELG requirements
 for CAFOs with horses, sheep, slaughter
 steers and heifers  (including veal;
 calves), dairy cattle, chickens, turkeys,
 and swine.
   Today's rule establishes ELGs  based
 on segregating the animal sectors ;into
 four different subcategories. The ELG
 regulations at Part 412, Subpart A now
 apply only to Large CAFOs with horses
 and sheep, but the ELG requirements for
 these operations remain unchanged by
 today's rule. Part 412, Subpart B
 continues to apply only to CAFOs with
 at least 5,000 ducks and these   '
 requirements also remain unchanged by
 today's rule. Today's  rule segregates the.
 remaining animal  types covered  by the
 ELGs into two additional subcategories.
 Part 412, Subpart C applies to Large
 CAFOs with dairy or beef cattle other
 than veal (heifer operations are covered
 by this subpart}, and Part 412, Subpart
 D applies to Large CAFOs with swine,
 veal, or poultry. EPA  developed these
 subcategories to better reflect
 similarities in production and waste
 management practices among the
 operations grouped together.
  The operations in Subpart C
predominantly use production and
waste management practices that;differ

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           Federal Register/Vol. 68, No. 29/Wednesday,  February 12, 2003/Rules and Regulations      7209
substantially from those practices used
at operations in Subpart D. Large swine,
poultry, and veal calf operations
predominantly maintain their animals
in confinement housing as opposed to
the open outdoor lots used at the vast
majority of large beef feedlots, heifer
operations, and dairies (while dairy
cattle at many dairies spend much of,
their time indoors either in the milking
parlor or in barns, most dairy cattle also
have access to outdoor areas similar in
many respects to the outdoor areas at
beef feedlots). The open outdoor lots
present at beef feedlots expose large
areas to precipitation,  necessitating the
ability to collect storm water runoff in
retention ponds. Heifer operations
(other than those that are pasture-based)
are configured and operated in a manner
very similar to beef feedlots, and thus
have very similar waste management
practices. Dairies also frequently keep
animals in open areas for some period
of time, whether it is simply the
pathway from the barn to the milk
house or an open exercise lot. Storm
water runoff from these open areas must
be collected in addition to any storm
water that contacts food or silage. As is
the case for beef feedlots and heifer
operations, the runoff volume from the
exposed areas is a function of the size
of the area where the cattle are
maintained, and the amount of
precipitation.
  Because swine, poultry, and veal
calves are predominantly maintained in
confinement housing, the waste
management practices at Large CAFOs
covered by Subpart D  differ
substantially from the practices at
Subpart C operations. These
confinement operations are able to
manage manure largely in a relatively
dry form, or contain liquid wastes in
storage structures such as lagoons,
tanks, or underhouse pits. Broiler and
turkey operations generate a dry manure
which can be kept covered either under
a shed or with tarps. Laying hen
operations with dry manure handling
practices usually store manure below
the birds' cages and inside the
confinement building. Nearly all swine,
veal, and poultry operations confine
their animals under roof, avoiding the
use of open animal confinement areas
that generate large volumes of
contaminated storm water runoff. These
Subpart D operations  differ most
notably from Subpart  C operations in
that they, inmost cases, do not have to
manage the large volumes of storm
water runoff that must be collected at
Subpart C operations. While Sufapart D
operations (hat manage wastes in
uncovered lagoons must be able to
accommodate precipitation, they are
largely able to divert uncontaminated
storm water away from the lagoons and
minimize the volume of wastes they
must manage.
  The statutory factors considered as a
basis for subcategorization are discussed
in Section IV.C.2.f of the preamble and
in the Technical Development
Document.
  b. What are the land application
effluent guidelines for all Large CAFOs
covered by Subparts CandD (beef,
dairy, heifer, swine, poultry, and veal)?
The ELGs  described in this section
apply to all Large CAFOs covered by
Part 412, Subpart G (beef, dairy, and
heifer) and Subpart D (swine, poultry,
and veal).  These BPT, BCT, BAT, and
NSPS requirements are being
established for the reasons discussed
below in this section, and consistent
with the factors for consideration under
the Clean Water Act, as discussed in
Sections H.A.2 and IV.C.2.f of this
preamble.
  Today's final rule establishes
requirements to ensure the proper
application of manure, litter, and other
process wastes and wastewaters to land
under the  control of Large CAFOs. The
ELGs established by this rule require
Large CAFOs to prepare and implement
a site-specific nutrient management
plan (described in detail in Section
IV.C.3), for manure, litter, and other
process wastewater applied to land
under their ownership or operational
control. In addition to preparing the
site-specific nutrient management plan,
and the recordkeeping and reporting
requirements described in Section IV.D,
Large CAFOs need to conduct the
following  land application BMPs and
can use other BMPs that assist in
complying with the ELGs:
  •  Land-apply manure, litter, and
other process wastewaters in accordance
with a nutrient management plan that
establishes application rates for each
field based on the technical standards
for nutrient management established by
the Director.
  •  Collect and analyze manure, litter,
and other process wastewaters annually
for nutrient content, including nitrogen
and phosphorus.
  •  At least once every five years,
collect and analyze representative soil
samples for phosphorus content from all
fields where manure, litter, and other
process wastewaters are applied.
  •  Maintain a setback area within 100
feet of any down-gradient surface
waters, open tile line.intake structures,
sinkholes, agricultural well heads, or
other conduits to surface waters where
manure, litter, and other process
wastewaters are not applied. As a
compliance alternative, the CAFQ may
elect to establish a 35-foot vegetated
buffer where manure, litter, or other
process wastewaters are not applied. For
further flexibility the CAFO may
demonstrate to the permitting authority
that a setback or vegetated buffer is
unnecessary or may be reduced.
  • Periodically conduct leak
inspections of equipment used for land
application of manure, litter, or process
wastewater.
  • Maintain on-site the records
specified in 40 CFR 412.37(c). These
records must be made available to the
permitting authority and the Regional
Administrator, or his or her designee,
for review upon request. Records must
be maintained for 5 years from the date
they are created.
  Today's rule requires Large CAFOs to
determine and implement site-specific
nutrient application rates that are
consistent with the technical standards
for nutrient management established by
the permitting authority. Permitting
authorities have discretion in setting
technical standards that minimize
phosphorus and nitrogen transport to
surface water. Technical standards for
nutrient management should
appropriately balance the nutrient needs
of crops and potential adverse water
quality impacts in establishing methods
and criteria for determining appropriate
application rates. The permitting
authority may use the USDA Natural
Resource Conservation Service (NRCS)
Nutrient Management Conservation
Practice Standard, Code  590, or other
appropriate technical standards, as
guidance for development of the
applicable technical standard. The
current NRCS Nutrient Management
technical standard describes three field-
specific risk assessment methods to
determine whether the land application
rate is to be based on nitrogen or
phosphorus, or whether land
application is to be avoided. These three
methods are:  (1) Phosphorus Index; (2)
Soil Phosphorus Threshold Level; and
(3) Soil Test Phosphorus Level. The
permitting authority has the discretion
to determine  which of these three
methods, or other State-approved
alternative method, is to be used.
   The field-specific risk assessment
provides CAFOs with the information
needed to determine if manure nutrients
should be applied at a nitrogen or
phosphorus application rate, or if no
manure application is appropriate. In
today's rule, EPA clarifies that CAFOs
may apply conservation practices, best
management practices, or management
activities to their land application areas,
which in aggregate may reduce field
vulnerability to off-site phosphorus

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 721O     Federal Register/Vol.  68,, No. 29/Wednesday, February 12,  2003/Rules and Regulations
 transport to surface waters. This may
 reduce the field-specific risk rating to a
 level consistent with manure
 application at a nitrogen rate in
 accordance with the technical standard
 established by the Director.
  When establishing technical
 standards for nutrient management, the
 permitting authority also shall include
 appropriate flexibilities for any CAFO to
 implement nutrient management
 practices to comply with the standards.
 Flexibilities should include
 consideration of multi-year phosphorus
 application (also called phosphorus
 banking) on fields that do not have a
 high potential for phosphorus runoff to
 surface water, implementation of
 phosphorus-based nutrient management
 phased-in over time, and other
 components as determined appropriate
 by the Director.
  EPA recognizes that, under some
 conditions, CAFOs may experience
 practical difficulties in applying manure
 nutrients to fields at a low phosphorus
 rate. Application equipment at some
 CAFOs may be unable to deliver the
 small phosphorus amount needed by
 crops in a single year. Thus, EPA is
 clarifying in this rule that CAFOs may
 elect to use a  multi-year phosphorus
 application rate in accordance with the
 technical standards established by the
 Director. A multi-year approach allows
 a single application of phosphorus
 applied as manure at a rate equal to the
 recommended phosphorus application
 rate or estimated phosphorus removal in
 harvested plant biomass for the crop
 rotation or multiple years in the crop
 sequence. Crop rotations may vary in
 length depending on the crops
 produced, geographic area, and other
 site-specific conditions. For example, a
 two-year rotation may be common in
 some areas, while a three-year rotation
 may be more common in others.
 Rotations involving grains or hays, such
 as alfalfa, may run for five or more
 years. In other instances, crops are
 produced in a continuous cycle. Many
 wastewater spray fields are permanently
 in hay and grasses. In practice, multi-
 year phosphorus applications typically
 would be based on applying manure
 nutrients at a rate achievable with a
 CAFOs application equipment, and
 determining the removal rate in order to
 calculate the length of time until the
 next manure nutrient application
window. Thus, multi-year applications
 may provide the phosphorus needed for
 a few to many years. The field would
 not receive additional phosphorus
 applications until the amount applied in
the single year had been removed
through plant uptake and harvest.
However, under any multi-year
application; the rate at which manure
nutrients are applied would not exceed
the annual nitrogen recommendation of
the year of application. Nor would
application be made on sites determined
inappropriate based on a high potential
for phosphorus runoff to surface water.
The appropriateness of multi-year
phosphorus application would be based
on a field-specific risk assessment in
accordance (with the technical standard
established by the Director.
   What did EPA propose? The proposed
rule included ELGs that would have
required CAFOs to develop and submit
a certified Permit Nutrient Plan, which
would be reviewed annually and
recertified every five years, and would
have limited manure spreading on all
land owned or under the operational
control of the CAFO to the nitrogen-
based rate, unless soil or other field
conditions at the CAFO warranted
limiting the  application rate to the more
stringent phosphorus-based rate. EPA
also proposed to require a series of land
application ;BMPs,  including those
listed above in this section of the
preamble.
   What were the key comments? EPA
received a number of comments
supporting the type and frequency of
manure, litter, process wastewater, and
soil sampling. Some commenters were
opposed to establishing the proposed
phosphorus-based standard in nutrient
management plans, while other
commenters stated that EPA should
establish phosphorus-based standards
for all CAFOs. In addition, some
commenters were opposed to the
inclusion of specific manure, litter, or
wastewater application rates in NPDES
permits, but supported the development
of site-specific rates in a nutrient
management plan.
  EPA received many comments on the
requirement to prohibit land application
of manure, litter, and other process
wastewaters within a 100-foot setback.
Some commenters supported the 100-
foot setback} however, the majority of
commenters expressed opposition to
establishment of a setback, in many
cases stating that the setback restriction
will unnecessarily reduce the available
acreage for manure application and will
be costly to implement because of its
inflexibility t The commenters also
stated that if should be left to States or
a nutrient management planner to
determine whether a setback or
vegetated buffer is warranted, and to
determine the size of such areas. The
proposed rule considered allowing
CAFOs to establish a 35-foot vegetated
buffer strip as an alternative to the 100-
foot setback. Many commenters were  in
favor of an approach that offers
 flexibility to the CAFO and to the:
 nutrient management planner to
 incorporate site-specific considerations
 while utilizing the maximum amqunt of
 manure nutrients on site. They
 suggested that in cases where the
 operation can demonstrate that manure
 application will not affect surface water,
 such as when application occurs down-
 gradient of the surface water, no setback
 or buffer should be required.
  The SBAR Panel noted the high cost
 of phosphorus-based application.
 relative to nitrogen-based application
 and supported EPA's intent to require
 the use of a phosphorus-based
 application rates only where determined
 necessary based on field-specific
 conditions. According to the SBAR
 Panel, if the soil is not phosphorus-
 limited, then nitrogen-based application
 should be allowed. The SBAR Panel
 recommended that EPA consider:
 leaving the determination of whether to
 require the use of phosphorus-based
 rates to BPJ and that EPA work with
 USDA in exploring such an approach.
  Rationale. The nutrient-based '
 limitations in this rule will reduce the
 discharge of nitrogen, phosphorus, and
 other pollutants in field runoff by
 restricting the amount of manure/ litter,
 and other process wastewaters that may
 be applied to the amount that is
 appropriate for agricultural purposes,
 according to technical standards :
 established by the permitting authority.
 Application of manure, litter, and other
 process wastewaters in excess of the
 crop's nutrient requirements  increases
 the pollutant runoff from fields because
 the crop does not need these nutrients,
 increasing the likelihood of their being
 released to the environment. In many
 cases, the application of manure at a
 nitrogen-based rate is consistent with
 appropriate agricultural utilization of
 nutrients. Soils are able to retain the
 amounts of phosphorus that would be
 applied, or other site-specific conditions
 (e.g., the types of conditions assessed
 through the phosphorus index
 approach] are such that the runoff of
 phosphorus and other pollutants or the
 likelihood of the pollutants reaching
 surface waters are adequately
 controlled.
  However, allowing all manure to be
 spread at the nitrogen-based application
rate may not always ensure appropriate
 agricultural utilization of nutrients. In
 areas that have high to very high
phosphorus buildup in the soils, .
allowing continued application at a
nitrogen-based rate could allow for
continued discharge of phosphorus from
the CAFO's cropland and consequently
may not adequately control phosphorus
discharges from these areas. In addition,

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           Federal Register/Vol. 68, No. 29/Wednesday, February  12,  2003/Rules and Regulations      7211
EPA believes that in some instances
phosphorus levels in soils are so high,
or site-specific conditions (e.g., highly
erodible soils) are such that any
application of manure, litter, or other
process wastewaters would be
inconsistent with appropriate
agricultural utilization of nutrients and
would lead to excessive levels of
nutrients and other pollutants in runoff.
EPA expects that these factors will be
taken into account as State permitting
authorities develop appropriate
technical standards for the land
application of manure by CAFOs.
  The trace metals present in animal
wastes, xvhen applied to fields at either
nitrogen- or phosphorus-based rates, are
made available to plants in sufficient
quantities that they provide many of the
micronutrients necessary for proper
plant growth. Excessively high  levels of
these trace metals, however, can inhibit
plant growth. By limiting manure
applications to the nitrogen- or
phosphorus-based rate, CAFOs will also
be limiting the rate at which metals are
applied to fields and thus reduce the
potential for applying excessive
amounts of the trace metals.
  Nitrogen-based application rates are
generally based on the following factors:
(1) The nitrogen requirement of the crop
to be grown based on the operation's
soil type and crop; and (2) realistic crop
yields that reflect the yields obtained for
the given field in prior years or, if not
available, from yields  obtained for the
same crop at nearby farms or county
records. Once the nitrogen requirement
for the crop is established, the manure
application rate is generally determined
by subtracting any other sources of
nitrogen available to the crop from the
crop's nitrogen requirement. These
other sources of nitrogen can include
residual nitrogen in the soil from
previous applications of organic
nitrogen, nitrogen credits from previous
crops of legumes and crop residues, or
applications of commercial fertilizer,
irrigation water, and biosolids.
Application rates are based on the
nitrogen content in the manure and
should also account for application
methods, such as incorporation, and
other site-specific practices.
Phosphorus-based application rates
generally take into account the
phosphorus requirements of the crop, as
well as the amount of phosphorus that
will be removed from the field  when the
crop is harvested. EPA expects that
State standards will generally provide
CAFOs the flexibility to determine,
separately for each field, whether
manure is to be applied at the nitrogen-
or the phosphorus-based application
rate. Thus, EPA expects that as the ELG
requirements are implemented, some
CAFOs will be able to apply manure at
the nitrogen-based rate for all of their
fields; some CAFOs will be limited to
the phosphorus-based rate on all of their
fields; and the remaining CAFOs will
have some fields that are limited to the
phosphorus-based rate and some fields
where manure can be applied at the
nitrogen-based rate. In making these
field-specific determinations, CAFOs
must use the method authorized by the
permitting authority.
  Today's rule 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. As a
compliance alternative to the 100-foot
setback, the CAFO may elect to establish
a 35-foot vegetated buffer where
application of manure, litter, and other
process wastewaters are not applied; or
may demonstrate to the permitting
authority that a setback or vegetated
buffer is unnecessary or may be reduced
because implementation of alternative
conservation practices or site-specific
conditions will provide pollutant
reductions equivalent to or better than
the reductions that would be achieved
by the 100-foot setback.
  A setback is an area where manure,
litter, or other process wastewaters are
not applied, but crops may continue'to
be grown. The transport of nutrients and
other pollutants 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. The setback achieves pollutant
reductions by increasing the distance
pollutants from the land application of
manure, litter, or other process
wastewaters have to travel to reach
surface waters. The setback
requirements established by this rule
will minimize the potential runoff of
pathogens, hormones such as estrogen,
and metals and reduce the nutrient and
sediment runoff.
  Because a setback may not be the
most cost-effective practice to control
runoff in all cases, this rule includes a
compliance alternative that allows the
CAFO to establish a 35-foot vegetated
buffer in lieu of the 100-foot setback A
vegetated buffer is a permanent strip of
dense perennial vegetation, where no
crops are grown, that slows runoff,
increases water infiltration, absorbs
nutrients, and traps pollutants bound  to
sediment. The vegetated buffer is more
effective (on a per-foot of width basis)
than the setback at reducing pollutant
runoff, therefore the compliance
alternative allows the buffer width to be
smaller than the setback. Both
approaches are expected to achieve
comparable pollutant reductions. (EPA
decided not to require all fields
receiving manure, litter, or other process
wastewaters to have a vegetated buffer
because that would unnecessarily
require CAFOs to take that portion of
the cropland out of production.) :
  The setback requirements included in
today's rule contain an additional
compliance alternative that allows the
CAFO to implement alternative
conservation practices that will provide
pollutant reductions equivalent to or
better than the 100-foot setback. In some
cases, the CAFO may be able to
demonstrate to the permitting authority
that no setback is necessary based on
site-specific conditions, such as when
the surface water is located up-gradient
from the area of manure application.
  Manure must be sampled at least once
per year and analyzed for its nutrient
content, including nitrogen and
phosphorus. EPA believes that annual
sampling of manure is the minimum
frequency to provide the necessary
nutrient content on which to establish
the appropriate application rate. The
nutrient composition of manure varies
widely among farms because of
differences in animal species and
management, and manure storage: and
handling practices. The only method
available for determining the actual
nutrient content of manure for a
particular operation is laboratory
analysis. If the CAFO applies its manure
more frequently than once per year, it
may choose to sample the manure more
frequently. Sampling the manure ;as
close to the time of application as
practical provides the CAFO with a
better measure of the nitrogen content of
the manure. Generally,  nitrogen content
decreases through volatilization during
manure storage when the manure is
exposed to air. All CAFOs must collect
and analyze soil samples for
phosphorus at least once every 5 years
from all fields under their control that
receive manure. Soil tests are an
important tool to determine the crop
phosphorus needs and to determine the
optimum application rate. Crop rotation
cycles vary, and State programs require
soil sampling at varying frequencies that
in many cases are tied to the soil type.
EPA requires soil sampling at least once
every 5 years to correspond with the
permit cycle for CAFOs, although States
may require more frequent sampling.
Without manure and soil analyses,
CAFOs might apply more commercial
fertilizer than is needed or spread too
much manure on their fields. Either

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7212     Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
practice can result in overfertilization,
affecting crop yields and increasing the
pollutant runoff from fields.
  Records of the application of manure
and wastewater must be maintained on
site. These records are: (1) The expected
crop yields; (2) the date manure, litter,
or process wastewater is applied to each
field; (3) the weather conditions at the
time of application and 24 hours before
and after application; (4) test methods
used to sample and  analyze manure,
litter, process wastewater, and soil; (5)
results from manure and soil sampling;
(6) explanation of the basis for
determining manure application rates,
as provided in the technical standards
established by the Director; (7) the
calculations showing the total nitrogen
and phosphorus to be applied to each
field, including sources other than
manure,-litter, or process wastewater;
[8) total amount of nitrogen and
phosphorus actually applied to each
field, including documentation of
calculations of the total amount applied;
(9) the method used to apply the
manure, litter, or process wastewater;
and (10) dates of manure application
equipment inspection. Crop yields and
the manure and soil testing  data, as well
as records on applications conducted in
previous years, are used to determine
whether to apply manure on a nitrogen
or phosphorus basis and the amount of
nutrients to be applied. The CAFO and
the permitting authority will use the
remaining land application  records to
track the amount of nutrients applied
and to ensure that application occurs
consistent with the nutrient
management plan.
  EPA believes the land application
rates, the 100-foot setback (or the use of
equivalent practices authorized by the
compliance alternative), and the other
land application BMPs included in this
rule will ensure that manure, litter, and
other process wastewaters are applied in
a manner consistent with appropriate
agricultural utilization of the nutrients
in manure, litter, and other process
wastewaters. Effluent limitations in the
form of BMPs are particularly suited to
the regulation of CAFOs. For many
CAFOs, controlling  discharges to
surface waters is largely associated with
controlling storm water. Storm water
discharges can be highly intermittent,
are usually characterized by very high
flows occurring over relatively short
time intervals, and carry a variety of
pollutants whose nature and extent vary
according to geography and local land
use. Water quality impacts,  in turn, also
depend on a wide range of factors,
including the magnitude and duration
of rainfall events, the time period
between events, soil conditions, the
fraction of land that is impervious to
rainfall, other land use activities, and
the ratio of storm water discharge to
receiving water flow. CAFOs are
required to apply their manure, litter,
and other process wastewaters to land
in accordance with the site-specific
nutrient management practices that
ensure appropriate agricultural
utilization qf the nutrients in the
manure, litter, and other process
wastewaters. The manure provides
nutrients, organic matter, and
micronutrients, which are very
beneficial to crop production when
applied appropriately. The amount or
rate at which manure can be applied
that ensures appropriate agricultural
utilization of nutrients varies based on
site-specific factors at the CAFO.  These
factors include the crop being grown,
the expected crop yield, the soil types
and soil concentration of nutrients
(nitrogen and phosphorus), and the
amount of other nutrient sources  to be
applied. For these reasons, EPA has
determined that relying exclusively on
numeric ELGs to control these
discharges i? infeasible. EPA has
determined that the BMPs specified in
today's rule represent the minimum
elements of an effective BMP program
and are necessary to control point
source discharges to surface water. In
this rule, EPA is promulgating only
those BMPs that are appropriate on a
nationwide basis, while giving States
and permittees the flexibility to
determine the appropriate practices at a
local level to achieve the effluent
limitations. The BMPs included in this
rule are necessary to ensure appropriate
agricultural utilization of nutrients in
manure, litter, arid other process
wastewater.!
  EPA rejected establishing national
requirements in this rule that would
prohibit manure application to frozen,
snow-covered, or saturated ground. As
envisioned, the prohibition considered
(but also rejected) at the time of
proposal would have required CAFOs to
install sufficient storage capacity to hold
manure for the period of time during
which the ground is frozen,  snow-
covered, or saturated. According to
EPA's analyses, to meet such a
requirement CAFOs in some areas, such
as northern States, would need to be
able to store manure, litter, and other
process wastewaters for up to 270 days,
depending on the amount of
precipitation and severity of winter. In
practice, such a prohibition could result
in some facilities needing storage to
hold manure and wastes for 12 months
to allow for spreading manure at times
that coincide with crop growing
periods.
  EPA rejected establishing these
requirements in the final ELGs because
pollutant runoff associated with the
application of manure, litter, or other
process wastewaters on frozen, snow-
covered, or saturated ground is
dependent on a number of highly .site-
specific variables, including climate and
topographic variability, distance to
surface water, and slope of the land.
Such variability makes it difficult to
develop a national technology-based
standard that is reasonable and does not
impose unnecessary cost on CAFO
operators. Further, given the site-!
specific nature of the cropland arid
runoff characteristics, quantifying  the
pollutant reduction associated"with
these requirements is difficult and
imposing such requirements through a
national regulation could divert
resources from other technologies and
practices that are more effective.
Therefore, EPA believes that
requirements limiting the application of
manure, litter, or other process
wastewaters to frozen, snow-covered, or
saturated ground are more appropriately
addressed through NPDES permit limits
established by the permitting authority.
Although EPA has decided not to
include requirements limiting the
application of manure, litter, or other
process wastewaters to frozen, snow-
covered, or saturated ground in today's
rule, the permitting authority retains the
authority and is encouraged to include
these types of requirements as
technology-based standards using BPJ in
NPDES permits as appropriate.  .
  EPA is establishing provisions at 40
CFR 122.42(e) for permitting authorities
to include in NPDES permits a
requirement for the  CAFO to develop
and implement a nutrient management
plan. Under these provisions, NPDES
permits are to include prohibitions,
practices, and procedures to achieve
compliance with 40 CFR part 412,  when
applicable, or effluent limitations based
on BPJ when 40 CFR part 412 does not
apply-
  As discussed above in this section
and in section IV.C.3, today's rule
requires CAFOs to develop and  ;
implement a nutrient management plan.
For Large CAFOs, this requirement is
reflected in the effluent guideline as the
BPT/BCT/BAT/NSPS limitations on
land application discharges (see 40 CFR
412.4(c)). Other CAFOs are also subject
to the requirement to develop and
implement a nutrient management plan
(see 40 CFR 122.42(e)(l)), although the
permitting authority would establish
precise elements of the plan, such as
manure application rates, on a BPJ basis.

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           Federal Register/Vol. 68, No. 29/Wednesday, February  12,  2003/Rules and Regulations     7213
For the reasons detailed below, EPA has
concluded that there are certain
constraints, including currently
insufficient infrastructure capacity, that
prevent Large CAFOs (except new
sources) from being able to develop and
implement the land application BMPs,
including the nutrient management
plan, by the date they will need to seek
permit coverage under the requirements
of this rule. Therefore, the ELGs
promulgated today require Large CAFOs
that are existing sources to implement
the land application requirements at 40
CFR 412.3(c) by December 31, 2006
because that is the date when EPA is
assured that the required planning is in
fact available to the large number of
regulated sources and, therefore,
becomes BPT/BCT/BAT. (EPA has
similarly concluded that Small and
Medium CAFOs subject to the NPDES
provisions for nutrient management
plans also will be unable to develop and
implement a nutrient management plan
by the date they will need to seek
NPDES permit coverage under the
requirements of this rule, for reasons of
insufficient infrastructure. Therefore,
EPA is requiring Small and Medium
CAFOs that are existing sources to
develop and implement nutrient
management plans by December 31,
2006.) For all  CAFOs that are new
sources (i.e., Large CAFOs constructed
after the effective date of this rule), the
land application requirements at 40 CFR
412.4(c) apply immediately, as
discussed further below.
  Nutrient management plans are
complex documents and their
preparation requires knowledge in a
number of areas. To adequately address
the requirements established by today's
rule, the nutrient management plan
should be prepared by individuals
(either CAFO  owners and operators, or
their technical consultants) who are
competent in or have an understanding
of a number of technical areas,
including soil science and soil fertility,
nutrient application and management,
crop production, soil and manure
testing and results interpretation,
fertilizer materials and their
characteristics, BMPs for the
management of nutrients and water, and
applicable laws and regulations.
Because of this, EPA believes it is
reasonable to anticipate that many
CAFOs will choose to acquire the
services of consultants with the
technical expertise to prepare nutrient
management plans and make
recommendations regarding the
implementation of the land application
BMPs (e.g., whether to use one of the
authorized compliance alternatives in
lieu of the setback requirements; options
for reducing the nutrient content of
manure, such as treatment or alternative
feeding strategies; modifications to
cropping strategies and land application
practices).
  Further, while the provisions of
122.42(e)(l) and 412.4(c)(l) do not
specifically require nutrient
management plans to be prepared  or
reviewed by certified experts, EPA
recognizes that USDA, and other
organizations such as the American
Society of Agronomy, Crop Science
Society of America, Soil Science Society
of America, and a number of land grant
universities, recommend that nutrient
management plans be prepared by
trained and certified specialists. USDA
has published technical guidance that
calls for the development of CNMPs and
details the specific components and
considerations that should be addressed
during CNMP development. The
Unified AFO Strategy, developed jointly
by USDA and EPA, defines a national
objective for all AFOs to develop
CNMPs to ensure appropriate
agricultural utilization of nutrients. (The
vast majority of these CNMPs will  be
developed under voluntary programs.)
EPA is not requiring CAFOs to use
certified experts in preparing the
nutrient management plans and is not
requiring CAFOs to develop CNMPs, but
the regulatory requirements for nutrient
management plans are designed to
dovetail with USDA standards for
CNMPs so that CAFOs can meet EPA's
nutrient management plan requirements
and USDA's CNMP objectives in a
single undertaking. It is therefore
reasonable to expect that many CAFOs
will opt to have their nutrient
management plans prepared by certified
specialists, an outcome that EPA
encourages.
  As discussed in more detail below,
EPA interprets Section 301(b)(2) of the
CWA to require that, for any effluent
guideline promulgated, or any
technology-based limitation established
on a BPJ basis, after March 31,1989, a
discharger must achieve immediate
compliance with the BPT/BCT/BAT
effluent limitations upon issuance of the
discharger's NPDES permit. With
imposition of the nutrient management
plan requirement, there may be a large
number of CAFOs that are all trying to
develop plans at the same time. Yet,
there is a limited pool of certified
preparers and other technical experts
that are available nationwide to develop
nutrient management plans and CNMPs.
It is,reasonable to recognize that Large
CAFOs (and Small and Medium
CAFOs), along with AFOs, could be
competing for the services of the
certified preparers and other technical
experts. EPA estimates there are
approximately 15,500 CAFOs, including
11,000 Large CAFOs, and 222,000
AFOs. AFOs are not required tp prepare
CNMPs, but their access to sources of
public funds, such as EQJP, may be
contingent on their adherence to NRCS
technical standards, including
preparation of a CNMP. Thus,
additional time is needed for
development and implementation of the
plan.
  Another aspect that prevents CAFOs
from immediately complying with the
land application BMPs is the need for
States to ensure that they have
established appropriate technical
standards that CAFOs will use to
determine the appropriate application
rates for their fields. These standards
must be a part of the State NPDES
permitting program revisions discussed
in Section V.C of this preamble. In
addition, CAFOs will need some time to
determine whether they have sufficient
cropland for applying all of the
nutrients contained in the manure,
litter, and other process wastewaters
that they generate. If they determine that
they have excess nutrients, the CAFOs
will need to identify alternatives for
reducing the nutrient content, or seek
markets for the excess nutrients sUch as
off-site cropland, centralized processing
facilities  (e.g., pelletizing plants,
centralized  anaerobic digester-based
power generation facilities), or other
solutions. These activities cannot
logically  commence until the CAFO has
developed the plan and knows what its
allowable manure application rate is.
  EPA considered whether CAFOs
should be required to implement certain
elements of the land application BMPs
in advance of preparing a nutrient
management plan, but rejected doing so
because the elements of the land
application BMPs are inseparably linked
together.  The nutrient management plan
is the tool CAFOs must use to assess soil
and other field conditions at their
operation, in conjunction with manure
characterization data and crop rotations
and yield projections, to determine the
site-specific nitrogen or phosphorus-
based rate at which manure, litter, and
other process wastewaters are to be
applied. The proper application rate can
not be reasonably determined without
first preparing the nutrient management
plan. CAFOs will also use their nutrient
management plan to inform their
decision making on whether to comply
with the provisions at 412.4(c)(5) by
establishing the 100-foot setback on
their fields or to instead select one of
the compliance alternatives authorized
by those provisions. EPA has also

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 7214     Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and  Regulations
 determined that requiring manure and
 soil sampling and the record-keeping
 requirements included in 412.37(c) in
 advance of preparing and implementing
 the nutrient management plan would
 impose an unnecessary burden on
 CAFOs because, in the absence of a
 nutrient management plan that
 determines the appropriate application
 rates, these elements will not directly
 establish that manure will be applied in
 a manner that ensures appropriate
 utilization of nutrients. (Some of these
 actions, such as manure and soil
 sampling, may well be undertaken by
 the CAFOs as they develop their
 nutrient management plans, but EPA
 determined it was unnecessary for the
 regulation to impose these requirements
 in advance of nutrient management plan
 development and implementation.)
  The land application BMPs, including
 the requirement to develop and
 implement a nutrient management plan,
 will immediately  apply to all Large
 CAFOs who commence construction
 after the effective  date of this rule (i.e.,
 new sources). Section 306(b)(l)(B)
 specifies that new source performance
 standards shall become effective upon
 promulgation. New sources engage in
 extensive site selection, facility design,
 and construction activities prior to
 commencing operations. Aspects
 addressed during  this phase include
 location considerations (e.g., climate
 and topographical factors), facility
 design variables to optimize the
 production process, and waste
 management considerations including
 the identification  of optimal waste
 handling practices (e.g., waste collection,
 methods, the use of topographical
 elevation changes to facilitate waste
 handling) and disposal options (e.g., on-
 site application on cropland, shipment
 to off-site markets). These activities
 undertaken by new sources prior to
 commencing construction are highly
 technical in nature, and CAFOs will
 typically engage the services of a
 number of consultants. While CAFOs
 are expected to engage the services of
 technical consultants to develop the
 nutrient management plans required by
 this rule, the analyses embodied within
 the nutrient management plan will not
 significantly add to the scope of
 analyses new sources will engage in
 prior to commencing operations.
  EPA has considerable discretion
 under CWA section 304(b)(2) to
 determine whether and when a
particular technology or process is BPT,
BCT, or BAT. EPA also has broad
authority to interpret CWA section 301.
In E.I. du Pont de Nemours &• Co. v.
 Train, 430 U.S. 112 (1977), the Supreme
Court accorded great deference to EPA
 in promulgating effluent limitations
 guidelines as regulations under section
 301, notinjg that "[CWA Section] 101(d)
 requires us to resolve any ambiguity on
 this score in favor of the
 Administrator." Id. at 128. The Supreme
 Court also found that section 501(a)
 supports EPA's broad use of its
 regulatory authority to implement
 section 301. Id. at 132. EPA believes that
 its decision to promulgate the land
 application BMPs, including the
 nutrient management plans, with a
 future date for implementation is
 authorized by sections 301 and 304.
 Section 301(b)(2) in particular directs
 EPA to promulgate ELGs that, within
 the constraints of economic
 achievability, "will result in reasonable
 further progress toward the national
 goal of eliminating the discharge of all
 pollutants." Section 301(b)(2)(A).
  EPA is aware that CWA sections
 301(b)(2)(C) & (D) require ELGs to be
 achieved "in  no case later than three
 years after'the date such limits are
 promulgated under section 304(b), and
 in no case later  than March 31,1989."
 This language does not speak to the
 precise question EPA confronts here:
 whether EPA can promulgate ELGs that
 are phased in over time. In this case, for
 the reasons discussed above, while EPA
 believes that the requirement to develop
 and implement  a nutrient management
 plan will be an "available" technology
 in the near future, it is not now
 available fpr the large number of CAFOs
 subject to today's rule. For this reason,
 EPA is, in essence, today promulgating
 what will be the available technology
 for the future, similar to what the
 Agency did for the pulp & paper effluent
 guideline. See 63 FR 18604 (Apr. 15,
 1998). EPA is specifying the future date
 of December 31, 2006 because that is the
 date by which it predicts that sufficient
 capacity and capability to develop and
 implement a nutrient management plan
 and associated BMPs will be available to
 the great number of regulated sources.
 The availability of technical experts,
 including certified preparers, is a
 critically important component of the
 planning requirement, and in a sense is
 itself the technology basis for that BPT/
 BCT/BAT limitation. The Clean Water
Act requires compliance with a
 promulgated ELG—e.g., to develop a
nutrient management plan—only once
the  technology ripens as the basis for
that ELG, in this case as an available
technology. While EPA is promulgating
the  nutrient management plan
requirement as BPT/BCT/BAT in this
rulemaking, EPA's record indicates that
it may not truly  be available for the
 subcategory as a whole until December
 31, 2006.
   c. What are the production area
 requirements for all existing and new
 Large beef, dairy, and heifer CAFOs
 (Part 412, Subpart C)? In today's final
 rule, consistent with the 1974 ELG
 regulation, EPA is continuing to
 establish BMPs for the CAFO
 production area, which includes the
 animal confinement areas and the
 manure storage and containment areas.
 These BPT, BCT, BAT, and NSPS
 requirements are being established for
 the reasons discussed in this section,
 and consistent with the factors for
 consideration under the Clean Water
 Act, as discussed in Sections II,Ai2 and
 rV.C.2.f of this preamble.
   EPA is largely retaining the current
 effluent guidelines that apply to beef
 and dairy operations, and adding
 language extending these requirements
 to heifer-raising operations. These
 regulations, which are codified at 40
 CFR Part 412, Subpart C, prohibit the
 discharge of manure, litter, and other
 process wastewaters, except for
 allowing discharge when rainfall causes
 an overflow from a facility designed,
 maintained, and operated to contain all
 manure, litter, and process wastewaters,
 including storm water, plus runoff from
 the 25-year, 24-hour rainfall event. In
 addition, today's rule requires Large
 CAFOs to comply with the following
 BMPs:
   •  Perform weekly inspections of all
 storm water diversion devices, runoff
 diversion structures, animal waste
 storage structures, and devices
 channeling contaminated storm water to
 the wastewater and manure storage and
 containment structure;
   •  Perform daily inspections of water
 lines, including drinking water or
 cooling water lines;
  •  Install  depth markers in all surface
 and liquid impoundments (e.g., lagoons,
 ponds, tanks) to indicate the design
 volume and to clearly indicate the
 minimum capacity necessary to contain
 the 25-year, 24-hour rainfall event,
 including additional freeboard
 requirements;
  • Correct any deficiencies found as a
 result of daily and weekly inspections
 as soon as possible;
  • Do not dispose of mortalities in
 liquid manure or process wastewater
 treatment systems, and mortalities must
be handled in such a way as to prevent
 discharge of pollutants to surface water,
unless alternative technologies
 implemented under alternative
performance standards are designed to
handle mortalities;  and
  • Maintain on-site a complete copy of
the records specified in 40 CFR

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           Federal Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules  and Regulations     7215
412.37(b) and (c). These records must be
available to the permitting authority and
the Regional Administrator, or his or her
designee, for review upon request.
Records must be maintained for 5 years
from the date they are created.
  What did EPA propose? EPA
proposed to establish effluent guidelines
that include the requirements
promulgated in today's rule, and that
would also have required all Large beef
and dairy CAFOs (including heifers)  to
prevent discharges to the ground water
beneath the production area (animal
confinement areas, manure stockpiles,
and impoundments) where there is a
direct hydrologic connection to surface
waters.
 * What were the key comments? EPA
received numerous comments on the
proposed inclusion of ground water
monitoring and protection requirements
for beef and  dairy CAFOs. Many
commenters opposed the proposed
ground water requirements, stating that
EPA lacks the authority to regulate
ground water contamination in this rule
and that the cost to comply with the
proposed requirements would threaten
the viability of these operations. The
commenters also felt that EPA would
need to define the term "direct
hydrologic connection to surface water"
if ground water requirements were to be
implemented. EPA also received
comments supporting the inclusion of
ground water requirements in this rule,
arguing that individual State programs
are not always protective of these types
of discharges.
  EPA received a number of comments
suggesting the rule should allow for less
frequent inspections of the production
area; should establish effluent
limitations that would allow CAFOs  to
discharge treated manure, litter, and
process wastewaters (as opposed to the
requirements in the 1974 ELGs based on
the containment of these wastes); and
should allow CAFOs to dispose of
mortalities in surface impoundments
designed for that purpose. Other
commenters stated that EPA should
retain the existing zero discharge
requirement established by the 1974
ELGs and should not allow CAFOs to
discharge the wastes they currently
must contain, even if the wastes are
treated before being discharged.
  Rationale. The production area
requirements established today for Large
beef, dairy, and heifer CAFOs will
provide effective control of discharges
of manure and other process
wastewaters to surface water. These
requirements are widely demonstrated
as achievable and are in use at most
beef, dairy, and heifer CAFOs and the
containment requirements included  in
this rule have been applicable to Large
CAFOs since they were promulgated in
the 1974 ELGs. Furthermore, USDA and
ASAE cite the 25-year, 24-hour rainfall
event as part of the standard to which
storage structures should be
constructed.
  CAFOs must properly design, operate,
and maintain storage structures to
contain all manure, litter, and process
wastewater including the runoff from a
25-year, 24-hour rainfall event. The
determination of the necessary storage
volume should reflect the maximum
length of time anticipated between
emptying events. The design storage
volume must reflect manure,
wastewater, and other wastes
accumulated during the storage period;
normal precipitation less evaporation on
the surface area during the entire storage
period; normal runoff from the facility's
drainage area during the storage period;
25-year, 24-hour precipitation on the
surface (at the required design storage
volume level) of the facility; 25-year,
24-hour runoff from the facility's
drainage area; residual solids after
liquids have been removed; necessary
freeboard (USDA's Natural Resources
Conservation Service (NRCS)
recommends a minimum of 1 foot of
freeboard); and, in the case of treatment
lagoons, a minimum treatment volume
necessary to allow anaerobic treatment
to occur. Additional storage may also be
required to meet management goals or
other regulatory requirements. For
example, if the permitting authority
needs further controls to assure
compliance with site-specific water
quality standards. EPA encourages
CAFOs to consider relevant ASAE and
NRCS standards as one method to
ensure appropriate design and
construction.
   CAFOs should actively operate and
maintain the manure storage structure,
including solids removal or dewatering
when appropriate, to retain the capacity
for the 25-year, 24-hour rainfall event.
Recent studies suggest proper operation
and maintenance will prevent most, if
not all, overflows and discharges from
manure storage areas. One recent study
from Iowa State University suggested 76
percent of earthen manure structures
lacked appropriate accompanying
management and maintenance
activities. Another study in North
Carolina stated more than 90  percent of
violations were attributed to operation
and management deficiencies. Other
studies also list typical shortcomings as
including: careless transfer of manure  to
application equipment; improper
manure agitation practices; inadequate
controls to prevent burrowing animals
and plants from eroding the storage
berms and sidewalls; lack of routine
inspection of land application and
dewatering equipment during lagoon
drawdown; and infrequent visual
confirmation of adequate freeboard.
Therefore, this rule establishes certain
record keeping requirements that
document the design basis for the.
structures, inspection and other  .
maintenance activities related to the
operation of the structures, and any
overflows that occur. These records will
help the CAFO operator to demonstrate
that any overflows that do occur are
consistent with the proper operation
and maintenance of storage structures
designed to contain all process
wastewater, including the runoff from a
25-year, 24-hour rainfall event.
  Although most CAFOs already have
containment structures properly sized to
contain their process wastes and the
contributions from rainfall up to a 25-
year, 24-hour rainfall event, many of
these operations are not properly
maintaining their systems to retain the
capacity for such a rainfall event.:
Therefore, today's rule specifies that
surface and liquid impoundments (e.g.,
lagoons, ponds, and tanks) are required
to have depth markers installed. The
depth marker indicates the maximum
volume that should be maintained
under normal operating conditions
allowing for the volume necessary to
contain the 25-year, 24-hour rainfall
event. Without such a depth marker, a
CAFO operator might allow lagoons and
other impoundments to fill to a level
such that the capacity to contain the
direct precipitation and runoff from a
25-year, 24-hour rainfall event is not
maintained, leading to overflows that
are inconsistent with the proper
operation and maintenance of the
system. In addition, closed or covered
liquid impoundments are required to
have depth markers installed to
properly maintain these storage systems,
such that dry weather discharges do not
occur. Depth markers are necessary
tools that allow operators to actively
manage (e.g., dewater, remove solids)
the liquid levels in their impoundments
and ensure that adequate capacity is
retained for the 25-year, 24-hour rainfall
event. Remote sensors can also be used
to monitor liquid levels in lagoons and
impoundments. This sensor technology
can be used to monitor changes hi
liquid levels, either rising or dropping
levels. These sensors can also trigger an
alarm when the level is changing
rapidly or when the liquid level has
reached a critical level. The alarm can
transmit to a wireless receiver to alert
the CAFO owner or operator and can
also alert the permitting authority. The

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 7216     Federal Register /Vol. 68, No.  29 / Wednesday,  February 12,  2003/Rules  and Regulations
advantage of this type of system is the
real-time warning it can provide the
CAFO owner or operator that a lagoon
or impoundment is in danger of
overflowing. It can provide the CAFO
operator an opportunity to better
manage operations and prevent
catastrophic failures. These sensors are
more expensive than depth markers;
however, the added assurance they
provide in preventing catastrophic
failures might make them attractive to
some operations.
  Today's rule prohibits the disposal of
dead animals in any liquid
impoundments or lagoons and requires
operations to handle dead animals in
ways that prevent contributing
pollutants to waters of the United
States, except as provided for by
alternative performance standards using
technologies designed to handle
mortalities. Improper disposal of
mortalities can lead to surface or ground
water contamination, or both, as well as
noxious odors and the potential for
disease transmission by scavengers and
vermin. Historically, burial was the
most common method of carcass
disposal, but it is now prohibited in
many States. By prohibiting the disposal
of dead animals in liquid
impoundments, this rule will eliminate
the discharge of pollutants from
carcasses in overflows and in the runoff
from land application areas.
  Weekly inspections ensure that any
storm water diversions at the
production area, such as roof gutters or
any devices that channel storm water to
the wastewater and manure storage and
containment structure, are free from
debris. Daily inspections of the
automated systems providing water to
the animals ensure they are not leaking
or spilling, which by increasing the rate
at which process wastewater is
generated can lead to discharge of
pollutants to surface water. The manure
storage or treatment facility must be
inspected weekly to ensure structural
integrity. For surface and liquid
impoundments, the berms must be
inspected for leaking, seepage, wind or
water erosion, excessive vegetation,
unusually low or high liquid levels,
reduced freeboard, depth of the manure
and process wastewater in the
impoundment as indicated by the depth
marker, and other signs of structural
weakness. EPA believes these
inspections are necessary to ensure
proper maintenance of the production
area and prevent discharges of manure,
litter, and other process wastewater to
surface waters.
  Records of these inspections must be
maintained on-site, as well as records
documenting any problems noted and
corrective;actions taken, the design
basis for the structures, and the
estimated volume of any overflows that
occur. The depth of all liquid manure
storage impoundments must be noted
during each week's inspection.
Production area inspection data allow
operators to actively manage and
maintain their surface and liquid
impoundments to ensure the structural
integrity of the system and avoid
catastrophic failure of such systems.
These records also assist the CAFO
operator to minimize discharges to the
extent possible and demonstrate that
any overflows that do occur are
consistent with the proper operation
and maintenance of storage structures to
contain all process wastewater
including the runoff from a 25-year,
24-hour rainfall event.
  As with! the land application
requirements, effluent limitations in the
form of BKlPs are particularly suited to
the regulation of CAFOs. For many
CAFOs, controlling discharges to
surface waters is largely associated with
controlling runoff and controlling
overflows from manure storage
structures. CAFO runoff can be highly
intermittent and is usually characterized
by very high flows occurring over
relatively short time intervals. Whether
the runoff ,or overflow will lead to a
discharge,| as well as the volume of any
discharge that does occur and the nature
of the pollutants present in the
discharge,! can vary substantially
depending on the operating practices
and physical characteristics of the
operation (e.g., paved vs. unpaved
surfaces, manure handling practices,
climate, amount of area exposed to the
precipitation]. For these reasons, EPA
has determined that relying exclusively
on numeric ELGs to control these
discharges is infeasible.
  EPA believes the production area
BMPs included in this rule are
necessary to ensure proper maintenance
of the production area and prevent
discharges, except whenever
precipitation causes an overflow of
process wastewater from a facility
designed, Constructed, and operated to
contain all manure, litter, and process
wastewateirs plus the runoff from a
25-year, 24-hour rainfall event. There
are numerous reports of operations
discharging pollutants from the
production area during dry weather;
discharges from CAFOs that failed to
maintain the required storage capacity
to contain the 25-year, 24-hour rainfall;
and instances of leakage and
catastrophic failure of lagoons and other
manure storage structures. Information
in the record for this rule indicates that
many of the discharges could have been
avoided if CAFOs had practiced the
BMPs in this rule frequently enough to
detect and correct discrepancies before
they led to discharges.
  The proposed rule would have
imposed explicit national requirements
for certain CAFOs to address possible
discharges to surface water via ground
waters that have a direct hydrologic
connection to surface waters. These
operations would have been required to
sample groundwaters to demonstrate
that there is no discharge through a
direct hydrologic  connection to surface
waters, unless they determined tcj the
satisfaction of the permitting authority
the absence of a direct hydrologic
connection. Where a direct hydrologic
connection to surface waters exists,
controls on discharges to  groundwater
would have been required.
  In today's effluent limitation
guidelines, EPA is rejecting establishing
requirements related to discharges to
surface water that occur via ground
water with a direct hydrologic
connection.
  Pollutant discharges from CAFOs to
surface water via a groundwater
pathway are highly dependent on site-
specific variables, such as topography,
climate, distance to surface water, and
geologic factors such as depth of
groundwater, soil porosity and
permeability, and subsurface structure.
The factors affecting whether such
discharges are occurring at CAFOs are
so variable from site to site that a
national technology-based standard is
inappropriate. Further,  given the site-
specific nature of these situations:,
quantifying the pollutant  reduction
associated with nationally-established
requirements would be difficult.
Imposing requirements through a-
national ELG could divert resources
from other technologies and practices
that are more effective at controlling
CAFO discharges to surface waters.
Therefore, EPA believes that
requirements limiting the discharge of
pollutants to surface water via
groundwater that has a direct hydrologic
connection to surface water are beyond
the scope of today's ELGs.
  Furthermore, EPA recognizes there
are scientific uncertainties and site-
specific considerations with respect to
regulating discharges to surface water
via groundwater with a direct
hydrologic connection to  surface  water.
EPA also recognizes there are
conflicting legal precedents on this
issue. Nothing in this rule shall be
construed to expand, diminish, or
otherwise  affect the jurisdiction of the
Clean Water Act over discharges to
surface water via groundwater that has

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           Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and  Regulations     7217
a direct hydrologic connection to
surface water.
  At the time of proposal, EPA
considered, but rejected, requiring
CAFOs to sample surface waters
adjacent to feedlots and/or land under
control of the feedlot to which manure
is applied. This option would have
required CAFOs to sample surface
waters both upstream and downstream
from the feedlot and land application
areas following significant rainfall. In
this final rule, EPA is continuing to
reject imposing surface water
monitoring requirements on CAFOs
through the effluent guidelines because
of concerns regarding the difficulty of
designing and implementing through a
national rule an effectiye surface water
monitoring program that would be
capable of detecting, isolating, and
quantifying the pollutant contributions
reaching surface waters from individual
CAFOs; and because the addition of in-
stream monitoring does not by itself
achieve any better controls on the
discharges from CAFOs than the
controls imposed by this rule. In-stream
monitoring could be an indicator of
discharges occurring from the CAFO;
however, unless conditions are
appropriate and a well-designed
sampling protocol is established, it is
equally possible that the in-stream
monitoring considered at proposal
would measure discharges occurring
from adjacent non-CAFO agricultural
sources. Those non-CAFO sources
would likely be contributing many of
the same pollutants considered under
the sampling option. EPA considered
alternative parameters that would
isolate constituents from CAFO manure
and wastewater from other possible
sources contributing pollutants to a
stream. Pathogens were considered as
potential indicator parameters that
could be used if adjacent operations do
not also have livestock or are not using
manure or biosolids as fertilizer sources.
As discussed in the preamble for the
proposed rule, however, there are
concerns about the ability of CAFOs to
collect and analyze samples for these
pollutants (unless the sampling program
is appropriately designed and tailored to
the CAFO) because of the technical
difficulty in  obtaining representative
samples and because of holding time
constraints on collected samples
associated with the analytical methods
for these parameters. Accordingly, EPA
believes that the imposition of in-stream
monitoring requirements is more
appropriately addressed through NPDES
permit conditions established by the
permitting authority. Although EPA has
rejected the inclusion of in-stream
monitoring requirements in this rule,
the permitting authority retains the
authority to include them in NPDES
permits as either technology-based
requirements based on BPJ, or water
quality-based requirements, where the
permitting authority determines they are
necessary.
  Another option considered, and
rejected, at proposal would have
required large dairy (and swine)
operations to install anaerobic digester
systems to treat their manure. Requiring
anaerobic digester systems was not
considered for beef and heifer
operations because the wastes from
these facilities would not support the
operation of digester systems. (Refer to
the Technical Development Document
for more information on the operation of
digester systems.) As discussed at
proposal, anaerobic digesters offer
certain benefits to CAFOs (e.g., energy
recovery, control of methane  emissions),
but they would not necessarily lead to
significant reductions for many of the
pollutants discharged to surface waters
from CAFOs. Mandating the use of
anaerobic digesters could divert
resources from or complicate the  •
installation of other technologies that
can achieve even better performance.
Further, use of an anaerobic digester
does not eliminate the need for liquid
impoundments to store dairy parlor
water and barn flush water and to
capture storm water runoff from the
open areas at the dairy. Digesters do not
necessarily reduce the nutrients in
animal wastes. Most of the phosphorus
removed from the effluent is
concentrated in the digested solids,
which are still subject to land
application requirements. Similarly,
metals present in the animal waste are
not reduced and remain in the digester
effluent and solids.
  Although the ELG requirements in
this rule are not specifically designed to
reduce the pathogens in animal wastes,
today's rule may achieve some
reductions of pathogens in CAFO
discharges by applying manure at rates
that ensure appropriate agricultural
utilization of nutrient and establishing
setbacks or buffers where manure, litter,
and other process wastewater are not
applied. Pathogen die-off can also occur
during the period manure is stored prior
to land application, and further die-off
of pathogens is expected to occur when
the animal waste is exposed to sunlight
following application to land. Because
of the presence of pathogens in animal
wastes and the potential risk they pose
to human health and the environment,
EPA continues to be concerned about
the potential for transmission of
pathogenic disease from CAFOs. This
concern is substantiated by information
in the rulemaking record regarding
instances of foodborne and waterborne
disease outbreaks. However, based on
the current state of the science, a •
quantified link has not been established
between pathogenic diseases outbreaks
and CAFO discharges and runoflvEPA
has a number of research efforts
underway to better understand and
reduce the environmental impact
resulting from the discharge and runoff
of manure from these facilities. This
research will help inform future
decisions to address pathogens in CAFO
discharges.
  d.  What are the production area
requirements for Large swine, poultry,
and veal CAFOs (Part 412, Subpdrt D)?
(1) Existing Large swine, poultry and
veal  CAFOs. Today's final rule
establishes ELGs for existing swine,
poultry, and veal operations that are the
same as those described above in
Section IV.C.2.C. for beef and dairy
operations. Consistent with the 1974
ELG regulation, EPA is continuing to
establish BMPs for the CAFO
production area, which includes the
animal confinement areas and the
manure storage and containment areas.
These BPT, BCT, and BAT requirements
are being established for the reasons
discussed in this section, and consistent
with the factors for consideration'under
the Clean Water Act, as discussed in
Sections II.A.2 and IV.C.2.f of this
preamble.
  EPA is retaining the current effluent
guidelines that apply to swine, poultry,
and veal operations, and adding
language extending these requirements
to immature swine, and to chicken
operations with dry litter management
practices. These regulations, which are
codified at 40 CFR Part 412, Subpart D,
prohibit the discharge of manure,: litter,
and other process wastewater, except for
allowing discharge when rainfall Causes
an overflow from a facility designed,
maintained, and operated to contain all
manure, litter, and process wastewaters,
including storm water, plus runoff from
the 25-year, 24-hour rainfall event. In
addition, today's rule requires Large
CAFOs to comply with certain BMPs
described above in Section IV.C.2.C.
  What did EPA propose? EPA
proposed to establish production ,area
effluent guidelines for existing swine,
poultry, and veal operations that Would
prohibit all discharges from CAFO
production areas. Under the proposed
rule, existing operations subject to the
requirements of Part 412, Subpart D,
would not have been allowed to
discharge any manure, litter, or other
process wastewaters, including the
overflow of manure and other prdcess

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 7218      Federal Register/Vol. 68, No.  29/Wednesday,  February 12, 2003/Rules and Regulations
 wastewaters from their containment
 systems.
   What were the key comments? EPA
 received comments both opposing and
 supporting the proposed requirements
 that would have eliminated the
 allowance for overflows for swine,
 poultry, and veal CAFOs. Many
 commenters opposed to eliminating the
 overflow allowance argued that the cost
 to comply with such requirements
 would threaten the viability of their
 operations. Some stakeholders also
 stated that the use of impermeable
 lagoon covers (as a means for achieving
 compliance with the proposed
 requirements) would pose a number of
 operational challenges: freezing, biogas
 collection, clean storm water
 management, wind shear, cover repair,
 and disposal of spent covers. For these
 reasons, these stakeholders concluded
 the proposed zero discharge standard
 was technologically infeasible.
  Rationale. The production area
 requirements established today for
 existing Large swine, poultry, and veal
 CAFOs will provide effective control of
 discharges of manure and other process
 wastewaters to surface water, consistent
 with the statutory factors the Clean
 Water Act requires EPA to consider in
 establishing effluent guidelines for
 existing sources (BPT, BCT, and BAT).
 These requirements are widely
 demonstrated  as technologically
 achievable for these operations, and the
 containment requirements included in
 this rule have been applicable to Large
 CAFOs  since they were promulgated in
 the 1974 ELGs. Further, USDA and
 ASAE cite the 25-year, 24-hour rainfall
 event as part of the standard to which
 storage structures should be
 constructed.
  CAFOs must properly design, operate,
 and maintain storage structures to
 contain all manure, litter, and process
 wastewater including the runoff from a
 25-year, 24-hour rainfall event. The
 determination of the necessary storage
 volume should reflect the maximum
 length of time  anticipated between
 emptying events. The design storage
 volume must reflect manure,
 wastewater, and other wastes
 accumulated .during the storage period;
 normal precipitation less evaporation on
 the surface area during the entire storage
 period; normal runoff from the facility's
 drainage area during the storage period;
 25-year, 24-hour precipitation on the
 surface (at the  required design storage
volume level) of the facility; 25-year,
 24-hour runoff from the facility's
drainage area; residual solids after
liquids have been removed; necessary
freeboard (NRCS recommends a
minimum of 1  foot of freeboard); and, in
 the case of treatment lagoons, a
 minimum treatment volume necessary
 to allow anaerobic treatment to occur.
 Additional storage may also be required
 to meet.management goals or other
 regulatory requirements. EPA
 encourages CAFOs to use relevant
 ASAE and NRCS standards as one
 method to ensure appropriate design
 and construction. This is also consistent
 with EPA's approach to estimating the
 costs of compliance with today's rule.
  CAFOs should actively operate and
 maintahi the manure storage structure,
 including solids removal or dewatering
 when appropriate, to retain the capacity
 for the 25-year, 24-hour rainfall event.
 Recent studies suggest proper operation
 and maintenance will prevent most, if
 not all, overflows and discharges from
 manure; storage areas. One recent study
 from Iowa State University suggested 76
 percent;of earthen manure structures
 lacked appropriate accompanying
 management and maintenance
 activities. Another study in North
 Carolini stated more than 90 percent of
 violations were attributed to operation
 and management deficiencies. Other
 studies also list typical shortcomings as
 including: careless transfer of manure to
 application equipment; improper
 manure .agitation practices; inadequate
 controls to prevent burrowing animals
 and plants from eroding the storage
 berms and sidewalls; lack of routine
 inspection of land application and
 dewatering equipment during lagoon
 drawdo'jvn; and infrequent visual
 confirmation of adequate freeboard.
 Therefore this rule establishes certain
 recordkeeping requirements that
 document the design basis for the
 structures, inspection and other
 maintenance activities related to the
 operation of the structures, and any
 overflows that occur. These records will
 help the CAFO operator to demonstrate
 that any overflows that do occur are
 consistent with the proper operation
 and maintenance of storage structures
 designed to contain all manure, litter,
 and process wastewater, including the
 runoff fijoni a 25-year, 24-hour rainfall
 event.  '
  As with the land application
 requirements, effluent limitations in the
 form of BMPs are particularly suited to
 the regulation of CAFOs. For many
 CAFOs, jcontrolling discharges to
 surface waters is largely associated with
 controlling runoff and controlling
 overflows from manure storage
 structures. CAFO runoff can be highly
 intermittent and is usually characterized
by very high flows occurring over
relatively short time intervals. Whether
the  runoff or overflow will lead to a
 discharge, as well as the volume of any
 discharge that does occur and the nature
 of the pollutants present in the
 discharge, can vary substantially
 depending on the operating practices
 and physical characteristics of the
 operation (e.g., paved vs unpaved
 surfaces, manure handling practices,
 climate, amount of area exposed to the
 precipitation).
   EPA believes the production area
 BMPs included in this rule are
 necessary to ensure proper maintenance
 of the production area and prevent
 discharges except whenever
 precipitation causes an overflow of
 process wastewater from a facility
 designed, constructed, and operated to
 contain all manure, litter, and process
 wastewaters plus the runoff from a
 25-year, 24-hour rainfall event. There
 are numerous reports of operations
 discharging pollutants from the
 production area during dry weather,
 discharges from CAFOs that failed to
 maintain the required storage capacity
 to contain the 25-year, 24-hour rainfall,
 and instances of leakage and
 catastrophic failure of lagoons and other
 manure storage structures. Information
 in the record for this rule indicates that
 many of the discharges could have been
 avoided if CAFOs had practiced the
 BMPs in this rule frequently enough to
 detect and correct discrepancies before
 they led to discharges.
  For today's rule, EPA has determined
 that the cost to retrofit the many manure
 storage structures with covers, or to
 convert wet manure systems to dry
 manure systems, or to install other
 control techniques to achieve total
 containment of manure, litter, and other
 process wastewaters is not economically
 achievable for this subcategory.
 According to EPA's cost and economic
 impact analyses, requiring existing
 Large CAFOs subject to Part 412,
 Subpart D to comply with requirements
 for total containment (with no
 allowance for overflows) would result in
 facility closures at 11 percent of the
 CAFOs in Subpart D. (See the Economic
Analysis.} EPA disagrees, however, with
the comments that lagoon covers are
technologically infeasible. EPA does
 agree that retrofitting existing lagoon
 systems with covers can pose
substantial design challenges and some
existing lagoons might need to be
redesigned to accommodate a cover,
substantially increasing the retrofit cost
for existing sources. In spite of these
design challenges and the operational
challenges that covering lagoons can
pose, EPA believes the record
information  on the demonstration status
of impermeable lagoon covers
adequately addresses these feasibility
concerns. EPA has data from several

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vendors; one such vendor has
developed more than a dozen such
systems ranging in size from 3 acres to
almost 20 acres. Covered lagoon systems
have been success fully implemented in
areas with cold climates such as
northern Illinois, South Dakota, and
Wisconsin, and in high-rainfall areas
such as South Carolina, North Carolina,
and Georgia. These systems are
routinely exposed to and resist freezing,
high winds, and other extreme weather
events. EPA believes the information in
the record demonstrates the
technological feasibility of covering
lagoons, but is rejecting BPT/BCT/BAT
requirements based on such technology
because they are not economically
achievable.
  EPA is not including ground water
controls and monitoring requirements,
or surface water monitoring
requirements for Subpart D facilities for
the same reasons described in Section
IV.C.2.C for beef and dairy operations.
EPA also rejected basing the effluent
guidelines for swine operations on
anaerobic digesters for the same reasons
given above for dairies, and as discussed
in the preamble for the proposed rule.
  (2) New Large swine, poultry and veal
CAFOs. In today's rule, EPA is
establishing effluent guidelines for new
swine, poultry, and veal operations
based on zero discharge from CAFO
production areas, subject to the
provision that if a new source's waste
management and storage facilities are
designed, constructed, operated, and
maintained to contain all manure, litter,
and process wastewater including the
runoff and direct precipitation from a
100-year, 24-hour rainfall event, it will
satisfy the requirements of the NSPS. In
addition, today's rule requires Large
CAFOs to comply with certain BMPs
described above in Section IV.C.2.C for
the reasons given in Section IV.C. The
NSPS requirements are being
established for the reasons discussed in
this section, and consistent with the
factors for consideration under the
Clean Water Act, as discussed in
Sections II.A.2 and IV.C.2.f of this
preamble.
   What did EPA propose? EPA
proposed to establish production area
requirements for new sources that
would have required zero discharge,
and that would also have required all
new Large swine, poultry, and veal
CAFOs with a direct hydrologic
connection to surface waters to prevent
discharges to the ground water beneath
the production area (animal
confinement areas, manure stockpiles,
and impoundments).
   What were the key comments? Most
comments received focused on the
technological feasibility of total
containment and the appropriateness of
establishing ground water controls as
part of the effluent guidelines. EPA
received numerous comments in
opposition to the proposed ground
water requirements, stating that EPA
lacks the authority to regulate ground
water contamination in this rule and
that the cost to comply with the
proposed requirements would threaten
the viability of these operations. The
commenters also felt that EPA would
need to define the term "direct
hydrologic connection to surface water"
if ground water requirements were to be
implemented. EPA also received
comments supporting the inclusion of
ground water requirements in this rule,
arguing that individual State programs
are not always protective of these types
of discharges.
  Many commenters were also opposed
to the proposed requirement that
eliminates the allowance for overflows
for swine, poultry, and veal CAFOs.
Many commenters argued that the cost
to comply with these requirements
would threaten the viability of their
operations. Some stakeholders felt
impermeable lagoon covers in particular
posed a number of operational
challenges: Freezing, biogas collection,
clean storm water management, wind
shear, cover repair, and disposal of
spent covers. For these reasons, these
stakeholders concluded the proposed
zero discharge standard was  .
technologically infeasible.
  Rationale. EPA has determined that
the NSPS requirements included in this
rule for the production area at new
swine, poultry, and veal sources are
technologically feasible and will not
pose a barrier to entry, for the reasons
discussed below and in the Technical
Development Document.
  A number of the comments opposed
to establishing zero discharge
limitations (with no'allowance for the
discharge of overflows) were  related to
concerns that unforeseeable events
could eventually lead  to a discharge
from a facility and result, in the
commenters' view, in  a situation of
noncompliance that the  CAFO would be
unable to prevent. EPA disagrees with
these comments and believes the
NPDES permitting regulations already
address this concern. Consistent with
existing provisions 'included  in the
NPDES regulations at 40 CFR 122.41,
upset said bypass provisions are
included as standard conditions in
NPDES permits to address the potential
for unforeseen circumstances and
provide CAFOs with a reasonable
defense. In other words, even though
the NSPS for Subpart D operations
prohibits discharges from the
production area, a CAFO can claim an
upset/bypass defense for events that are
beyond reasonable control, including
extreme weather events as well as other
uncontrollable or unforeseen
conditions.
  An upset is an unintentional
noncompliance event occurring for
reasons beyond the reasonable control
of the permittee. The upset provision in
the NPDES permit operates as an
affirmative defense to prosecution for
violation of technology-based effluent
limitations, provided certain specified
criteria are met. See 40 CFR 122.41(n).
For example, flood damage or other
severe weather damage to containment
structures that cannot reasonably ;be
avoided or controlled by the permittee
could be a basis for an affirmative
defense for an upset. A bypass, on the
other hand, is an act of intentional
noncompliance during which waste
treatment facilities are circumvented
under certain specified circumstances,
including emergency situations. The
bypass provision authorizes bypassing
to prevent loss of life, personal injury,
or severe property damage where ithere
are no feasible alternatives to the bypass
and where the permitting authority is
properly notified. See 40 CFR
122.41(m).
  EPA has added a reference at 40 CFR
412.46(3) to the existing regulatory
provisions at 40 CFR 122.41(m) and (n)
for upset and bypass. The upset and
bypass provisions apply by existing
regulation to all NPDES permits. In light
of the more stringent requirements for
new sources subject to Subpart D,' EPA
added this cross-reference to ensure that
CAFO operators and permit writers
were aware that the upset and bypass
provisions are available. Upset and
bypass conditions are applicable to all
NPDES permits, for new and existing
sources.
  EPA has determined that total
containment for the production area for
new swine, poultry, and veal sources is
technologically feasible and should not
pose a barrier to entry for new sources
subject to Subpart D. It is common for
new poultry, veal, and swine operations
to construct facilities that keep the
animals in total confinement (covered
housing) that is not exposed to rainfall
or storm water runoff. In addition, many
new operations are based on manure
handling systems that greatly reduce or
eliminate water use, such as hog and
poultry high-rise houses, or that contain
manure in covered or indoor facilities,
such as underhouse pit storage systems
and litter storage sheds. Other new-
facilities may choose flush systems with

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  7220
Federal Register/Vol.  68,  No. 29/Wednesday, February 12, 2003/Rules and Regulations
  lagoons that are covered or sited and
  designed to achieve total containment.
    EPA recognizes that CAFOs may use
  different technologies to meet the zero
  discharge standard and that these
  technologies may have slightly different
  vulnerabilities to extreme weather
  events. Therefore, EPA is clarifying in
  today's rule that a CAFO may meet the
  zero discharge standard by designing,
  constructing, operating, and
  maintaining its waste management and
  storage facilities to contain all manure,
  litter, and process wastewater including
  the direct precipitation and runoff from
  a 100-year, 24-hour rainfall event.
   By definition, a 100-year, 24-hour
  storm is an event which occurs on
  average once every 100 years. EPA
  believes that the 100-year, 24-hour
  rainfall event criteria provides the
  protection of the resource that the
  Agency intended under the zero
  discharge limitation, while providing
  clarity for the regulated community. The
  principle of tying regulatory or program
  requirements to precipitation-related
  events that happen with a frequency of
  once every 100 years is also used in
  other federal programs. For example, the
 Federal Emergency Management Agency
 uses the 100-year flood as the standard
 for floodplain management and to
 determine the need for flood insurance
 in the National Flood Insurance
 Program. The USDA Natural Resources
 Conservation Service (NRCS) uses the
 100-year design criteria for flood
 protection structures. For instance, if
 the potential failure of a water control
 structure is likely to cause loss of life or
 extensive high value crop or property
 damage, NRCS uses the 100-year
 frequency storm as the basis for design.
   CAFOs may choose to meet the zero
 discharge requirement through any
 technology designed to achieve this
 threshold. If a facility is designed,
 constructed, operated, and maintained
 to meet the 100-year, 24-hour rainfall
 criterion, and it nonetheless has a
 discharge due to extreme weather, this
 would not be considered a violation of
 its permit conditions. This provision is
 separate from an upset defense
 discussed above.
  EPA has carefully evaluated the
 concerns raised in comments regarding
 the technical feasibility of total
 containment at swine, poultry, and veal
 operations. The concerns raised by
 commenters are primarily associated
 with operational factors and the effect of
 climate on the use of lagoon covers.
 Although the effluent guideline does not
require the use of any specific
technology, EPA concludes that the total
containment requirements of this rule
could be met at new sources through the
                            use of lagoon covers or other
                            appropriate technologies. New sources
                            will avoid the design challenges and
                            retrofit posts that existing sources would
                            face with the use of lagoon covers,
                            should they choose that technology to
                            complyj Based on the information in the
                            record, and as discussed above in this
                            section; EPA has received data to
                            demonstrate  that each of these factors
                            has been successfully handled at CAFOs
                            and othpr facilities. Furthermore, by
                            retaining all manure, litter, and other
                            process Wastewaters within the building
                            (for example/by using underhouse pits]
                            and not using an outdoor liquid
                            impoundment, or by using other
                            appropriate technologies, such as a
                            lagoon designed to contain the
                            precipitation and runoff from a
                            100-year, 24-hour rainfall event, new
                            sources Can avoid the operational
                            challenges posed by covers.
                             In many instances, CAFOs are
                            expected to construct swine and poultry
                            housing :that maintains the manure in
                            dry form and stores the dry manure
                           under cover until it is hauled off-site or
                            land applied. Dry manures are generally
                           more marketable and easier to transport,
                           important considerations for facilities
                           with insufficient land for agronomic use
                           of the manures. The majority of poultry
                           operations use total confinement
                           housing practices, generating a dry
                           manure that is collected within the
                           poultry houses. The manure/litter is
                           removed periodically from the poultry
                           houses and is either taken directly to the
                           land application area, transported to
                           off-site fields or centralized processing
                           facilities {e.g., pelletizing operations),
                           stored on-site within a roofed facility, or
                           stored in temporary field stacks which
                           can be covered and  configured to
                           prevent contact with precipitation.
                           There has also been a great deal of
                           interest in dry manure systems for
                           swine operations  in recent years, as
                           evidenced by the  current use of hoop
                           structure^ and other designs described
                           in the Technical Development
                           Document. Dry manure systems are
                           widely used at swine operations in
                           Europe and are also being used at some
                           operations in Canada. Some operations
                           in the U.S. already use dry manure
                           systems and EPA expects that the U.S.
                           swine industry will  choose to construct
                           dry manure systems at new operations
                          with greater frequency as  they gain
                          greater experience with these designs.
                            In other instances, new swine
                          operation's will likely choose
                          underhouse deep pit systems to comply.
                          Contrary to standard practice 30 years
                          ago, closed buildings with underhouse
                          deep pits jare currently the predominant
                          production technology used at swine
  operations. By 1995, approximately half
  of all large swine operations were using
  under floor pits with slotted floors. In
  2000, more than 2,200 large swin4
  operations nationwide utilized under
  floor pits, with several hundred
  additional operations using slurry
  storage. EPA has learned through ;site
  visits, as supported by meetings with
  the National Pork Producers Council (a
  trade association) that, because of
  further technological advancements,
  newly constructed systems rarely
  include lagoons, and that closed  •
  buildings with under floor pits are now
  the predominant production technology.
  Given the widespread use of this design,
  EPA anticipates that a number of new
  operations  constructed in the next five
  to ten years will choose to use deep pit
  systems.
    Some new swine operations may
  choose to use lagoon-based or other wet
  systems, depending on the factors
  specific to their situation. For example,
  some new operations may choose to rely
  on covered lagoon systems (with gas
  flaring or energy recovery). Another
  alternative technology that may be
 selected would be to install an
 anaerobic digester followed by a
 covered lagoon for storing the digester
 effluent. Benefits to operators using
 anaerobic digesters include the cost
 savings (or even revenue, in some cases)
 from electricity generation, a better-
 stabilized waste, significant odor
 reduction, and improved marketability
 of the digester solids. During site visits
 conducted during the rulemaking EPA
 has observed the use of aboveground
 fiberglass-lined steel tanks to store
 swine wastes. When configured to
 exclude direct precipitation or to •
 contain all direct precipitation and
 runoff from a 100-year, 24-hour rainfall
 event, these tanks are able to meet the
 zero discharge requirement. As noted
 below in section IV.C.2.e, in order to
 provide appropriate flexibility to!
 CAFOs, alternative technologies that
 achieve overall environmental
 performance across all media equal or
 superior to the reductions that wquld be
 achieved under the zero discharge
 standard may also be authorized by the
 Director.
  EPA is aware of some interest by the
 swine industry in achieving total.
 containment by using uncovered
 lagoons that would not be expected to
 discharge to surface waters based'upon
 siting and lagoon design. For example,
by providing additional freeboard in the
 design, a facility with sufficient
containment to retain all manure,: litter,
and process wastewater plus the direct
precipitation and runoff from a
100-year, 24-hour rainfall event would

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           Federal Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations
                                                                     7221
be able to demonstrate that it complies
with, the rule requirements, assuming
§ roper operation and management.
 ucn facilities would be considered to
achieve zero discharge. As discussed
above, an upset defense could also
apply when unforeseen and
uncontrollable conditions result in a
discharge.
  The production area BMPs
established today for Large swine,
poultry, and veal CAFOs are necessary
to ensure proper operation and
maintenance of the production area and
provide effective control of discharges
of manure, litter, and other process
wastewaters to surface water. There are
numerous reports of operations
discharging pollutants from the
production area during dry weather,
discharges from CAFOs that failed to
maintain the required storage capacity,
and instances of leakage and
catastrophic failure oflagoons and other
manure storage structures. CAFOs
should actively operate and maintain
 the manure storage structure, including
solids removal or dewatering when
 appropriate, to retain the capacity to
 accommodate continued generation of
 process wastewater. Information in the
 record for this rule indicates that many
 of the discharges could have been
 avoided if CAFOs had practiced the
 BMPs in this rule frequently enough to
 detect and correct discrepancies before
 they led to discharges.
   EPA is not including ground water
 controls and monitoring requirements,
 or surface water monitoring
 requirements for SubpartD facilities  for
 the same reasons described in Section
 IV.C.2.C for beef and dairy operations.
 EPA also rejected basing the effluent
 guidelines for swine operations on
 anaerobic digesters for the same reasons
 described above for dairies, and as
 discussed in the preamble for the
 proposed rule.
    e. Voluntary alternative performance
 standards to encourage innovative
 technologies. EPA's long-term
 environmental vision for CAFOs
 includes continuing research and
 progress toward environmental
 improvement. The Agency believes that
 certain individual CAFOs will
 voluntarily develop and install new
  technologies and management practices
  equal to or better than those required by
 baseline technology-based effluent
 guidelines (BPT, BCT, and BAT) and
  standards (NSPS) promulgated in
  today's rule. Furthermore, EPA
  recognizes that some CAFOs, as well as
  land grant universities, State agencies,
  equipment vendors, and agricultural
  organizations, are working to develop
  new technologies that achieve
reductions in nutrient and pathogen
losses to surface water, ammonia and
other air emissions, and ground water
contamination. The development of new
technologies offers the potential to
match or surpass the pollutant
reduction that would be achieved by
compliance with the baseline
production area effluent guidelines and
standards (discussed above in Section
IV.C.2.C for Large CAFOs subject to Part
412, Subpart C, and Section IV.C.2.d for
Large CAFOs subject to Part 412,
Subpart D). The term "baseline effluent
guidelines" as used here is defined
below in the following section of this
preamble.
  In addition to the production area
effluent guidelines promulgated by
today's rule (the "baseline effluent
guidelines"), EPA is establishing
provisions for the development of
alternative performance standards for
discharges from the production area of
Large CAFOs. The effluent guidelines
promulgated today also establish BMPs
that apply to the production area and
land application areas at Large CAFOs.
These BMP requirements are applicable
to all Large CAFOs (both existing and
new sources), regardless of whether
their NPDES permit limitations are
based on the baseline effluent
guidelines or the alternative
 performance standards.
   In establishing the ELG provisions for
 alternative performance standards, this
 rule creates a framework that enables
 new and existing Large CAFOs in
 Subpart C and existing Large CAFOs in
 Subpart D to develop and 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. For new Large CAFOs
 in Subpart D, the rule allows for
 alternative permit limitations based
 upon site-specific innovative
 technologies that achieve environmental
 performance across  all media which is
 equal or superior to the baseline
 standards. An added benefit of
 providing for alternative performance
 standards is the potential for new or
 alternative technologies and practices to
 help address the multimedia
 environmental issues confronting
 CAFOs. A key tenet of these programs
 is that CAFOs will now have the option
 to either accept NPDES permit
 limitations based on the baseline
 effluent guidelines or voluntarily
 request title permitting authority to
  establish an alternative BPT/BCT/BAT/
 NSPS performance  standard as the basis
  for their technology-based NPDES
  permit limits (e.g., inclusion of effluent
limitations in their NPDES permits that
are different from those based on the
baseline effluent guidelines).
  EPA received suggestions from a
number of stakeholders on the merits of
creating a framework for alternative
performance standards. Several
stakeholders believe that the effluent
guidelines established by the 1974 ELG
regulation, as well as the baseline
effluent guidelines promulgated in
today's rule, discourage the use of
innovative treatment and pollution
prevention technologies because they
are based on containment rather than
treating the wastes to particular targets
of effluent quality. A number of
commenters expressed support for
alternative wastewater treatment
technologies that are equivalent to or
better than baseline effluent guidelines,
and they specifically requested that EPA
establish provisions in the rule to: allow
CAFOs to discharge treated process
wastewater generated from the
production area of the CAFO.
   Commenters also suggested that EPA's
regulatory framework should provide
incentives encouraging CAFOs to; use
technologies that would protect all
environmental media, including air,
ground water, and surface water.
Commenters suggested that addhig
 flexibility in the rule to allow for the
 discharge of treated process wastewater
 could lead to better approaches for
 addressing multimedia environmental
 concerns. On a related note, a number
 of stakeholders commented that EPA
 should include controls for pathogens or
 antibiotics, as well as atmospheric
 emissions of ammonia, methane, and
 hydrogen sulfide.
   In view of these comments and
 recognizing the potential environmental
 gains presented by the ongoing research
 and development of new treatment
 technologies for CAFO wastes, today's
 rule establishes provisions providing for
 the development of alternative
 performance standards for discharges
 from Large CAFOs. As noted above,
 CAFOs retain the option to either accept
 NPDES permit limitations based on the
 baseline effluent guidelines or
 voluntarily request the permitting
 authority to establish an alternative
 performance standard as the basis for
 their technology-based NPDES permit
 limits. The specific requirements
 imposed by the alternative performance
 standard would be established by the
 NPDES permitting authority based on
 the technical analysis and other
 information submitted by the CAFO, as
 required under the alternative
 performance standards provisions
 included in Part 412. CAFOs would not
 be required to enter the alternative

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  7222      Federal Register/Vol.  68,  No. 29/Wednesday, February 12, 2003/Rules and Regulations
  performance standards program. A
  Large CAFO choosing not to participate
  in the alternative performance standards
  program would instead be subject to the
  baseline effluent guidelines discussed
  above in Section IV.C.2.C (for Subpart C)
  or Section IV.C.2.d (for Subpart l5). EPA
  previously used a similar approach in
  establishing the effluent guidelines
  regulations for the Pesticide
  Formulating, Packaging, and
  Repackaging (PFPR) industry. In that
  rule, PFPR facilities are subject to
  effluent guidelines requirements that
  prohibit all discharges, but they may
  voluntarily elect to instead adopt certain
  regulatory requirements (mandatory
  BMPs and treatment of discharged
  wastes) and be allowed to discharge a
  "pollution prevention allowable
  discharge." (See 40 CFR Part 455. See
  also 61 FR 57518; November 6,1996.) In
  another rulemaking, EPA established
  effluent guidelines for the pulp, paper,
  and paperboard (Pulp & Paper) industry
  that provide incentives for mills to
  voluntarily implement advanced
  process technologies. For the Pulp &
  Paper effluent guidelines, mills
  accepting more stringent NPDES permit
  limitations based on the performance of
•  the advanced technologies and other
  process improvements are granted
  incentives such as public recognition
  and substantially extended compliance
  periods. (See 40 CFR Part 430. Also see
  63 FR 18504, 18593-18611; April 15,
  1998).
    (1)  Baseline effluent guidelines. The
  effluent guidelines regulations
  promulgated in today's rule for all
  existing Large CAFOs, and for new
  source Large beef, dairy and heifer
  CAFOs, prohibit the discharge of
  process wastewaters, except when
  rainfall events cause an overflow from a
  facility designed, constructed, and
  operated to contain all manure, litter,
  and process wastewaters plus the runoff
  from a 25-year, 24-hour rainfall event.
  These limitations are based on the use
  of storage ponds and lagoons to contain
  the process wastes and runoff, although
  they do not preclude CAFOs from using
  alternative technologies. The NSPS
  requirements for new source Large
  swine, poultry, and veal CAFOs require
  zero discharge from the production area,
  subject to a provision that compliance
 with the standard can be met if the
 waste management and storage facilities
 are designed, constructed, operated, and
 maintained to contain all manure, litter,
 and process wastewater including the
 runoff and direct precipitation from a
 100-year, 24-hour rainfall event. The
 ELGs were established on the basis of
 factors specified in CWA sections 304(b)
 and 306, including the cost of achieving
 the effluent reductions and any non-
 water quality environmental impacts.
 These limitations are referred to in this
 preamble ap the "baseline effluent
 guidelines" for the purpose of clarifying
 which effluent guidelines requirements
 may be replaced by the alternative
 performance standards provisions
 included in today's rule.
   The efflupnt guidelines promulgated
 today also establish BMPs that apply to
 the production area and land
 application; areas at Large CAFOs. These
 BMP requirements are applicable to all
 Large CAFOs (both existing and new
 sources), regardless of whether their
 NPDES permit limitations are based on
 the baseline effluent guidelines or the
 alternative performance standards. As
 discussed in Sections IV.C.2.C and
 IV.C.2.d, the production area BMPs are
 necessary to ensure that manure storage
 structures and other production area
 components associated with controlling
 process wastewaters (e.g., storm water
 diversions) are properly designed,
 operated, and maintained to prevent
 overflows or catastrophic failure of the
 system.     j
   (2) Voluntary alternative performance
 standards for all Large beef/dairy/heifer
 CAFOs and'existing Large swine/
 poultry/veal CAFOs. The alternative
 performance standards promulgated
 today for new and existing sources in
 Subpart C and existing sources in
 Subpart D, apply to discharges of
 manure, littpr, and other process
 Wastewaters from the CAFO production
 area. Under ithe provisions included in
 the final rul(3, these Large CAFOs will be
 allowed to discharge process wastewater
 that has been treated by technologies
 that the CAFO demonstrates will result
 in equivalent or better pollutant
 removals than would otherwise be
 achieved by the baseline effluent
 guidelines. These regulatory provisions
 are targeted toward the CAFO's
 wastewater discharges, but EPA
 encourages bperations electing to
 participate in the alternative
 performance standards program to
 consider environmental releases
 holistically, Including opportunities for
 achieving improvement in multiple
 environmenial media.
  As discussed above, the baseline
 effluent guidelines, though nominally
 zero discharge, allow for untreated
 overflow discharges if the system is
 designed, constructed, and operated to
 contain manure, litter, and process
 wastewater plus the runoff from a
 25-year, 24Thour rainfall. (Large swine,
poultry, and'veal CAFOs that are new
 sources are Subject to a different
performance; standard.) 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
 includes calculating the pollutant
 reductions based on the site-specific
 modeled performance of a system
 designed to comply with the baseline
 effluent guidelines (e.g., a storage; lagoon
 designed, constructed, and operated to
 contain all manure, litter, and process
 wastewaters plus the runoff from ;a
 25-year, 24-hour rainfall event). For
 many pollutants (e.g., nitrogen,
 phosphorus,.BOD, metals), the mass of
 pollutants discharged will usually be
 the most appropriate measure for
 assessing treatment system performance
 and determining whether the alternative
 control technology will achieve equal or
 better pollutant reductions. For some
 pollutants such as pathogens, however,
 pollutant mass may not be the most
 appropriate measure of pollutant
 reductions and alternative measures
 will need to be used.
   One approach for making such a
 demonstration is to use a computer
 simulation model to evaluate site-
 specific or region-specific climate data,
 along with wastewater characterisation
 data, to determine the pollutant  i
 discharge that would be projected for a
 system designed, constructed, and
 operated to achieve compliance with the
 baseline effluent guidelines. The model
 would evaluate the daily inputs to the
 storage system, including all process
 wastes, direct precipitation, and runoff.
 It would also evaluate the daily outputs
 from the storage system, including
 losses  due to evaporation, sludge
 removal, and the removal of wastewater
 for use on cropland at the CAFO or
 transport off site. The model would be
 used to predict the overflow from; the
 storage system that would occur over a
 25-year period, and these overflow
 predictions would be used to determine
 the median annual predicted overflow
 over the 25 years evaluated by the
 model.
  Precipitation patterns for a given
 location are inherently variable from
 year-to-year. As a result, the volume of
 water entering the storage system; either
 through direct precipitation or as
 collected runoff, will vary substantially
 from one year to another. The potential
 for the storage system to overflow and
 the volume of the overflow is a function
 of site-specific variables, including the
 rate and total volume of wastes entering
 and leaving the storage system. To
 enable the development of alternative
performance standards that achieve
pollutant reductions comparable to
those that, would be achieved by the

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           Federal Register/Vol. 68, No. 29/Wednesday,  February 12, 2003/Rules and Regulations      7223
baseline effluent guidelines, CAFOs
must perform a technical analysis that
includes a prediction of the volume of
overflows from the storage system. If the
technical analysis were to be performed
using climate data from a period of
unusually high precipitation, then the
CAFO's analysis would tend to
overestimate the overflow volume and
result in alternative performance
standards that do not achieve pollutant
reductions equal to the baseline effluent
guidelines. Conversely, if the technical
analysis were to be performed using
climate data from a period of unusually
low precipitation  (e.g., drought periods),
then the CAFO's analysis would tend to
underestimate the overflow volume. By
requiring the CAFO to use precipitation
data for a 25-year period, the technical
analysis will minimize the bias
introduced by short-term variations in
climate patterns.
  The site-specific or other appropriate
pollutant characterization data for the
wastewater from the waste storage
system [i.e., the overflow) would be
coupled with the overflow volume
output from the model described above
to predict the quantity of pollutant
discharge that would occur from a
system designed to comply with the
baseline effluent guidelines. CAFOs
would be required to meet NPDES
permit conditions that result in
equivalent or improved pollutant
reductions, as compared to the
predicted quantity of pollutant
discharge from overflow of the baseline
system. If a CAFO elected to use this
approach, it would be meeting the same
limitations as a CAFO under the
baseline effluent guidelines, but
expressed in a different fashion (e.g.,
numeric limits on a continuous
discharge versus a limit of zero
discharge with an allowance for
discontinuous overflows). To illustrate
this type of analysis, EPA prepared an
example evaluation using model farm
characteristics. This example is
available in the Technical Development
Document and in section 19.6.2 of the
rulcmaking record,
   (3) Voluntary superior environmental
performance standards for new Large
sivine/poultry/veal CAFOs. The NSPS
requirements that apply to production
area discharges at new Large swine,
poultry, and veal CAFOs are more
stringent than the NSPS established for
other new sources and the BAT
requirements for existing sources. EPA
is endeavoring to ensure that this rule
does not inadvertently discourage
approaches that are superior from a
multimedia environmental perspective.
Therefore, for new sources subject to
Subpart D (Large  swine, poultry, and
veal CAFOs), EPA is establishing
alternative performance standards that
 Srovide additional compliance
 exibilities specifically designed to
encourage CAFOs to adopt innovative
technologies for managing and/or
treating manure, litter, and process
wastewater. Specifically, the NSPS
includes a provision that allows for the
CAFO to request the Director to
establish alternative NPDES permit
limitations based upon a demonstration
that site-specific innovative
technologies will achieve overall
environmental performance across all
media which is equal to or superior to
the reductions achieved by baseline
standards. The quantity of pollutants
discharged from the production area
must 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. In making the
demonstration that the innovative
technologies will achieve an equivalent
or greater reduction, the comparison of
quantity of pollutants is to be made on
a mass basis where appropriate.
  In general, EPA expects CAFOs will
conduct a whole-farm audit to evaluate
releases that occur at the point of
generation to minimize or eliminate
waste production and air emissions,
followed by an evaluation of the waste
handling and management systems, and
ending with an evaluation of land
application and off-site transfer
operations. The specific technologies
that CAFOs will select and adopt to
achieve the pollutant reductions are
expected to be most effective for the
particular operation. As part of the
demonstration the CAFO will need to
present information that describes how
the innovative technologies will
generate improvement across multiple
environmental media. The Director has
the discretion to request additional
supporting information to supplement
such a request where necessary. Such
information could include criteria and
data that demonstrate effective
performance of the technologies and
that could be used to establish the
alternative NPDES permit limitations.
   (4) Process and incentives for
participating in alternative performance
standards. CAFOs interested in
pursuing the alternative performance
standards should have a good
compliance history, e.g., no ongoing
violations of existing permit
performance standards or history of
significant noncompliance. These
facilities must conduct an analysis of
their operation (as described above in
Sections IV.C.2.e.(2) and IV.C.2.e.(3))
and prepare a proposed alternative
program plan including the results of
the analysis; the proposed method for
implementing new technologies and
practices, including an approach for
monitoring performance; and the results
demonstrating that these technologies
and practices perform equivalent to or
better than the baseline effluent
guidelines. This plan must be included
with the CAFO's NPDES permit
application or renewal, and it will be
incorporated into the permit upon
approval by the permitting authority.
  CAFOs are expected to derive
substantial benefits from participation
in the alternative standards approach,
through greater flexibility in operation,
increased good will of neighbors,
reduced odor emissions, and potentially
lower costs. EPA is considering future
opportunities for other possible
incentives to encourage participation in
this program.
  /. How did EPA consider the Clean
Water Act statutory factors in
establishing the ELGs? (1) BPT. In
establishing BPT effluent guidelines for
an industry category, EPA looks at a
number of factors in determining !the
appropriate effluent limits for
conventional, toxic, and non-
conventional pollutants. EPA first
considers the cost of achieving effluent
reductions in relation to the effluent
reduction benefits. The Agency also
considers the age  of the equipment and
facilities, the processes employed; and
any required process changes,
engineering aspects of the control
technologies, non-water quality
environmental impacts (including
energy requirements), and such other
factors as the Agency deems      :
appropriate. 33 U.S.C. 304(b)(l)(B).
Traditionally, EPA establishes BPT
effluent limitations based on the average
of the best performances of facilities
within the industry of various ages,
sizes, processes or other common;
characteristics. EPA's consideration of
these factors and how they affected this
rulemaking is presented in the
 Technical Development Document.
   One way that EPA takes these factors
into account is by breaking down
categories of industries into separate
classes  of similar characteristics. The
division of a point source category into
groups  called "subcategories" provides
a mechanism for addressing variations
among  products, raw materials,  ;
processes, and other parameters that can
result in distinct effluent characteristics.
This provides each subcategory with a
uniform set of ELGs that take into
 account technology achievability and

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Federal Register/Vol. 68, No. 29 / Wednesday, February  12,  2003/Rules and Regulations
 economic impacts unique to that
 subcategory. In this rule, EPA has
 addressed such considerations by
 establishing two new subcategories,
 codified at Subpart C (beef, dairy, and
 heifers) and Subpart D (swine, poultry,
 and veal) of 40 CFR 412. See Section
 IV.C.2.a of the preamble for a discussion
 of these subcategories.
   The requirements established in this
 rule for BPT effluent guidelines reflect
 consideration of the total cost of
 applying these technologies (including
 BMPs) in relation to the effluent
 reduction benefits that will be achieved.
 The ELGs promulgated today are
 expected to cost Large CAFOs $283
 million per year (pre-tax). The ELGs will
 reduce discharges of sediment by 2.1
 billion pounds, nutrients by 155 million
 pounds, and metals by one million
 pounds annually. This results in an
 overall ratio of $0.12 per pound of
 pollutant removed (using reductions of
 sediment, nutrients, and metals).
 Excluding sediment reductions, the rule
 achieves an overall ratio of $1.75 per
 pound of pollutant removed (nutrients
 and metals).
   The technologies upon which BPT is
 based are ones that are readily
 applicable to all CAFOs and will
 provide effective control of discharges
 of manure, litter, and other process
 wastewaters to surface water. These
 requirements are widely demonstrated
 as achievable and represent the level of
 control achieved by the majority of
 Large CAFOs. The containment
 requirements included in this rule have
 been applicable to Large CAFOs since
 they were promulgated in the 1974
 ELGs, and most existing lagoons and
 other containment structures are built to
 these standards. Furthermore, USDA
 and ASAE cite the 25-year, 24-hour
 rainfall event as part of the standard to
 which containment structures should be
 constructed.
   As described in Section IV.C.2.b of
 this preamble, the land application
 requirements included in this rule
 represent practices that will ensure that
 CAFOs apply manure, litter, and other
 process wastewaters at a rate and in a
 manner consistent with the appropriate
 agricultural utilization of nutrients.
 Limits on the rate at which manure can
 be applied and certain other constraints
 on application practices, such as
 setbacks and vegetated buffers, are
widely demonstrated as achievable and
have been imposed by a number of
 States and through NPDES permits.
  (2) BCT. In evaluating the possible
BCT standards in this rulemakirig, EPA
first considered whether there are any
candidate technologies (i.e., technology
options) that are technologically feasible
                            and achieve greater reductions in
                            conventional pollutants than are
                            achieved by the BPT requirements
                            promulgated today. (Conventional
                            pollutants'; are defined as TSS, BOD, pH,
                            fecal colifprm, and oil and grease.)
                            EPA's analyses of pollutant reductions
                            that can be achieved by the candidate
                            options (including the BPT, BAT, and
                            NSPS options) has focused largely on
                            the control of nutrients, sediments,
                            metals, and pathogens, but to the extent
                            possible have also assessed the
                            effectiveness of the control options at
                            reducing discharges of conventional
                            pollutants; Although animal wastes
                            contain BG)D because of the organic
                            material present in these wastes, the
                            data available for estimating reductions
                            of BOD from application of the
                            candidate .technologies are limited.
                            Therefore,;EPA based its estimates of
                            conventional pollutant reductions on
                            TSS, using estimated reductions in
                            sediment discharges as a surrogate for
                            TSS. FolloWing this approach, EPA
                            identified no BCT technology option
                           that achieves greater TSS removals than
                           the BPT requirements promulgated
                           today, and EPA does not believe the
                           candidate BCT options would
                           substantially reduce discharges of BOD.
                           EPA therefore concluded that there are
                           no candidate BCT technologies for
                           establishing limits on conventional
                           pollutants that are more stringent than
                           BPT, and is establishing BCT
                           requirements in this rule equal to BPT.
                           If EPA had identified technology
                           options appropriate for a national rule
                           that achieve greater reductions of
                           conventional pollutants than are
                           achieved by BPT, then EPA would have
                           performed the two-part BCT cost test.
                           (See 51 FRJ24974 for a description of the
                           methodology EPA employs when setting
                           BCT standards.)
                             (3) BAT.,m general, BAT represents
                           the best available economically
                           achievable performance of direct
                           discharging facilities in the industrial
                           subcategory or category. The Clean
                           Water Act requires EPA to consider a
                           number of different factors when
                           developing ELGs that represent the BAT
                           level of control for discharges of toxic
                           and nonconventional pollutants by a
                           particular iiidustry category. These
                           factors include the cost of achieving
                           effluent reductions, the age of
                           equipment'and facilities involved, the
                           processes epiployed, engineering
                           aspects of the control technology,
                           potential process changes, non-water
                           quality environmental impacts
                           (including energy requirements), and
                           other factors as the Administrator deems
                           appropriate. EPA's consideration of
 these factors and how they affected this
 rulemaking is presented in the
 Technical Development Document.
   An additional statutory factor
 considered in setting the BAT
 requirements is economic achievability.
 Generally, the achievability is   ;
 determined on the basis of the total cost
 to the industrial subcategory and the
 overall effect of the rule on the
 industry's financial health. The BAT
 requirements promulgated today are
 economically achievable and represent
 the best available technology for Large
 CAFOs. As was discussed above for
 BPT, EPA estimates the cost for Lpge
 CAFOs to comply with the ELGs at $283
 million per year (pre-tax, $2001). The
 ELGs will reduce discharges of sediment
 by 2.1 billion pounds, nutrients by 155
 million pounds, and metals by orie
 million pounds annually. (These costs
 and pollutant reductions are not
 additional costs beyond that of BPT.
 Because the BPT and BAT requirements
 promulgated today are identical, the
 costs and pollutant reductions for. each
 level of control are presented    :
 incremental to the baseline of current
 practices and current regulatory
 requirements.)                  :
   The technologies upon which BAT is
 based are ones that are readily
 applicable to all CAFOs and will
 provide effective control of discharges
 of manure, litter, and other process
 wastewaters to surface water. The
 containment requirements, in
 conjunction .with the production area
 BMPs  included in this rule, are widely
 demonstrated as achievable and
 represent the level of control     ,
 demonstrated to be achievable by
 well-performing Large CAFOs. The
 containment requirements included in
 this rule have been applicable to  Large
 CAFOs since they were promulgated in
 the 1974 ELGs, and most existing
 lagoons and other containment
 structures are built to these standards.
 Furthermore, USDA and ASAE cite the
 25-year, 24-hour rainfall event as part of
 the standard to which storage structures
 should be constructed.
  As described in Section IV.C.2.b of
 this preamble, the land application
 requirements included in this rule are
 consistent with appropriate agricultural
 utilization of nutrients and will ensure
 that CAFOs apply manure, litter,  and
 other process wastewaters at a rate and
 in a manner necessary to meet the
 requirements of the crops grown ind not
 exceed the ability of the soil and crop
 to absorb nutrients. Limits on the^ate  at
which  manure can be applied and
 certain other constraints on application
practices, such as setbacks and
vegetated buffers, are widely

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           Federal Register/Vol. 68, No. 29/Wednesday,  February 12, 2003/Rules and Regulations      7225
demonstrated as achievable and have
been imposed by a number of States and
through NPDES permits.
  To determine economic achievability,
EPA analyzed how many facilities
affected by this rule would experience
financial stress severe enough to make
them vulnerable to closure. As
explained in more detail in Section VJEI
of this preamble and in the Economic
Analysis, the number of facilities
experiencing stress might indicate
whether certain regulatory options
considered during the rulemaking are
economically achievable, subject to
other considerations.
  For the veal, dairy, turkey, and egg
laying sectors, the final regulations are
not expected to result in any CAFO-
level business closures. In the beef
cattle, heifer, swine and broiler sectors,
however, the final rule is expected to
cause some existing CAFOs to
experience financial stress. These
operations may be vulnerable to closure
as a result of complying with the final
rule. Across all sectors, an estimated
285 existing Large CAFOs maybe
vulnerable to facility closure. This
accounts for approximately 3 percent of
all Large CAFOs. By sector, EPA
estimates that 49 beef operations (3
percent of affected beef CAFOs), 204
hog operations (5 percent of affected hog
CAFOs), 10 broiler operations
(1 percent), and 22 heifer operations (9
percent) may close as a result of
comply ing with the final rule.
  (3) NSPS. NSPS reflect effluent
reductions that are achievable based on
the best available demonstrated control
technology. New facilities have the
opportunity to install the best and most
efficient production processes and
wastewater treatment technologies. As a
result, NSPS represents the greatest
degree of effluent reduction attainable
through the application of the best
available demonstrated control
technology for all pollutants (i.e.,
conventional, non-conventional, and
priority pollutants). In establishing
NSPS, EPA is directed to take into
consideration the cost of achieving the
effluent reduction and any non-water
quality environmental impacts and
energy requirements. In addition, EPA
evaluates whether the requirements
would impose a barrier to entry to new
operations.
  The technologies upon which the
production area NSPS for Large beef,
dairy, and heifer CAFOs are  ones that
are readily applicable to all CAFOs in
that subcategory and will provide
effective control of discharges of
manure, litter, and other process
wastewaters to surface water. The
containment requirements, in
conjunction with the production area
BMPs included in this rule, 'are widely
demonstrated as achievable and
represent the level of control
demonstrated to be achievable by well-
performing Large CAFOs covered by
Part 412, Subpart C. The containment
requirements included in this rule have
been applicable to Large CAFOs since
they were promulgated in the 1974
ELGs, and most existing lagoons and
other containment structures are built to
these standards. Furthermore, USDA
and ASAE cite the 25-year, 24-hour
rainfall event as part of the standard to
which containment structures  should be
constructed.
  EPA has determined that total
containment (with a compliance option
to design, operate, and maintain the
facility to contain the runoff from a
100-year, 24-hour rainfall event) for the
production area for new swine, poultry,
and veal sources (and the production
area BMPs) is technologically feasible
and will not pose a barrier to entry for
new sources subject to Subpart D. It is
common for new poultry, veal, and
swine operations to construct facilities
that keep the animals in total
confinement. In addition, many new
operations are based on manure
handling systems  that greatly reduce or
eliminate water use, such as hog and
poultry high-rise houses, or that contain
manure in covered or indoor facilities,
such as underpit storage systems and
litter storage sheds. EPA has carefully
evaluated the concerns raised in
comments regarding the technical
feasibility of total containment at swine,
poultry, and veal operations. The
concerns raised by commenters are
primarily associated with operational
factors and the effect of climate on the
use of lagoon covers. New sources will
avoid the design challenges and retrofit
costs that existing sources would face
with these requirements. Based on the
information in the record, and as
discussed above, EPA has received data
to demonstrate that each of these factors
has been successfully handled at CAFOs
and other facilities. Therefore, EPA
concludes that the total containment
requirements of this rule could be met
through the use of lagoon covers if
facilities choose to do so. However, by
retaining all manure and process
wastewater within the building (for
example, by using underhouse pits) and
not using an outdoor liquid
impoundment, these operations will
avoid the operational challenges posed
by covers. Additional compliance
flexibility is provided by the provision
that allows the zero discharge standard
to be met by designing, constructing,
operating, and maintaining waste;
management and storage facilities to
contain all manure, litter, and process
wastewater including the runoff and the
direct precipitation from a 100-year,
24-hour rainfall event.
  The land application requirements
included in this rule for all Large
CAFOs that are new sources are  .
identical to those established under
BAT for existing sources and are
consistent with appropriate agricultural
utilization of nutrients. These land
application requirements will ensure
that CAFOs apply manure, litter, and
other process wastewaters at a rate and
in the manner necessary to meet the
requirements of the crops grown and not
exceed the ability of the soil and crop
to absorb nutrients. Limits on the-rate at
which manure can be applied and
certain other constraints on application
practices, such as setbacks and
vegetated buffers, are widely
demonstrated as achievable and as the
best available demonstrated control
technology, and have been imposed by
a number of States and through NPDES
permits.
  EPA evaluated economic impacts to
new source CAFOs by comparing the
costs borne by new source CAFOs to
those estimated for existing sources.
That is, if the expected cost to new
sources is similar to or less than the
expected cost borne by existing sources
(and that cost was considered
economically achievable for existing
sources), then EPA considers the
regulations for new sources do not
impose requirements that might grant
existing operators a cost advantage over
new CAFO operators and further
determines that the NSPS is affordable
and does not present a barrier to entry
for new facilities. In general, costs to
new sources for complying with a given
set of regulatory requirements are lower
than the costs for existing sources to
comply with the same requirements
since new sources are able to apply
control technologies more efficiently
than existing sources that may incur
high retrofit cost. New source CAFOs
will be able to avoid the retrofit costs
that will be incurred by existing
sources.  For example, the cost of a
model total containment system for
swine that would meet the no discharge
requirement (e.g., incremental cost of
deep pit swine house, including land
application) typically is less than; the
cost for an existing source to retrofit
water intensive lagoon-based systems
that are exposed to precipitation.
Among the primary reasons for the
capital cost difference for a new source
with total containment is that it does
not include an impoundment lagoon,

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  7226     Federal Register/Vol.  68,  No. 29/Wednesday, February 12,  2003/Rules and Regulations
 and it experiences reduced operating
 costs because it handles less waste with
 substantially lower water and higher
 solids content than a water-intensive
 lagoon-based system. New sources may
 be able to avoid many of the other
 control costs facing some existing
 producers through careful site selection,
 such as choosing to locate at a site with
 sufficient available land nearby for
 applying manure. Furthermore, other
 technologies are available to new
 sources, that have been implemented by
 existing sources, that are also capable of
 achieving the no discharge standard.
 See section IV C above for further
 discussion of other technologies. Since
 the new source requirements for
 Subpart C are the same as the
 corresponding existing source
 requirements, EPA concludes that the
 NSPS requirements promulgated today
 do not present a barrier to entry for new
 facilities. For Subpart D facilities, where
 the new source requirements are more
 stringent than the existing source
 requirements, EPA concludes that the
 NSPS requirements do not pose a barrier
 to entry because of the currently
 widespread use of animal confinement
 practices and waste management
 technologies that can comply with the
 zero discharge standard, and because
 these total containment technologies
 and practices are less costly to
 implement than water-intensive systems
 (e.g., such as water flush waste
 management) that are exposed to
 precipitation. EPA costed for zero
 discharge technologies and showed that
 these would pose no barrier to entry.
 Now that operations can choose an
 alternative option that might be cheaper
 to implement, EPA believes that there is
 even less likelihood that there is a
 barrier to entry. More information is
 provided in the Technical Development
 Document and the Economic Analysis
 supporting the final regulations.

 3. What Technology-Based Limitations
 Apply to Small and Medium CAFOs?
  In today's final rule, small and
 medium-size AFOs that have been
 defined or designated as CAFOs by the
 permitting authority would not be
 subject to the effluent limitations
 guidelines and standards specified in
 part 412. (Refer to section IV.C.2.a. of
 this preamble for a discussion of the  key
 public comments and EPA's final
 analysis for applying the effluent
 limitations guidelines only to Large
 CAFOs.) Rather, for Small and Medium
 CAFOs the permit writer would use BPJ
to establish, case by case, the
appropriate technology-based
requirements  for each permit. The
technology-based requirements must
 address the production area and the
 land application area(s). Establishing
 permit limits for these facilities on a BPJ
 basis, using 40 CFR 125.3 as a guide for
 the types of factors to consider, allows
 for the establishment of permit
 conditions that are tailored to and more
 directly address the site-specific
 conditions that led to the facility being
 defined or designated as a CAFO. In
 instances jwhere technology-based
 requirements are not protective of water
 quality, the permit writer will also
 establish water quality-based effluent
 limits.   !
   For the production area, the
 permitting authority must establish the
 technology-based limitations on the
 discharge,of manure, litter, and process
 wastewater, including limitations where
 applicabl^ based on the minimum
 duration atid intensity rainfall event for
 which the CAFO can design and
 construct k system to contain all
 manure, lijtter, and process wastewater
 and storm'water. Technical references
 from USDA and the American Society of
 Agricultural Engineers should be
 consulted jfor appropriate design factors
 to consider for containment structures.
 Typical design factors are: (I) Sludge
 volume, (2) treatment volume, (3)
 volume ofi manure and wastewater
 between drawdown events, (4) total
 volume for runoff and precipitation, and
 (5) the minimum duration and intensity
 rainfall event portion of (4).
   For the land application area, the
 permitting authority must consider
 permit requirements that place
 technology-based limits on discharges
 resulting from the application of
 manure, litter, and process wastewater
 to land unjler the control of the CAFO
 owner or operator, including restrictions
 on the rates of application to ensure
 appropriate agricultural utilization of
 nutrients. In today's final rule, all
 CAFOs must develop and implement a
 nutrient management plan (as described
 in the next, section).

 4. Will CAFOs Be Required To Develop
 and Implement a Nutrient Management
 Plan?

  Under today's final rule, NPDES
 permits for all CAFOs will require the
 development and implementation of a
 nutrient management plan. At a
 minimum, [a nutrient management plan
 must include BMPs and procedures
 necessary to achieve effluent limitations
 and standards. The plan must, to the
 extent applicable, address the following
 minimum elements:
  • Ensure adequate storage of manure,
 litter, and process wastewater, including
procedures to ensure proper operation
 and maintenance of the storage
 facilities;
   • Ensure proper management of
 animal mortalities (i.e., dead animals) to
 ensure that they are not disposed :of in
 any liquid manure, storm water, or
 process wastewater storage or treatment
 system that is not specifically designed
 to treat animal mortalities;
   • Ensure that clean water is diverted,
 as appropriate, from the production
 area;
   • Prevent direct Contact of confined
 animals with waters of the United
 States;
   • Ensure that chemicals and other
 contaminants handled on-site are'not
 disposed of in any manure, litter, or
 process wastewater, or storm water
 storage or treatment system, unless
 specifically designed to treat such
 chemicals and other contaminants;
   •  Identify appropriate site specific
 conservation practices to be
 implemented, including as appropriate
 buffers or equivalent practices, to.
 control runoff of pollutants to waters of
 the United States;             •
   •  Identify protocols for appropriate
 testing of manure, litter, process
 wastewater, and soil;
   •  Establish protocols to land apply
 manure, litter, or process wastewater in
 accordance with site specific nutrient
 management practices that ensure
 appropriate agricultural utilization of
 the nutrients in the manure, litteri, or
 process wastewater; and
   •  Identify specific records that will be
 maintained to document the
 implementation and management of the
 minimum elements described above.
   For Large CAFOs these minimum
 elements of a nutrient management plan
 must also meet the more detailed.
 requirements in the part 412 effluent
 guidelines. For Small and Medium
 CAFOs, or other operations not  •
 otherwise subject to part 412
 requirements for land  application, the
 minimum elements of a nutrient
 management plan will be further
 specified in the permit, on a site specific
 basis, based on the best professional
 judgment  of the permitting authority.
   What did EPA propose? In the
 proposed rule, EPA introduced the
 concept of a "Permit Nutrient Plan"
 ("PNP"), and proposed that permits for
 all CAFOs would require the
 development and implementation of a
 PNP. For CAFOs not subject to the
 ELGs, the proposal called for the
 permitting authority to consider the
need for a PNP.
  The concept of a PNP, as opposed to
the use of the term CNMP, was used by
EPA to identify those specific aspects of
a CNMP that would be required under

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           Federal Register/Vol. 68, No. 29/Wednesday, February  12,  2003/Rules and Regulations     7227
the proposed regulatory program. In the
proposal EPA included a discussion
documenting the relationship between a
CNMP and a PNP. EPA also prepared,
and made available for public review as
a supporting document, a draft guidance
document entitled Managing Manure
Nutrients at Concentrated Animal
Feeding Operations which provided  ,
information concerning the content of a
PNP. The PNP was considered to be the
subset of activities in a USDA defined
CNMP that relate to compliance with
the effluent discharge limitations and
other requirements of the NPDES
permit.  EPA also proposed that it be
developed, or reviewed and modified,
by a certified specialist. The proposal
would have required the PNP to  be
developed within 3 months of
submitting either an NOT for coverage
under an NPDES general permit  or an
application for an NPDES individual
permit.  CAFO operators would be
required to notify the permitting
authority when the PNP had been •
developed. EPA's position was that the
content of a PNP was consistent with
that of a CNMP and could be addressed
in a single plan for a given operation.
   What were the key comments? In
general, commenters supported the
concept of requiring the development
and implementation of nutrient
management plans by CAFOs. Although
commenters generally supported the
overall  concept, many did not endorse
the specific approach taken by EPA in
the proposed rule. There was significant
comment from stakeholders that the
PNP would require the development of
a separate plan in addition to a CNMP.
Although EPA had intended the PNP to
be a subset of information contained
•within  a typical CNMP, not an
independent or separate plan, a number
of commenters misunderstood that
point, and otherwise felt that the
proposal would result in confusion in
the regulated community.
   The SBAR Panel noted the concerns
of some small business representatives
regarding the practical difficulties of
ensuring that manure is always  applied
at agronomic rates. The Panel
recommended that EPA continue to
work with USDA to explore ways to
 limit permitting requirements to the
 minimum necessary to deal with such
 threats and to define what is
 "appropriate" land application
 consistent with the agricultural storm
 water exemption. The Panel agreed that
 if manure and wastewater are applied to
 land at agronomic rates and a facility is
 designed to contain the discharge  from
 a 25-year, 24-hour storm, that facility
 would  have minimal potential to
 discharge or adversely affect water
quality. However, it is also possible that
an operation might land apply in excess
of agronomic rates but still not
discharge, depending on such factors as
annual rainfall, local topography, and
distance to the nearest stream. The
Panel recommended that EPA consider
such factors as it develops requirements
related to land application.
  The SBAR Panel also raised concerns
related to the development and
implementation of CNMPs, as well as
specific requirements for applying
nutrients at a phosphorous-based rather
than a nitrogen-based rate in certain
circumstances. Small business
representatives expressed concerns
about application of manure at
phosphorus-based rates. The Panel
noted the high cost of phosphorus-based
application relative to nitrogen-based
application and supported EPA's intent
to require the use of phosphorus-based
application rates only where necessary
to protect water quality, if at all, keeping
in mind its legal obligations under the
Clean Water Act. If the soil is not
phosphorus-limited, nitrogen-based
application should be allowed. The
Panel recommended that EPA consider
leaving the determination of whether to
require the use of phosphorus-based
rates to BPJ, and continue to work with
USDA in exploring such an option.
   Rationale. In the March 1999 USDA/
EPA Unified National Strategy for
Animal Feeding Operations EPA and
USDA endorsed the concept of CNMPs
for all AFOs. The Strategy
acknowledged that the vast majority of
these plans would be developed under
voluntary programs while a limited
number would be prepared under the
regulatory program. In today's final rule,
CAFOs, which represent only a small
proportion of all AFOs, are required to
have a nutrient management plan, and
the nutrient management plan
represents a subset of activities within
a CNMP that are necessary for CWA
regulatory purposes. EPA believes that
this approach is consistent with the
concepts in the Strategy.
   EPA explained in section IV.C.2.b
 above that the BMPs specified in today's
regulation, including the requirement to
 develop and implement a nutrient
 management plan, represent the
 minimum elements of an effective BMP
 program and are necessary to control the
 discharges of pollutants to surface
 waters. As discussed there, non-numeric
 effluent limitations consisting of BMPs
 are particularly suited to the regulation
 of CAFOs. In particular, EPA believes
 that it is generally infeasible to establish
 a numeric effluent limitation for
 discharges of land-applied CAFO waste.
 The factors that make a numeric
limitation infeasible include, among
other things, that storm water discharges
can be highly intermittent, are usually
characterized by very high flows
occurring over relatively short time
intervals, and carry a variety of
pollutants whose nature and extent vary
according to geography and local land
use. Accordingly, the final regulations at
section 122.42(e) specify the need for a
nutrient management plan for all.
CAFOs and the general elements that
the plan must address.
  For Large CAFOs, EPA has specified
the need for a nutrient management
plan as a non-numeric effluent
limitation in the form of a BMP
requirement under the final ELGsi. For
Small and Medium CAFOs, and other
operations that are not subject to the
CAFO effluent guidelines, authority to
require a nutrient management plan
exists under Clean Water Act sections
402(a)(l) and (2) and 40 CFR 122.44(k).
EPA believes that a nutrient
management plan requirement for the
Small and Medium CAFOs is necessary
in order to appropriately control
discharges of pollutants and otherwise
carry out the purposes and intentiof the
CWA. For these operations, EPA found
it was appropriate for the final rule to
specify, on a national basis, the
requirement for a nutrient management
plan and the general elements that the
plan must address. In turn, the final rule
allows the permitting authority to
include, on a best professional judgment
basis in light of more localized factors,
more specific nutrient management plan
requirements as necessary to ensure
appropriate agricultural utilization of
nutrients at the operation.
   EPA has addressed the SBAR panel
concerns by defining the scope of a
nutrient management plan with -
reference to those elements necessary to
ensure that manure is managed
effectively insofar as they are related to
possible discharges to surface water.
Further, today's final rule requires land
application rates based on the site-
specific technical standards established
by the Director.
   EPA agrees that the use of the term
PNP created unintended confusion.
While EPA remains a strong advocate of
the development of CNMPs the Agency
recognized the need to address this
confusion. In response to comments,
EPA is relying on the more generic term,
 "nutrient management plan" in today's
rule. By way of clarification, the :
 nutrient management plan is a separate
 and distinct term that applies to the
 subset of activities in a USDA-defined
 CNMP that are required by the CAFO
 effluent guidelines or NPDES permit
 regulations. These requirements are

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7228      Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and  Regulations
defined in today's rule as the minimum
elements that all nutrient management
plans, developed as a special condition
of an NPDES permit, must meet. EPA
expects that many CAFOs will satisfy
the requirement to develop a nutrient
management plan by developing a full
CNMP, although a full GNMP is not
required in today's regulations. The
minimum measures of a nutrient
management plan in today's final rule
are consistent with the content of both
the PNP as proposed by EPA and the
CNMP as defined by USDA. EPA's
position remains that the development
and implementation of a full CNMP is
one of the most effective methods for a
permitted operation to demonstrate
compliance with the nutrient
management plan requirements required
by this rule.
  In today's rule, EPA is requiring all
CAFOs to develop and implement a
nutrient management plan by December
31, 2006, except that CAFOs seeking to
obtain coverage under a permit
subsequent to that date must have a
nutrient management plan developed
and implemented upon the date of
permit coverage. This is consistent with
the dates being established for the ELG.
As discussed in section IV.C.2.b of this
preamble, the ELGs promulgated today
require Large CAFOs that are existing
sources  to implement the land
application requirements at 40 CFR
412.4(c) by December 31, 2006 because
that is the date when EPA is assured
that the required planning is in fact
available to the great number of
regulated sources. For Large CAFOs that
are new sources (i.e., those commencing
construction after the effective date of
this rule), the land application
requirements at 40 CFR 412.4(c) apply
immediately.
  EPA has similarly concluded that
Small and Medium CAFOs subject  to
the NPDES provisions for nutrient
management plans also, in general, will
be unable to develop and implement a
nutrient management plan by the date
they will need to seek permit coverage
under the requirements of this rule, for
reasons  of insufficient infrastructure.
Therefore, EPA is requiring Small and
Medium CAFOs to develop and
implement NMP plans by December 31,
2006. As discussed in section IV.C.2.b,
among other things, this time frame
allows reasonable time for States to
update their NPDES programs and issue •
permits  to reflect the nutrient
management plan requirements of
today's rule and provides 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 available infrastructure for
development of nutrient management
plans. Refer to section rV.C.2.b for
additional discussion on the time frame
by which CAFOs must implement the
land application requirements of 40 CFR
412.4(c),|
  Through the permit application
process (every five years), a nutrient
management plan will have to be
reviewed and updated by the CAFO
owner or operator. EPA  recognizes that
the nutrient management plan will be a
dynamic document that might require
updates more frequently than every five
years. A site-specific nutrient
management plan that reflects the
current CAFO operation must be
maintained on-site by the CAFO owner/
operator; The most obvious factor that
would necessitate an update to the
nutrient management plan is a
substantial change in the number of
animals at the CAFO. A  substantial
increase in animal numbers (for
example,an increase of greater than 20
percent) >rould significantly increase
the volume of manure and total nitrogen
and phosphorus produced on the CAFO.
As a result, the CAFO would need to
reevaluate animal waste storage
facilities; to ensure adequate capacity
and may1 need to reexamine the land
application sites and rates. Another
example ;of a reason for updating the
nutrient management plan is a change
in a CAFO's cropping program, which
could significantly alter land
application of animal waste. Changes in
crop rotation or crop acreage, for
instance] could significantly alter land
application rates for fields receiving
animal waste.

5. Does EPA Require Nutrient
Management Plans To Be Developed or
Reviewed by a Certified  Planner?
  Although EPA promotes and supports
the use of certified specialists to help
ensure the quality of nutrient
management plans, the Agency is not
requiring such plans to be developed or
reviewecj by a certified planner as part
of this final rule.
  What Sid EPA propose? EPA
proposed the Permit Nutrient Plans be
developed, or reviewed and modified,
by a certified specialist.  A certified
planner was defined as someone who
has been! certified to prepare CNMPs by
USDA or a USDA sanctioned   '
organization.
  What were the key comments? EPA
received ja number of comments on this
provision. Many States support a State
certification program where they would
have the 'flexibility to develop their own
program. Some producers and
environmental groups supported;
certified plans as outlined in the :
proposal. Many comments related to the
cost of having a specialist develop or
review a plan and whether there are
enough specialists across the country to
handle the volume of work. Some said
that a certified plan would not achieve
the goal of improved water quality.
Others said that operators should.be
able to develop their own plan, noting
that USDA tools and other resources are
available to operators and a specialist is
not needed. There was also concern that
EPA was limiting the type of specialist
by listing, in the proposal, examples of
who might be a specialist.
  Rationale. EPA agrees that
certification programs are more
appropriately developed by USDA or at
the State level. State resources,
coordination with local stakeholders,
and State requirements relating to
nutrient management are some of the
factors that may influence State specific
certification programs. EPA shares the
concerns regarding the current capacity
to develop up to 15,500 certified plans
for CAFOs and meet the demands from
a universe of 222,000 other AFOs
requesting CNMPs through USDA's
voluntary program. Currently, EPA does
not have a reliable estimate on the
number of certified specialists available
for developing and implementing
nutrient management plans. However,
EPA recognizes that some States already
have certification programs in place for
nutrient management planning, and
expects that the USDA and EPA
guidance for AFOs and CAFOs will
provide additional impetus for new and
improved State certification programs.
These programs provide an excellent
foundation for producing qualified
specialists for nutrient management
planning. When all of these State
certification programs are in place, EPA
expects that there will be sufficient
capacity to develop and implement the
required nutrient management plans by
the required regulation implementation
date of December 31, 2006.
  Although not required, EPA
encourages CAFOs to make use of
certified specialists with the expertise to
develop high quality nutrient   '.
management plans. The purpose pf
using certified specialists is to ensure
that effective nutrient management
plans are developed and/or reviewed
and modified by persons who have the
requisite knowledge and expertise to
develop nutrient management plans that
meet the regulatory requirements 'and
that are appropriately tailored to the
site-specific needs and conditions at
each CAFO. Interested parties should

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           Federal Register/Vol. 68, No. 29/Wednesday, February 12,  2003/Rules and Regulations      7229
consult with USDA, State Agricultural
Departments, and their NPDES
permitting authority regarding the
availability of certified specialists and
opportunities to be certified.
  Under today's final rule operators
may develop and implement their own
nutrient management plan, and may
themselves become certified nutrient
management planners. In fact, EPA
indicated in the SBAR Panel Report that
it expected that many operators could
become certified through USDA or land
grant universities to prepare their own
nutrient management plans. While no
definitive number is currently available,
results from preliminary draft studies
indicate that the average CNMP cost per
farm was §7,276 per year. The list of
sources in the proposal of who can
provide CNMP certified specialists is
there only as a sample list. It in no way
precludes or prevents an operator from
obtaining a CNMP from an alternate
source.
6. What Are the Special Conditions
Applicable to All NPDES CAFO
Permits?
  In today's rule EPA is defining two
special conditions that are to be ,
required in all NPDES CAFO permits:
(1) CAFO owners or operators must
develop and implement a nutrient
management plan that addresses
specific minimum elements and (2) the
CAFO owner or operator must maintain
permit coverage for the CAFO until
there is no remaining potential for a
discharge of manure, litter, or associated
process wastewater other than
agricultural storm water from land
application areas, that was generated
while the operation was a CAFO (i.e.
proper closure). The special conditions
in an NPDES permit are used primarily
to supplement effluent limitations and
ensure compliance with the Clean Water
Act.
  A discussion of the specific nutrient
management plan requirements of
today's rule, the key public comments
and EPA rationale for requiring nutrient
management plans is included in
section IV.C.4 of this preamble.
  In today's rule, EPA is adopting as
final the proposal to require permitted
CAFOs that lose their status as CAFOs
(e.g., they cease operations, or reduce
their number of animals below the
regulatory thresholds) to retain an
NPDES permit until there is no
remaining potential for a CAFO-
generatod discharge other than
agricultural storm water from the land
application areas. Should the facility's
permit expire, the owner/operator
would be required to reapply for an
NPDES permit if the facility has not
been properly closed (i.e., the facility
still has a potential to discharge). Proper
facility closure includes but is not
limited to removal of water from
lagoons and proper disposal or reuse of
manure removed from storage areas
such as pens, lagoons, and stockpiles.
For CAFO facilities that down-size to
become AFOs, proper closure of the
CAFO is achieved when there is no
longer a potential to discharge any
manure, litter, or process wastewater
generated while the operation was a
CAFO.
  What did EPA propose? In the
proposal, the Agency  discussed a
variety of options for ensuring proper
closure of CAFOs, including applying
financial instruments, preparing closure
plans, and, as adopted today, retaining
an NPDES permit until the  facility is
properly closed.
  EPA proposed two additional special
conditions that are not being included
in today's final rule. EPA proposed that
the permit writer must consider whether
to include special conditions to address
(1) Timing restrictions on land
application of manure or litter and
wastewater to frozen, snow-covered, or
saturated ground, and (2) conditions to
control discharges to ground water with
a direct hydrologic connection to
surface water. Although today's rule
does not include a national requirement
for either of these issues to  be regulated
in the permit, the permitting authority
may impose permit terms and
conditions that address either of these
issues on a case-by-case basis as
appropriate. See section IV.C.2.b above
for a discussion of the key comments on
these two issues and EPA's reasons for
not including either of them as national
requirements in today's rule.
  What were the key comments?
Industry comments largely supported
the proposal to require facilities to
retain an NPDES permit until properly
closed.  Some environmental groups,
U.S. Fish and Wildlife Service, some
States and citizens preferred a closure
plan with financial assurance,
expressing concern that taxpayers end
up paying to clean up abandoned
lagoons, whereas this should be the
responsibility of the CAFO operator.
Some commenters opposed the closure
requirement, stating that it was
inconsistent with and more restrictive
than NPDES requirements  for other
industry sectors. Others questioned the
practical meaning of closure, as well as
the practical ability of permit authorities
to track such closed facilities.
  Rationale. EPA's establishment of a
minimum national standard for closure
will help ensure the environmental risks
associated with CAFO manure and
wastewater are minimized upon closure.
Although EPA is not establishing
financial surety measures, States may
want to implement them as appropriate
under their own authorities to prevent
the environmental damage caused by
facilities that are no longer in business.
EPA concluded that requiring retention
of an NPDES permit provides a far more
effective tool for environmental
protection than would simply requiring
a closure plan that might, or might not,
be effectively implemented.
  In practical terms, how clean a facility
must be to meet closure requirements
that the operation no longer has a
potential to discharge will be left >to the
permitting authority. EPA is not
requiring CAFO facilities to post bonds
to obtain an NPDES permit, nor does
EPA calculate that closure costs are
necessarily high. EPA assumes that
disposal methods normal to the
operation will be used to close ouc the
facility.
  The need to maintain NPDES
coverage until proper closure of the
CAFO is a result of the unique nature of
CAFO facilities. As a part of their
normal operation CAFOs may, among
other things, have manure and litter
storage structures, lagoons, and feed
storage areas. The abandonment of any
one of these has the potential for
catastrophic environmental damage to
waters of the U.S. As a result, to protect
against unauthorized discharges, there
is a need to maintain coverage of the
facility under the NPDES permit until
the facility is properly closed. Upon
verification of the proper closure of the
facility by the permitting authority there
will be no need to retain the NPDES
permit. The NPDES permit can then be
terminated and there would be no
longer any need to track the facility.
EPA expects that the State permitting
authority will cease to issue a permit
based on evidence that the facility is
properly closed. It is not expected that
this will be a major burden to the.States.

 7. Standard Conditions Applicable to
All NPDES CAFO Permits
  Standard conditions in an NPDES
- permit are preestablished conditions
that apply to all NPDES permits, as
specified in 40 CFR 122.41. They
include Duty to Comply, Duty to
Reapply, Need to Halt or Reduce
Activity Not a Defense, Duty to Mitigate,
Proper Operation and Maintenance,
Permit Actions, Property Rights, Duty to
Provide Information, Inspection and
Entry, Monitoring and Records,
 Signatory Requirement, Reporting
Requirements, Bypass and Upset.
Today's action does not make any
 changes to the standard permit

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7230      Federal Register/Vol. 68, No. 2^/Wednesday, February 12,  2003/Rules and Regulations
conditions, with respect to NPDES
permits issued to CAFOs.

D. What Records and Reports Must Be
Kept On-Site or Submitted?
  Today's rule specifies the types of
records to be kept on-site at the CAFO
in accordance with the recordkeeping
requirements section of the permit-
Today's rule also specifies the types of
monitoring to be performed, the
frequencies for collecting samples or
data, and how to record, maintain, and
transmit the data and information to the
permitting authority in accordance with
the monitoring and reporting section  of
the permit.
  The specific recordkeeping,
monitoring, and reporting requirements
in today's rule balance the need for
information documenting permit
compliance and minimizing the burden
on the permittee to collect and record
data. State permit authorities have the
option to include more stringent
requirements if they find such an action
necessary. The minimum
recordkeeping, monitoring, and
reporting requirements that must be
included in each NPDES permit are as
follows:
  Recordkeeping requirements. All
CAFO operators must maintain a copy
of the site specific nutrient management
plan on site, and records documenting
the implementation of the best
management practices and procedures
identified in the nutrient management
plan.
  In addition, Large CAFOs must
maintain operation and maintenance
records that document (a) visual
inspections, inspection findings, and
preventive maintenance needed or
undertaken in response to the findings;
(b) the date, rate, location, and methods
used to apply manure or litter and
wastewater to land under the control  of
the CAFO operator; (c) the results of
annual manure  or litter and wastewater
sampling and analysis to determine the
nutrient content; and (d) the results of
representative soil sampling and
analyses conducted at least every five
years to determine nutrient content.
  Large CAFOs must also maintain
records of manure transferred to other
persons that demonstrate the amount of
manure and/or wastewater that leaves
the operation and record the date, name,
and address of the recipient(s);
  Today's rule requires all CAFOs to
submit an annual report that includes
the following information:
  • Number and type of animals
confined (open confinement and housed
under roof).
  • Estimated amount of total manure,
litter, and process wastewater generated
by the CAFO in the previous 12 months
(tons/gallons);
  • Estimated amount of total manure,
litter, and process wastewater
transferred to other persons by the
CAFO in the previous 12 months (tons/
gallons);
  • Total number of acres for land
application covered by the nutrient
management plan;
  • Total number of acres under control
of the CAFO that were used for land
application of manure, litter, and
process wastewater in the previous 12
months;
  « Summary of all manure and
wasteWater discharges from the
production area that have occurred in
the preVious 12 months, including date,
time, and approximate volume; and
  • A Statement indicating whether the
current version of the CAFO's nutrient
management plan was developed or
approved by a certified nutrient
management planner.
  What did EPA propose? EPA
proposed requirements to keep,
maintain for five years, and make
available to the Director or the Regional
Administrator, records of inspections
and manure sampling and analysis,
records related to the development and
implementation of a PNP, and records of
off-site: transfers of manure. EPA
proposed that CAFO operators maintain
records of off-site transfer and provide
the recipient with a brochure on proper
land application practices. EPA also
proposed a small quantity exemption
limit below which an operator would
not have  to keep records of manure
transfers. EPA proposed operators
submit; a  cover sheet and executive
summary of their permit nutrient plans
to the permitting authority. In addition,
the Agency proposed to require
operators to submit a written
notification to the permitting authority,
signed jby a certified planner, that the
PNP has been developed or amended
and is being implemented. The proposal
required annual review of the PNP and
re-submission of the executive summary
if there were any changes to the PNP.
  Today's final rule changes the
recordlceeping and reporting
requirements that were proposed in the
following ways: EPA is not requiring the
CAFO bwner or operator to provide the
recipient of the manure with a brochure
that describes the recipient's
responsibilities for appropriate manure
management,  and EPA is not adopting
the proposal to set a minimum quantity
exemption, such that records of manure
transfer would not be required below a
certain quantity. In addition, EPA is no
longer requiring CAFO operators to
submit: with the NOI a copy of the cover
sheet and executive summary of the
CAFO operator's current Permit
Nutrient Plan (PNP).  ,
  What were the key comments? EPA
received a number of comments on the
proposed recordkeeping, monitoring,
and reporting requirements. The
operators commented that monitoring
and reporting programs are difficult to
establish, expensive, and burdensome
on the operator. They also claimed that
these requirements would necessitate a
significant amount of operator time and
labor, and would provide opportunities
for "technical" permit violations,; with
no benefit to water quality.
Environmental groups and a majority of
citizen commenters stated that these
provisions are long overdue and any
records submitted should be made
available for public review.
  The SBAR Panel recommended that
EPA give careful consideration to^all
proposed recordkeeping requirements
and explore options to streamline these
requirements for small entities.
Regarding the requirement to provide
nutrient content information to manure
recipients, the Panel believed that this
would be minimally burdensome^f
analysis of this content is already
required as part of the CNMP to ensure
proper land application. The Panel
suggested that EPA consider limiting
any requirement to provide nutrient
content analysis to situations where
such analysis is required as part of the
CNMP to ensure proper on-site land
application, or possibly where the
operator transfers manure to multiple
recipients. Finally, the Panel note;d that
under the Paperwork Reduction Act and
its implementing regulations, all
reporting and recordkeeping
requirements must be certified by the
issuing agency to have practical utility
and to reduce, to the extent practicable
and appropriate, the burden on those
required to comply, including small
entities (5 CFR 1320.9).
  Rationale. The recordkeeping,
reporting, and monitoring requirements
adopted today are necessary to
demonstrate compliance with the
requirements of today's rule and assure
protection of water quality.
  EPA is not requiring Small and
Medium CAFOs to maintain records of
the of the manure transferred off-site, or
provide the recipient with an analysis of
the nutrient content of the manure. As
a result, these categories of CAFOs are
relieved of the burden of keeping;
records of off-site transfer. EPA chose to
provide regulatory relief for the Medium
CAFOs by not requiring them to keep
records of their manure transferred to
third parties. EPA believes these CAFOs
have more land and therefore ship less

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           Federal Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules  and Regulations      7231
manure off-site, EPA's goal is to track
the majority of the manure that is
transferred to third parties. This
information kept by the large operations
is sufficient for EPA needs.
  EPA decided not to include a small
quantity exemption for off-site transfer
of manure in the final rule. The reason •
for the proposed exemption was to  ,
provide record keeping relief to small
operators. However, EPA determined
that effective implementation of the
small-quantity exemption would itself
have required considerable
recordkeeping by the operator.
Practically, then, including this
exemption would not have significantly
reduced the record keeping burden to
small operators.
  The annual report, which includes
seven elements that are readily available
to the CAFO owner/operator in the
nutrient management plan, is being
required in today's rule rather than the
proposed PNP written notification,
cover sheet and executive summary.
The annual report gives the permitting
authority information on the number of
overflows occurring in a year (in order
to verify compliance with the
production area design requirements),
the amount of manure generated, the
amount of manure transferred off-site,
and the number of acres available for
land application. The annual report also
provides information, such as the degree
to which CAFOs are expanding and
accounting for increased manure
production, which is important to
evaluate changes that might be needed
to comply with permitting
requirements. The final rule requires the
permittee to indicate whether its plan
was either written or reviewed by a
certified CNMP planner. EPA is not
requiring that a certified planner be
used to develop or review the plan
required under this rule. However, EPA
believes that certified planners provide
a valuable service in plan development
such as consistency and improved plan
quality. Knowledge of which plans were
developed by a certified planner will
help EPA focus its compliance
assistance efforts and help States
determine level of permit review needed
for each facility. EPA has concluded
that the annual report is a more effective
method for ensuring permitting
authorities and EPA nave basic
information documenting CAFO
performance relative to permit
requirements.
  EPA disagrees with the public
comments suggesting that the
monitoring and reporting requirements
do not provide any benefit to water
quality. Monitoring and reporting
provide the basis for CAFO operators
and permitting authorities to evaluate
compliance with the requirements of
today's rule and the associated
environmental implications. Monitoring
provides valuable benchmark
information and subsequent data that a
permittee can use to adjust its activities,
better comply with the requirements of
the permit, and thereby better control its
runoff or potential runoff. Monitoring
also provides documentation of the
operation's activities, which is essential
to determine whether regulatory
requirements are being implemented
effectively and the success of those
activities in protecting water quality.
Monitoring allows the permittee and the
permitting authority to know what, if
any, contribution the permittee is
making to the degradation of water
quality. Such information is also helpful
in determining the  improvements in
water quality as a result of permit
compliance activities.
  In this final rule, EPA has made great
efforts to reduce burden beyond what is
noted above. EPA has eliminated all
certifications that were proposed, which
include middle category certification
that a facility is not a CAFO,
certification of off-site manure
recipients, and the  use of certified
CNMP planners. In addition, EPA is not
including a national requirement for
operators to document that there is no
direct hydrological connection from
groundwater beneath their production
area to surface waters (or add controls
where there is such a connection).

V. States' Roles and Responsibilities

A. What Are the Key Roles of the States?
  State regulatory agencies with
authorized NPDES  programs are
principally responsible for
implementing and  enforcing today's
rule. This final rule obligates NPDES
permit authorities to revise their NPDES
programs expeditiously and to issue
new or revised NPDES permits to
include the revised effluent guidelines
and other permit requirements adopted
today. In authorized States, their role
would also include determinations for
no potential to discharge (see section
IV.B.2 of this preamble) and CAFO
designation (see section IV. A. 7 of this
preamble) of AFOs as CAFOs.
  Various State organizations, such as
environmental agencies, agricultural
agencies, conservation districts, play a
central role in implementing voluntary
and other programs (e.g., technical
assistance, funding, public involvement,
legal access to information, and setting
protocols] that support the goal of
protecting water quality through proper
management of animal manure. EPA
fully expects and promotes effective
cooperation between voluntary arid
regulatory programs to achieve this goal.
In designing this final rule, EPA has
placed the principal emphasis on Large
CAFOs which are part of the base
NPDES program. With this in mind,
EPA is promoting and encouraging
States to use the full range of voluntary
and regulatory tools to address medium
and small operations.           :

B. Who Will Implement These New
Regulations?
  The requirements of today's rule will
be implemented by issuing NPDES
permits. Today's rule will be
implemented by States with authorized
NPDES permit programs for CAFOs. As
of the date of this final rule, there are
45 States and 1 Territory with
authorized NPDES permit programs for
CAFOs. In States without an authorized
NPDES program for CAFOs and in
Indian Country, EPA will implement the
rule.
C. When and How Must a State Revise
Its NPDES Permit Program?
  NPDES regulations require State
NPDES permitting programs to be
revised to reflect today's changes within
one year of the date of promulgation of
final changes to the Federal CAFO
regulations (see 40 CFR 123.62(e)). In
cases where a State must amend or
enact a statute to conform with the
revised CAFO requirements, such
revisions must take place within two
years of promulgation of today's
regulations. States that do not have an
existing authorized NPDES permitting
program but who seek NPDES
authorization after these CAFO  •
regulatory provisions are promulgated
must have authorities that meet or
exceed the revised federal CAFO :
regulations at the time authorization is
requested.
  Today's regulation requires States to
have technical standards for nutrient
management consistent with 40 CFR
412.4(c)(3). If the State already has
nutrient management standards in
place, it is sufficient to provide those to
EPA along with the State's submission
of regulatory revisions to conform to
today's changes. If the State has riot
already established technical standards
for nutrient management, the Director
shall establish such standards by the
date specified in § 123.62(e) and provide
those to EPA along with the State's
submission of regulatory revisions.
  The NPDES program modification
process is described at 40 CFR 123.62.
Opportunities for public input into the
process of review and approval of State
program revisions and approvals is

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7232      Federal Register /Vol. 68, No.  29'/Wednesday, February 12, 2003/Rules and  Regulations
described in section V.C of this
preamble.

D. When Must States Issue New CAFO
NPDES Permits?

  EPA does not typically establish
requirements for when States must
develop-and issue NPDES permits.
However, today's regulations require'
GAFOs to seek NPDES permit coverage
under general permits within certain
time frames, and CAFOs may not
discharge any pollutants to waters of the
United States without a permit. Thus, it
is in States' interests to issue new or
revised NPDES permits in a timely
manner. It is EPA's expectation that new
general permits will be available no
later than the date on which CAFOs
have a duty to apply for an NPDES
permit.  See section IV.B.3 for a full
description of when CAFOs must seek
permit coverage.

E. What Types of NPDES Permits Are
Appropriate for CAFOs?

  The NPDES regulations provide the
permitting authority with the discretion
to determine the most appropriate type
of permit for a CAFO. The two basic
types of NPDES permits are individual
and general permits. An individual
permit is a permit specifically tailored
for a specific facility, while a general
permit is developed and issued by a
permitting authority to cover multiple
facilities with similar characteristics.
  EPA recognizes that most CAFOs  will
likely be covered by NPDES general
permits; however, there are some
circumstances where an individual
permit might be appropriate (e.g.,
exceptionally large facilities, facilities
that have a history of noncompliance, or
facilities applying for approval to use an
alternative performance standard in lieu
of baseline technology-based effluent
guidelines). The decision whether to
issue a general or individual permit lies
with the NPDES permitting authority.
Section VI of the preamble discusses
opportunity for public involvement in
the NPDES permitting process.
  As permit authorities explore
innovative permitting approaches, the
use of "watershed-based NPDES
permits" might become more prevalent.
For example, a watershed-based permit
could be issued to CAFOs within a
specific watershed. EPA is currently
promoting pilot projects to help
evaluate the benefits  of watershed-based
permitting and encourages States to use
such a flexible tool to address the varied
needs of specific watersheds.
F.What Flexibility Exists for States To
Use Other Programs To Support the
Achievement of the Goals of This
Regulation?
  In designing this final rule, EPA has
striven to maximize the flexibility for
States to implement appropriate and
effective programs to protect water
quality and public health by ensuring
proper management of manure and
related jwastewater. This rule establishes
binding legal requirements for Large
CAFOs and maintains substantial
flexibility for States to set other site-
specific requirements for CAFOs as
needed to achieve State program
objectives. EPA encourages States to
maximize use of voluntary and other
non-NPDES programs to support efforts
by medium and small operations to
implement appropriate measures and
correct ^problems that might otherwise
cause them to be defined or designated
as a CAJFO. EPA encourages States to
use the ;flexibility available under the
rule so that their State non-NPDES
programs complement the required
regulatory program. The following
examples can illustrate opportunities for
this State flexibility:
  • States are encouraged to work with
State agriculture agencies, conservation
districts, USDA and other stakeholders
to create proactive programs to fix the
problems of small and medium
operations in advance of compelling the
facilities to apply for NPDES permits.
  • Where a small or medium facility
has beela covered by an NPDES  permit,
the permitting authority may allow the
facility !to exit the permit program at the
end of the 5-year permit term if the
problems that caused the facility to be
defined or designated as a CAFO have
been corrected to the satisfaction of the
permitting authority.
  • A small or medium AFO might be
taking early voluntary action in good
faith to! develop and implement a
comprehensive nutrient management
plan, yet might have an unexpected
situation that could be the basis for  the
facilityfs being defined or designated as
a CAFO. EPA encourages the permitting
authority to provide an opportunity to
address the cause of the discharge
before defining or designating the
operation a CAFO.
  Thesfe examples are intended to
illustrate the flexibility that EPA is
promoting with regard to medium and
small operations. They are not
applicable to Large CAFOs.
  What did EPA propose? EPA's
proposed rule included an option to
expand substantially the criteria for
when medium and small AFOs could be
defined or designated as CAFOs. The
effect of these proposed changes to the
structure and definition of a CAFO was
to require a substantially larger number
of medium and small operations to be
brought into the NPDES regulatory
program. EPA estimated that as many as
30,000 medium and small AFOs could
be brought into the regulatory program
under this option. Another option
presented in the proposal was to ;
structure the permitting requirements to
build in inherent flexibility for the
medium facilities. In addition, the
proposal and the subsequent 2001
Notice introduced a variety of more
specific options for State flexibility,
including one under which a State with
an effective non-NPDES program could
request to operate under a simplified
permitting structure.            .
  What were the key comments? The
proposed expansion of the NPDES
program for medium and small
operations caused great concern, .
particularly among the States. Many
comments from both States and facility
operators centered on the desire that
EPA recognize the effectiveness of
existing State CAFO programs. More
specifically, many States wanted EPA to
allow effective State non-NPDES ;
programs to operate in lieu of a State-
run NPDES program,  particularly I in the
event that EPA in the final rule
expanded the criteria for defining
medium facilities as CAFOs.
  In general, comments from
environmental groups expressed '.
opposition to most types of flexibility
because of concerns regarding potential
loss of accountability at facilities .and
reduced public participation. Industry
commenters generally supported State
flexibility as necessary to address
factors such as soil, climate, and site
and regional characteristics that vary
within and among States. Commenters
maintained that State flexibility ;
promotes those program elements States
have found to be most effective and
allows States and industry to achieve
workable solutions to water quality
issues. States also supported    i
maintaining a high degree of flexibility
both to accommodate State-specific
characteristics and priorities and to
preserve their investment in existing
good quality programs. Some State and
industry commenters asserted that
EPA's options for flexibility wereitoo
limited.
  Rationale. EPA recognizes that EPA's
proposed expansion of the criteria for
when medium and small AFOs would
be defined or designated as CAFOs
would have had the effect of eliminating
the flexibility for States to use voluntary
and other programs. EPA is also aware
that many of the States authorized to

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           Federal Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations      7233
 Implement the NPDES program
 supplement their NPDES CAFO
 requirements with additional State
 requirements. Some States currently
 regulate or manage GAFOs
 predominantly under State non-NPDES
 programs, or in conjunction with other
 water quality protection programs
 through participation in the CWA
 section 401 certification process [for
 permits) as well as through other means
 (e.g., development of water quality
 standards, development of TMDLs, and
 coordination with EPA). Several States
 have effective alternative or voluntary
 programs that are intended to help small
 and medium operations fix potential
 problems that could cause them to he
 defined or designated as a CAFO.
  EPA is encouraging States to use their
 non-NPDES programs to help small and
 medium AFOs to reduce water quality
 impacts and to ensure that they do not
 become point sources under this
 regulation. To the extent the voluntary
 program eliminates the practice that
 results in the AFO's being defined or
 designated a CAFO, the AFO may not be
 required to obtain NPDES permit
 coverage. Given that EPA has not
 expanded the criteria for when AFOs
 would be defined as CAFOs, the Agency
 believes that States will have the
 flexibility necessary to leverage effective
 non-NPDES programs for medium and
 small AFOs, EPA has also offered
 specific examples of flexibility that
 permitting authorities can exercise.
  Once a facility is determined to be a
 CAFO, however, coverage under a
 permit issued by a non-NPDES program
 will not satisfy the NPDES permit
 requirement. EPA is committed to work
 with States to modify existing non-
 NPDES  State programs that currently
 regulate CAFOs to gainEPA's approval
 as NPDES-authorized programs. Such a
 change would require a formal
 modification of the State's authorized
 NPDES program, and the State would
 have to  demonstrate that its program
 meets all of the minimum criteria
 specified in 40 CFR part 123, Subpart B,
 for substantive and procedural
 regulations. Among other things, these
 criteria include the restriction that
 permit terms may not exceed five years,
 procedures for public participation, and
 provisions for enforcement, including
 third party lawsuits and federal
 enforceability.
VI. Public Role and Involvement
  The public has an important role in
 the entire implementation of the NPDES
Program, including the implementation
of NPDES permitting of CAFOs. The
NPDES regulations in 40 CFR parts 122,
 123, and 124 establish public
participation in EPA and State permit
issuance, in enforcement, and in the
approval and modification of State
NPDES Programs. The purpose of this
section is to provide a brief review of
the key areas where the public has
opportunities for substantial
involvement. These opportunities for
public involvement are long-standing
elements of the NPDES Program.
Nothing in today's final rule is intended
to inhibit public involvement in the
NPDES Program.
A. How Can the Public Get Involved in
the Revision and Approval of State
NPDES Programs?
  Sections 123.61 and 123.62 of the
NPDES regulations specify procedures
for review and approval of State NPDES
Programs.  In the case of State
authorization or a substantial program
modification, EPA is required to issue a
public notice, provide an opportunity
for public  comment, and provide for a
public hearing if there is deemed to be
significant public interest. To the extent
that these final regulations require a
substantial modification to a State's
existing NPDES Program authorization,
the public will have an opportunity to
comment on the proposed
modifications.

B. How Can the Public Get Involved if
a State Fails To Implement Its CAFO
NPDES Permit Program?
  Section 123.64 of the NPDES
regulations provides that any individual
or organization having an interest may
petition EPA to withdraw a State
NPDES Program for alleged failure of
the State to implement the NPDES
permit program, including failure to
implement the CAFO permit program.
C. How Can the Public Get Involved in
NPDES Permitting of CAFOs?
  Section 124.10 establishes public
notice requirements for NPDES permits,
including those issued to CAFOs. Under
these existing regulations, the public
may submit comments on draft
individual and general permits and may
request a public hearing on such a
permit. Various sections of part 122 and
§ 124.52 allow the Director to determine
on a case-by-case basis that certain
operations may be required to obtain an
individual permit rather than coverage
under a general permit. Section 124.52
specifically lists CAFOs as an example
point source where  such a decision may
be made. Furthermore, § 122.28[b)(3)
authorizes any interested person to
petition the Director to require an entity
authorized by a general permit to apply
for and obtain an individual permit.
Section 122.28(b)(3) also provides
 example cases where an individual
 permit may be required, including
 where the discharge is a significant
 contributor of pollutants. See    ;
 § 122.23(f)(3) for opportunities for
 public involvement in the process for
 making a "no potential to discharge"
 determination [refer to section IV:B.2 of
 this preamble for further discussibn).
 Nothing in today's final rule is intended
 to change these provisions.

 D. What Information About CAFds Is
 Available to the Public?
  Today's rule requires that all CAFOs,
 Large, Medium, and Small, and whether
 covered by a general or an individual
 permit,  report annually to the
 permitting authority the following
 information:
  • The number and type of animals,
 whether in open confinement or housed
 under roof;
  • The estimated amount of total
 manure, litter and process wastewater
 generated by the CAFO in the previous
 12 months;
  • The estimated amount of total
 manure, litter and process wastewater
 transferred to other person by the; CAFO
 in the previous 12 months;
  • The total number of acres forland
 application covered by the nutrient
 management plan;
  • The total number of acres under
 control of the CAFO that were used for
 land application of manure, litter, and
 process  wastewater in the previous 12
 months;
  • A summary of all manure, litter and
 process  wastewater discharges from the
 production area 'that have occurred in
 the previous 12 months, including date,
 time, and approximate volume; and
  • A statement indicating whether the
 current version of the CAFO's nutrient
 management plan was developed:or
 approved by a certified nutrient
 management planner.
  EPA expects that the permitting
 authority will make this information
 available to the public upon request.
 This should foster public confidence
 that CAFOs are complying with the
 requirements of the rule. In particular,
 the information in the annual report
 will confirm that CAFOs have obtained
 coverage under an NPDES permit, are
 appropriately controlling discharges
 from the production area, and have
 developed and are implementing a
 nutrient management plan. The annual
report will also provide summary
 information on discharges from the
 production area and the extent of
manure  production and available:land
 application area. This will help foster
public confidence that the manure is
being land applied at rates that ensure

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7234      Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
appropriate agricultural utilization of
nutrients.
  Today's rule makes no changes to the
existing regulations concerning how
CAFOs may make Confidential Business
Information (CBI) claims with respect to
information they must submit to the
permitting authority and how those
claims will be evaluated. Under the .
existing regulations at 40 CFR Part 2,
Subpart B, a facility may make a claim
of confidentiality for information it
must submit and EPA must evaluate this
claim if it receives a request for the
information from the public. Among the
factors that EPA considers in evaluating
such a claim are:
  • Must the information be legally
provided to the public under the Clean
Water Act, its implementing regulations,
or other authorities? If so, a claim of
confidentiality will be denied.
  • Has the facility adequately shown
that the information satisfies the
requirements for treatment as CBI? If
yes, the claim of confidentiality will be
upheld.
  Claims of confidentiality with respect
to information submitted to  the State
will be processed and evaluated under
State regulations.
  What was proposed? In the proposal,
EPA discussed submission of the PNP to
the permitting authority and its
availability to the public. The proposed
regulations would have required the
cover sheet and executive summary of
each CAFO's PNP to be made publicly
available. EPA proposed that the
information contained in these items
could not be'claimed as CBI. The
proposed regulations indicated that
anything else in the PNP could be
claimed as confidential by the CAFO,
and any such claim would be subject to
EPA's normal CBI procedures in 40 CFR
Part 2. See § 122.23(1) of the proposal.
  Key comments. Industry commenters
claimed that the PNP would contain
proprietary information. They stated
that EPA should protect these plans as
CBI where requested^by the CAFO. They
claimed that making the PNP publicly
available would  discourage innovation
in developing waste management
technologies  and could make CAFOs
vulnerable to unwarranted lawsuits.
Environmental groups stated that the
PNP must be publicly available, or
citizens would have no way of ensuring
that CAFOs are adequately developing
and implementing the PNPs. They also
expressed concerns about the burden of
traveling to the permitting authority's
offices to gain access to the plans. They
stated that the plans should be made
more Accessible to them by the
permitting authority, either by mail or
by posting on the internet.
  Rationale. The final CAFO regulations
require that various types of information
on th^ operation and waste management
practices of the facility be made
available to the permitting authority,
either routinely or upon request. The
permitting authority has discretion,
subject to applicable regulations, to
deterfnine how much of this
inforrhation to make available to the
public and in what manner. The Annual
Report that all CAFOs must submit is
designed to provide the permitting
authority with summary information
about, the implementation of the
nutrient management plan. EPA
believes that the information the public
is most interested in seeing is contained
in the Annual Reports.
  With respect to the contents of the
nutrient management plan, specifically,
today's rule requires that the nutrient
management plan be maintained on-site
at the|CAFO and submitted only at the
request of the permitting authority.
Upori submission of the nutrient
management plan to the permitting
authority, the CAFO operator can assert
a confidential business information
claim over the plan, in accordance with
applicable regulations. If the permitting •
authority receives a request for the
information, it will determine the
validity of the claim and provide the
requester with information in
accordance with the findings of the
determination and applicable
regulations.
  As inoted, today's rule makes  no
changes to the existing regulations
concerning how facilities may make CBI
clainis with respect to information they
mustj submit to the permitting authority
and how those claims will be evaluated.
Any changes to how the Agency handles
the issue of confidential business
information are beyond the scope of
today's rule and would have broad
implications across a number of EPA
programs. Instead EPA will evaluate
future CBI claims based on the
applicable laws and regulations (see,
e.g., CWA Section 402(j), 40 CFR Part 2,
Subpart B, and 40 CFR 122.7.

VII. Environmental Benefits of the Final
Rule
A. Summary of the Environmental
Benefits

  This section presents EPA's estimates
of the environmental and human.health
benefits, including pollutant reductions,
that will occur from this rule. Table 7.1
shows the annualized benefits EPA
projects will result from the revised ELG
requirements for Large CAFOs.
(Monetized values for benefits
associated with the revised NPDES
requirements for Small and Medium
CAFOs are not included in the table.)
The total monetized benefits associated
with the ELG requirements for Large
CAFOs range from  $204 to $355 million
annually. The values presented in the
range represent those benefits for which
EPA is able to quantify and determine
an economic value. These benefit value
estimates reflect only those pollutant
reductions and water quality
improvements attributable to Large
CAFOs. EPA also developed estimates
of the pollutant reductions that will
occur due to the revised requirements
for Small and Medium CAFOs, but
analysis of the monetized value of the
associated water quality improvements
was not completed in time for benefits
estimates to be presented here. As
discussed later in this section, EPA has
also identified additional environmental
benefits that will result from this rule
but is unable to attribute a specific
economic value to  these additional
nonmonetized or nonqualified
benefits.
   Detailed information on the estimated
pollutant reductions is provided in the
Technical Development Document,
which is in the docket for today's rule.
EPA's detailed assessment of the
environmental benefits that will be
gained by this rule, as well as the
benefits estimates for other regulatory
options considered during this
rulemaking, is presented in the Benefits
Analysis, which is also available in the
rulemaking docket.
                   TABLE 7.1.—ANNUALIZED'BENEFITS OF ELG REQUIREMENTS FOR LARGE CAFOs
                                                  [Millions of 2001$]
                                 Types of benefits
                                                                                         Total for all CAFOs
 Recreational and non-use benefits from improved water quality in freshwater rivers, streams, and
  lakes.                                    :
 Reduced fish kills 	..)	
 Improved shellfish harvests 	;..	
                                          $166.2 to $298.6.

                                          $0.1.
                                          $0.3 to $3.4.

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            Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations      7235

              TABLE 7.1.—ANNUALIZED BENEFITS OF ELG REQUIREMENTS FOR LARGE CAFOs—Continued
                                                   [Millions of 2001$]
                                  Types of benefits
                                                    Total for all CAFOs
 Reduced nitrate contamination of private wells	
 Reduced eutrophlcation & pathogen contamination of coastal & estuarine waters (Case study of po-
  tential fishing benefits to the Albemarle-Pamlico estuary).
 Reduced public water treatment costs	
 Reduced livestock mortality from nitrate arid pathogen contamination of livestock drinking water	
 Reduced pathogen contamination of private & public underground sources of drinking water	
 Reduced human & ecological risks from antibiotics, hormones, metals, salts  	
 Improved soil properties	
 Reduced cost of commercial fertilizers for non-CAFO operations	
    Total benefits 	
                                           $30.9 to $45.7.
                                           Not monetized [$0.2].

                                           $1.1 to $1.7.
                                           $5.3.
                                           Not monetized.
                                           Not monetized.
                                           Not monetized.
                                           Not monetized.
                                           $204.1 •*• [B] to $355.0 + [B].
  [B] represents non-monetized benefits of the rule.
B. What Pollutants Are Present in
Manure and Other CAPO Wastes, and
How Do They Affect Human Health and
the Environment?
1. What Pollutants Are Present in
Animal Waste?
  The primary pollutants associated
with animal wastes are nutrients
(particularly nitrogen and phosphorus),
organic matter, solids, pathogens, and
odorous/volatile compounds. Animal
waste is also a source of salts and trace
elements and, to a lesser extent,
antibiotics, pesticides, and hormones.
The composition of manure at a
particular operation depends on the
animal species, size, maturity, and
health, as well as on the composition
(e.g., protein content) of animal feed.
The sections below introduce the main
constituents in animal manure and
include information from the National
Water Quality Inventory: 2000 Report
(hereinafter the "2000 Inventory"). This
report is prepared every 2 years under
section 305(b) of the Clean Water Act,
and it summarizes State reports of
impairment to their water bodies and
the suspected sources of those
impairments.
  a. Nutrients. Animal wastes  contain
significant quantities of nutrients,
particularly nitrogen and phosphorus.
The 2000 Inventory lists nutrients as the
leading stressor of impaired lakes,
ponds, and reservoirs. Nutrients are also
ranked as the fifth leading stressor for
impaired rivers and streams, are among
the top 10 stressors of impaired
estuaries, and are the second leading
stressor reported for the Great Lakes.
Manure nitrogen occurs in several
forms, including ammonia and nitrate.
Ammonia and nitrate have fertilizer
value for crop growth, but these forms
of nitrogen can also produce adverse
environmental impacts when they are
transported in excess quantities to the
environment. Ammonia is of
environmental concern because it is
toxic to aquatic life and it exerts a direct
BOD on the receiving water, thereby
reducing dissolved oxygen levels and
the ability of a water body to support
aquatic life. Excessive amounts of
ammonia can lead to eutrophication, or
nutrient overenrichment, of surface
waters. Nitrate is a valuable fertilizer
because it is biologically available to
plants. Excessive levels of nitrate in
drinking water, however, can produce
adverse human health impacts.
  Phosphorus is of concern in surface
waters because it is a nutrient that can
lead to eutrophication and the resulting
adverse impacts—fish kills, reduced
biodiversity, objectionable tastes and
odors, increased drinking water
treatment costs, and growth of toxic
organisms. At concentrations greater
than 1.0 milligrams per liter,
phosphorus can interfere with the
coagulation process in drinking water
treatment plants thus reducing
treatment efficiency.  Phosphorus is of
particular concern in fresh waters,
where plant growth is typically limited
by phosphorus levels. Under high
pollutant loads, however, fresh water
may become nitrogen-limited. Thus,
both nitrogen and phosphorus loads can
contribute to eutrophication.
  b. Organic matter. Livestock manures
contain many carbon-based,
biodegradable compounds. Once these
compounds reach surface water, they
are decomposed by aquatic bacteria and
other microorganisms. During this
process dissolved oxygen is consumed,
which in turn reduces the amount of
oxygen available for aquatic animals.
The 2000 Inventory indicates that low
dissolved oxygen levels caused by
organic enrichment (oxygen-depleting
substances) are the third leading stressor
in impaired estuaries. They are the
fourth greatest stressor in impaired
rivers and streams, and the fifth leading
stressor in impaired lakes, ponds, and
reservoirs. Severe reductions in
dissolved oxygen levels can lead to fish
kills. Even moderate decreases in
oxygen levels can adversely affect water
bodies through decreases in biodiversity
characterized by the loss of fish and
other aquatic animal populations, and a
dominance of species that can tolerate
low levels of dissolved oxygen.
  c. Solids. The 2000 Inventory
indicates that dissolved solids are the
fourth leading stressor in impaired
lakes, ponds, and reservoirs. Solids from
animal manure include the manure
itself and any other elements that have
been mixed with it. These elements can
include spilled feed, bedding and litter
materials, hair, and feathers. In general,
the impacts of solids include increasing
the turbidity of surface waters,
physically hindering the functioning of
aquatic plants  and animals, and
providing a protected environment for
pathogens. Increased turbidity reduces.
penetration of light through the water
column, thereby limiting the growth of
desirable aquatic plants that serve as a
critical habitat for fish, shellfish, and
other aquatic organisms. Solids that
settle out as bottom deposits can alter or
destroy habitat for fish  and benthic
organisms. Solids also provide a ;
medium for the accumulation, transport,
and storage of other pollutants,  i
including nutrients, pathogens, and
trace elements.
  d. Pathogens. Pathogens are defined
as disease-causing microorganisms. A
subset of microorganisms, including
species of bacteria, viruses, and
parasites, can cause sickness and;
disease in humans and are knowri as
human pathogens.  The 2000 Inventory
indicates that pathogens (specifically
bacteria) are the leading stressor in
impaired rivers and streams and the
fourth leading stressor in impaired
estuaries. Livestock manure may
contain a variety of microorganism
species, some of which are human
pathogens. Multiple species of
pathogens can be transmitted directly
from a host animal's manure to surface

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 7236     Federal Register/Vol. 68, No. 29 / Wednesday, February 12, 2003/Rules and Regulations
water, and pathogens already in surface
water can increase in number because of
loadings of animal manure nutrients
and organic matter.
  More than 150 pathogens found in
livestock manure are associated with
risks to humans, including the six
human pathogens that account for more
than 90% of food and waterborne
diseases in humans. These organisms
are: Campylobdcter spp., Salmonella
spp. (non-typhoid), Listeria
monocytogenes, Escherichia coli
O157:H7, Cryptosporidium parvum, and
Giardia lamblia. All'of these organisms
may be rapidly transmitted from one
animal to another in CAFO settings. An
important feature relating to the
potential for disease transmission for
each of these organisms is the relatively
low infectious dose in humans. The
protozoan species Cryptosporidium
parvum and Giardia lamblia are
frequently found in animal manure.
Bacteria such as Escherichia coli
Ol57:H7 and Salmonella spp. are also
often found in livestock manure and
have been associated.with waterborne
disease. The bacteria Listeria
monocytogenes is ubiquitous in nature
and is  commonly found in the intestines
of wild and domestic animals.
  e. Other potential contaminants.
Animal wastes can contain other
chemical constituents that could
adversely affect the environment. These
constituents include salts, trace
elements, and pharmaceuticals,
including antibiotics and hormones.
Although salts are usually present in
waste regardless of animal or feed type,
trace elements and pharmaceuticals are
typically the result of feed additives to
help prevent disease or promote growth.
Accordingly, concentrations of these
constituents vary with operation type
and from facility to facility. The other
constituents present in animal wastes
are summarized below. Additional
information on animal wastes is
presented in the preamble for the
proposed rule (see 66 FR 2976-2979)
and the Technical Development
Document.
  Salts. The salinity of animal manure
is directly related to the presence of
dissolved mineral salts. In particular,
significant concentrations of soluble
salts containing sodium and potassium
remain from undigested feed that passes
unabsorbed through animals. Other
major constituents contributing to
manure salinity are calcium,
magnesium, chloride, sulfate,
bicarbonate, carbonate, and nitrate. Salt
buildup may deteriorate soil structure,
reduce permeability, contaminate
ground water, and reduce crop yields. In
fresh waters, increasing salinity can
disrupt the balance of the ecosystem,
making it difficult for resident species to
remain. Salts may also contribute to
degradation of drinking water supplies.
  Trace elements. The 2000 Inventory
indicates that metals are the leading
stressor in impaired estuaries and the
second leading stressor in impaired
lakes. Trace elements in manure that are
of environmental concern include
arsenic;, copper, selenium, zinc,
cadmium, molybdenum, nickel, lead,
iron, manganese, aluminum, and boron.
Of these, arsenic, copper, selenium, and
zinc arfe often added to animal feed as
growth: stimulants or biocides. Trace
elements can also end up in manure
through use of pesticides, which are
applied to livestock to suppress
houseflies and other pests. Trace
elements have been found in manure
lagoons and in drainage ditches,
agricultural drainage wells, and tile line
inlets and outlets. They have also been
found in rivers adjacent to hog and
cattle operations. Trace elements in
agronomically applied manures are
generally expected to pose little risk to
human! health and the environment.
Howevpr, repeated application of
manures above agronomic rates could
result in cumulative metal loadings to
levels that potentially affect human
health and the environment. There is
some evidence that this is happening.
For example, in 1995, zinc and copper
were found building to potentially
harmful levels on the fields of a hog
farm in North Carolina.
  Antibiotics. Antibiotics are used in
AFOs and can be expected to appear in
animal Iwastes. Antibiotics are used both
to treatjillness and as feed additives to
promote growth or to improve feed
conversion efficiency. Between 60 and
80 percent of all livestock and poultry
receive! antibiotics during their
productive lifespan. The primary
mechanisms of elimination are in urine
and bile, so essentially all of an
antibiotic administered is eventually
excrete jl, whether unchanged or in
metabolite form. Little information is
available regarding the concentrations of
antibiotics in animal wastes, or on their
fate ancl transport in the environment.
One coiicern regarding the widespread
use of antibiotics in animal manure is
the development of antibiotic-resistant
pathogens. Use of antibiotics, especially
broad-sjpectrum antibiotics, in raising
animals is increasing. This could be
contributing to the emergence of more
strains of antibiotic-resistant pathogens,
along with strains that are growing more
resistant.
  Pestitides and hormones. Pesticides
and hormones are compounds used at
AFOs and they can be expected to
appear in animal wastes. These types of
pollutants may be linked with    :
endocrine disruption. The 2000  .
Inventory indicates that pesticides are
the second leading stressor in impaired
estuaries. Pesticides are applied to
livestock to suppress houseflies and
other pests. There has been very little
research on losses of pesticides in runoff
from manured lands. A 1994 study
showed that losses of cyromazine (used
to control flies in poultry litter) iri
runoff increased with the rate of poultry
manure and litter applied and the.
intensity of rainfall. Specific hormones
are used to increase productivity in the
beef and dairy industries. Several
studies have shown hormones are
present in animal manures. Poultry
manure has been shown to contain both
estrogen and testosterone. Runoffifrom
fields with land-applied manure has
been reported to contain estrogens,
estradiol, progesterone, and
testosterone, as well as their synthetic
counterparts. In 1995, an irrigation pond
and three streams in the Conestoga
River watershed near the Chesapeake
Bay had both estrogen and testosterone
present. All of these sites were  affected
by fields receiving poultry litter.

2. How Do These Pollutants Reach
Surface Waters?
  Pollutants in animal waste and
manure can enter the environment
through a number of pathways,
including surface runoff and erosion,
direct discharges to surface water, spills
and other dry-weather discharges,
leaching into soil and ground water, and
volatilization of compounds (e.g.,
ammonia) and subsequent redeposition
to the landscape. These dischargers of
manure pollutants can originate from
animal confinement areas, manure
handling and containment systems,
manure stockpiles, and cropland where
manure is spread.
  Runoff and erosion occur during
rainfall when rainwater fails to be
absorbed into the ground and when the
soil surface is worn away by water or
wind. Runoff of animal wastes is inore
likely when rainfall occurs soon after
application (particularly if the manure
was not injected  or incorporated) and
when manure is overapplied or
misapplied. Erosion can be a significant
transport mechanism for land applied
pollutants, such as phosphorus, that are
strongly bonded to  soils.        '
  Pollutants are directly discharged to
surface water when animals are allowed
access to water bodies and when
manure storage areas overflow. Dry
weather discharges to surface waters
associated with CAFOs have been
reported  to occur through spills or other

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           Federal Register/Vol.  68,  No. 29/Wednesday, February 12, 2003/Rules and  Regulations      7237
accidental discharges from lagoons and
irrigation systems, or through
intentional releases. Other reported
causes of discharge to surface waters are
overflows from containment systems
following rainfall, catastrophic spills
from failure of manure containment
systems, and washouts from floodwaters
when lagoons are sited on floodplains or
from equipment malfunction, such as
pump or irrigation gun failure,  and
breakage of pipes or retaining walls.
  It is xvell established that in many
agricultural areas shallow ground water
can become contaminated with manure
pollutants. This occurs as a result of
water traveling through the soil to the
ground water and taking with it
pollutants such as nitrate from livestock
and poultry wastes on the surface.
Leaking lagoons are also a potential
source of manure pollutants in ground
water, based on findings reported in the
scientific and technical literature.
  Pollutants from CAFO wastes are
released to air through volatilization of
manure constituents and the products of
manure decomposition. Other ways that
manure pollutants can enter the air is
from spray irrigation systems and as
wind-borne participates in dust. Once
airborne, these pollutants can find their
way into nearby streams, rivers, and
lakes as they are subsequently
rcdeposited on the landscape. More
detailed information on the transport of
animal wastes is presented in the
Benefits Analysis and the record.
3. How Is Water Quality Impaired by
Animal Wastes?
  EPA has made significant progress in
implementing Clean Water Act
programs and in reducing water
pollution. Despite such progress,
however, serious water quality problems
persist throughout the country. Sources
of information on these problems
include reports from States to EPA,
documented in the 2000 Inventory, and
the U.S. Geological Survey's National
Water Quality Assessment (NAWQA)
Program.
  o. EPA's national water quality
inventory. Agricultural operations,
including CAFOs, are a significant
contributor to the remaining water
pollution problems in the United States,
as reported by the 2000 Inventory. EPA's
2000 Inventory data indicate that the
agricultural sector—including  crop
production, pasture and range  grazing,
concentrated and confined animal
feeding operations,  and aquaculture—is
the leading contributor to identified
water quality impairments in the
nation's rivers and streams, lakes,
ponds, and reservoirs. Agriculture is
also identified as the fifth leading
contributor to identified water quality
impairments in the nation's estuaries.
While the 2000 Inventory does not
generally separate effects of CAFOs from
agriculture generally, EPA's data
indicate that water quality concerns
tend to be greatest in regions where
crops are intensively cultivated and
where livestock, operations are
concentrated.
  The 2000 Inventory data indicate that
the agricultural sector contributes to the
impairment of at least 129,000 river
miles, 3.2 million lake acres, and more
than 2,800 estuarine square miles.
Forty-eight States and tribes identified
agricultural sector activities
contributing to water quality impacts on
rivers; 40 States identified such impacts
to lakes, ponds, and reservoirs; and 14
States reported such impacts on
estuaries. AFOs are only a subset of the
agriculture category, but 29 States
specifically identified them as
contributing to water quality
impairment.
  The leading pollutants impairing
surface water quality in the United
States as identified in the 2000
Inventory data include nutrients,
pathogens, sediment/siltation, and
oxygen-depleting substances. These
pollutants can originate from various
sources, including the animal
production industry. Animal production
facilities may also discharge other
pollutants, such as metals and
pesticides, and can contribute to the
growth of noxious aquatic plants due to
the discharge of excess nutrients.
  These data provide a general
indication of national surface water
quality, highlighting the magnitude of
water quality impairment from
agriculture and the relative contribution
compared to other sources. Moreover,
the findings of this report are
corroborated by numerous reports and
studies conducted by government and
independent researchers that identify
agriculture's predominance as an
important contributor of surface water
pollution, as summarized in the
Environmental Assessment of Revisions
to the National Pollutant Discharge
Elimination System Regulation and the
Effluent Guidelines for Concentrated
Animal Feeding Operations, which is
available in EPA's rulemaking record.
  b. Other documented impacts on
water quality. Data collected by
NAWQA also identify agriculture
among the leading contributor of
nutrients to U.S. watersheds. A national
water quality assessment program
conducted by the U.S. Geologic Survey
found that agricultural use of fertilizers,
manure, and pesticides has degraded
stream and shallpw ground water
quality in agricultural areas and has
resulted in high concentrations of
nitrogen. Subsequent measurements in
specific major river basins suggest that
animal feeding operations may play a
significant role in observed water:
quality degradation in those basins (e.g.,
Kalkhoff et al, 2000; Groschen etal.,
2000). Finally, a 1997 study by Smith et
al. characterizing spatial and temporal
patterns in water quality identified
animal waste as a significant source of
in-stream nutrient concentrations: in
many watershed outlets, relative to
other local sources, particularly in the
central and eastern United States. The
findings of this report suggest that
livestock waste contributes more than.
commercial fertilizer use to local total
phosphorus yield, whereas the use of
commercial fertilizer is the leading
source of local total nitrogen yield.
  Numerous local, regional, and
national evaluations also indicate that
animal manure can be a significant
source of pollutants that contribute to
water quality degradation. A literature
survey conducted for the proposed rule
identified more than 150 reports of
discharges to surface waters from;hog,
poultry, dairy, and cattle operations.
Over 30 separate incidents of discharges
from swine operations between the
years 1992 and 1997 in Iowa alone were
reported by that State's Department of
'Natural Resources. The incidents;
resulted in fish kills ranging from about
500 to more than 500,000 fish killed per
event. Fish kills or other environmental
impacts have also been reported by
agencies in other States, including
Nebraska, Maryland, Ohio, Michigan,
and North Carolina.
  Runoff of nutrients and other
contaminants in animal manure and
wastewater also contributes to
degradation of U.S. waters. For example,
nutrients originating from livestock and
poultry operations in the Mississippi
River Basin have been identified as
contributing to the largest hypoxi'c zone
in U.S. coastal waters in the northern
Gulf of Mexico. (Hypoxia is the
condition in which dissolved oxygen is
below the level necessary to sustain
most animal life.) According to a report
conducted by the National Science and
Technology Council in 2000, adverse
impacts of eutrophication might be of
concern for ecologically and
commercially important species in the
Gulf, whose fishery resources generate
$2.8 billion annually. Animal manure
also contributes to eutrophication, or
nutrient overenrichment, which is also
a serious concern for the Nation's.
coastal and estuarine resources.
  More detailed information is
presented in  the 2001 proposal (66 FR

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7238      Federal Register/Vol.  68,  No. 29/Wednesday, February 12, 2003/Rules and  Regulations
2972-2974) and in the record for this
rulemaking.

4. What Ecological and Human Health
Impacts Have Been Caused by CAFO
Wastes?
  Among the reported environmental
problems associated with animal
manure are surface and ground water
quality degradation, adverse effects on
estuarine water quality and resources in
coastal areas, and effects on soil and air
quality. The scientific literature, which
spans more than 30 years, documents
how these problems can contribute to
increased risk to aquatic and wildlife
ecosystems, for example,  the large
number of fish kills in recent years.
Human health might also be affected, for
example, by high nitrate levels in
drinking water and exposure to
waterborne human pathogens and other
pollutants in manure. The record for
this rule provides more detailed
information on the scientific and
technical research to support these
findings.
  a. Ecological impacts. Manure
pollutants in surface waters contribute
to eutrophication, the disruption of a
water body due to overenrichment.
Eutrophication is the most documented
impact of nutrient pollution and is a
serious concern for coastal and
estuarine resources. Another negative
impact generated by excess nutrients in
surface water is algae blooms, which
also result from overenrichment from
nutrients. Such blooms depress oxygen
levels and contribute further to
eutrophication. Many lake and coastal
problems are linked to eutrophication,
including red tides, fish kills, outbreaks
of shellfish poisonings, loss of habitat,
coralreef destruction, andhypoxia.
  Many  of the constituents in manure,
especially organic matter, also decrease
the oxygen concentrations in surface
waters, sometimes below the levels fish
and invertebrates require to survive.
Nitrites and pathogens in manure can
also pose risks to aquatic life. If
sediments are enriched by nutrients, the
concentrations of nitrites in the
overlying water may be raised enough to
cause nitrite poisoning in fish. There is
substantial information in the record for
this rule that describes local, regional,
and national evaluations indicating that
animal manure is a significant source of
pollutants that contribute to water
quality degradation. Many of these
evaluations note a high incidence of fish
kills. EPA's analysis shows that between
 1981 and 1999,19 States reported 4
million fish killed from both runoff and
spills at CAFOs.
   In addition, excess nitrogen can
 contribute to water quality decline by
increasing the acidity of surface waters.
Pathogens can accumulate in fish and
shellfish, resulting in a pathway for
transmission to higher trophic
organisms; they can also contribute to
avian botulism and avian cholera.
Additional information on fish kills and
other adverse impacts is presented in
the 2001 proposal (66 FR 2972-2974)
and in the record for this rulemaking.
  b. Human health impacts from
affected drinking water. Pollution
originating from an animal production
facility can have multiple impacts on
drinking water. Nitrogen in manure is
easily transformed into the nitrate form,
which can be transported to drinking
water sources and present a range of
health risks. These health risks include
methemoglobinemia in infants,
spontaneous abortions, and increased
incidence of stomach and esophageal
cancers^ Nitrate is not removed by
conventional drinking water treatment
processes but requires additional,
relatively expensive treatment units.
California's Chino Basin estimates a cost
of morejthan $1 million per year to
remove jnitrates from drinking water due
to loadings from local dairies. Generally,
people drawing water from domestic
wells are at greater risk of nitrate
poisoning than those drawing from
public water sources, because domestic
wells are typically shallower and not
subject to wellhead protection
monitoring or treatment requirements.
   Salts in animal wastes can also pose
a health hazard. At low levels, salts can
increase blood pressure in salt-sensitive
individuals, increasing their risk of
stroke and heart attacks. The salt load
into the Chino Basin from local dairies
is more than 1,500 tons per year,  which
costs the drinking water treatment
system between $320 and $690 per ton
to remoye.
   To the extent that nutrients contribute
to algad blooms in surface water through
accelerated eutrophication, algae can
affect drinking Water by clogging
treatment plant intakes, producing
objectionable tastes and odors, and
increasing production of harmful
chlorinated by-products (e.g.,
trihalomethanes) by reacting with
chlorin^ used to disinfect drinking
water. In Wisconsin, the City of
Oshkosjht has spent an extra $30,000 per
year on1 copper sulfate treatment  to kill
the alga|e in the waters from Lake
Winnebago, which is attributed to
excess nutrients from animal manure,
commercial fertilizers, and soil. In
Tulsa, Oklahoma, excessive algae
growth in Lake Eucha, associated with
poultry farming, costs the city $100,000
per year to address taste and odor
problems in the drinking water.
  c. Other human health impacts. In
addition to threats to human health
through drinking water exposures,
pathogens from animal manure can also
threaten human health through shellfish
consumption and recreational contact
such as swimming in contaminated
waters. Relatively low-dose exposures to
Cryptosporidium parvum and Giardia
spp. can cause infection in humans.
Other bacteria found in livestock;
manure have also been associated with
waterborne disease. Pathogens from
animal wastes can readily enter water
sources, resulting in contamination of
surface waters.  Some pathogens are able
to survive and remain infectious in the
environment for relatively long periods
of time. U.S. federal agencies and: other
independent researchers have    :
recognized the potential public health
risks from pathogens originating from
CAFOs. At this time, however, the
magnitude of the human health risk
from pathogenic organisms that directly
originate from CAFOs and are
transported through U.S. waters has not
been established.                l
   According to a United Nations report,
the use of antibiotics in food-producing
animals has the potential to affect
human health because of the presence of
drug residues in foods and also because
of the selection of resistant bacteria in
animals. However, the impact of ;
antimicrobial metabolic products-and
nonmetabolized drugs in animal Wastes
that are released into the  environment
remains unclear. The emergence of
resistant bacteria is of particular
concern because such infections are
more difficult to treat and require drugs
that are often less readily available,
more expensive, and more toxic. In the
U.S., pilot studies coordinated by EPA,
USDA, and the Centers for Disease
Control have been initiated to assess the
extent of environmental contamination
by antimicrobial drug residues and
drug-resistant organisms  that enter the
soil or water from human and animal
waste.
C. How Will Water Quality and Human
Health Be Improved by This Rule?

1. What Reductions in Pollutant
Discharges Will Result From This. Rule?
   EPA's pollutant reductions for this
rule focus to a large degree on
estimating the amount of pollutants in
the runoff from land where manure has
been applied. These estimates of ;
pollutant discharges, referred to as the
"edge-of-field" loadings, were made for
nutrients, metals, pathogens, and
sediment for both pre-rule conditions
 [baseline) and post-rule conditions. The
reductions in pollutant discharges were

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           Federal Register/Vol. 68, No. 29/Wednesday, February  12, 2003/Rules and Regulations     7239
estimated using an environmental
model (Groundwater Loading Effects of
Agricultural Management Systems, or
GLEAMS) that simulates hydrologic
transport, erosion, and biochemical
processes such, as chemical
transformation and plant uptake. The
GLEAMS model uses information on
soil characteristics and climate, along
with characteristics of the applied
manure and commercial fertilizers, to
model losses of nutrients, metals,
pathogens, and sediment in surface
runoff, sediment, and ground water
leachate. EPA's analysis also developed
estimates of changes in pollutant
discharges occurring at the production
area.
  The pollutant reduction estimates
were developed for each type of model
farm included in EPA's cost models.
The model farms were developed to
represent the various animal types, farm
sizes, and geographic regions. Model
farms were developed for each animal
type across a range of size classes, and
model farms were located in each
geographic region. The pollutant
estimates for the model farms were
combined with published data from
USDA's 1997 Census of Agriculture and
then refined into national, regional,
State, and county level pollutant
loading estimates that were used to
determine in-stream surface water and
ground water concentrations. These
values were then used in the water
quality models and other environmental
benefits assessment models to estimate
the human health and environmental
benefits accruing from this rule. ;
  EPA quantified the reduction of
nitrogen and phosphorus loads  .
associated with this rule. Reductions of
discharges of the metals zinc, copper,
cadmium, nickel, lead, and arsenic were
also analyzed for the final  rule. Fecal
coliform and fecal streptococcus were
used as surrogates to estimate pathogen
reductions that would be achieved by
this rule. Other pathogens  would likely
be reduced to a similar degree. Ta'ble.7.2
presents the pollutant reductions
expected to result from this rule.
                 TABLE 7.2.—POLLUTANT REDUCTIONS: COMBINED TOTAL FOR ALL ANIMAL SECTORS
Parameter
Large CAFOs:
Nutrients (million Ib) 	
Metals (million Ib) 	
Pathogens (1019 cfu) 	
Sediment (million Ib) . 	
Medium CAFOs:
Nutrients (million Ib) 	
Metals (million Ib) 	
' Pathogens (101B cfu) 	
Sediment (million Ib) 	
Baseline pol-
lutant loading
(Pre-
regulation)
658
20
5,784
35,493
65
2.0
1,456
3,119
Post-regulation
pollutant
loading
503
19
3,129
33,434
54
1.9
779
3,015
Pollutant
reduction
155 (24%)
1 (5%)
2,655 (46%)
2,059 (6%)
11 (17%)
0.1 (5%)
677 (46%)
104 (3%)
2. Approach for Determining the
Benefits of This Rule
  EPA has analyzed the water quality
improvements expected to result from
the new requirements being
promulgated today and has estimated
the environmental and human health
benefits of the pollutant reductions that
will result. The benefits described in
this section are primarily associated
with direct improvements in water
quality (both surface water and ground
water), but this new rule will also create
certain non-water quality environmental
effects, such as improved soil
conditions, changes in energy
consumption, and changes in emissions
of air pollutants.
  For this rule, EPA conducted seven
benefit studies to estimate the impacts
of reductions in pollutant discharges
from CAFOs. The first study used a
national water quality model (National
Water Pollution Control Assessment
Model, or NWPCAM) that estimates
runoff from land application areas to
rivers, streams, and, to a lesser extent,
lakes in the U.S. This study estimated
the value society places on
improvements in surface water quality
associated with today's rule. The second
study examined the expected
improvements in shellfish harvesting
resulting from the new CAFO rule. A
third study looked at incidences of fish
kills that are attributed to AFOs and
estimated the cost of replacing the lost
fish stocks. The fourth study estimated
the benefits associated with reduced ,
ground water contamination. Reduced
public water treatment costs were
evaluated in the fifth study, and
reduced livestock mortality from nitrate
and pathogen contamination of
livestock drinking water was evaluated
in the sixth study. In the seventh study,
a case study of potential fishing benefits
for the Albemarle-Pamlico estuary is
presented to provide some insight to the
potential benefits for estuaries and
coastal waters. Each of the seven
studies, as well as benefits results, are
briefly described in the following
sections. Benefits results associated
with reduced pollutant discharges from
Large CAFOs are also summarized in
Table 7.1. The benefit value estimates
presented in this section reflect only
those pollutant reductions and water
quality improvements attributable to
Large CAFOs. EPA also developed
estimates of the pollutant reductions
that will occur due to the revised
requirements for Small and Medium
CAFOs, but analysis of the monetized
value of the associated water quality
improvements was not completed in
time for benefits estimates to be
presented here.
  In this analysis, EPA estimates the
effect of pollutant reductions and other
environmental improvements on human
health and the ecosystem and assigns a
monetary value to these benefits to the
extent possible. In some cases, EPA was
able to identify certain types of
improvements that will result from this
rule, but was unable to either estimate
the monetary value of the improvement
or quantify the amount of improvement
that will occur. These non-monetized
and non-quantified benefits are
included in the discussion below; Given
the limitations in assigning monetary
values to some of the improvements, the
economic benefit values described
below and in the Benefits Analysis
should be considered a subset of the
total benefits of this rule. These
monetized benefits should be evaluated
along with descriptive qualitative
assessments of the non-monetized
benefits. For example, the economic
valuation used for this rule assigns
monetary values to the water quality
improvements due to reductions of the

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 7240     Federal Register/Vol.  68, No. 29/Wednesday, February  12,  2003/Rules and Regulations
most significant pollutants originating
from CAFOs (e.g., nitrogen, phosphorus,
pathogens, and sediment), but it does
not include values for potential water
quality improvements expected due to
reduced discharges of certain other
pollutants discharged in lesser amounts,
such as metals or hormones.
  Research documented in the record
and summarized in the Benefits
Analysis shows that CAFO wastes may
affect the environment and human
health in a variety of ways beyond those
for which benefits have been monetized.
The following are examples of other
types of potential impacts or potential
benefits:
  • Human health and ecological effects
of metals, antibiotics, hormones, salts,
and other pollutants associated with
CAFO manure;
  • Eutrophication of coastal and
estuarine waters due to both nutrients in
runoff and deposition of ammonia
volatilized from CAFOs.
  • Reduced human illness due to
pathogen exposure during recreational
activities in estuaries and coastal
waters.
  • Improvements to soil properties due
to reduced overapplication of manure,
together with increased acreage
receiving manure applications at
agronomic rates.
  • Reduced pathogen contamination in
private drinking water wells.
  • Reduced cost of commercial
fertilizers for non-CAFO operations.
  EPA's Benefits Analysis does not
include monetary values for these other
areas of environmental improvements
because data limitations preclude
quantifiable estimates of the magnitude
of improvement or it is difficult to
ascribe an economic value to these
benefits. Nevertheless, these
environmental benefits may result in
improved ecological conditions and
reduced risk to human health.

3. Benefits From Improved Surface
Water Quality
  a. Freshwater recreational benefits.
EPA used NWPCAM to  estimate the
national economic benefits to surface
water quality that will result as CAFOs
implement the requirements of this rule."
NWPCAM is a national-scale water
quality model that simulates the water
quality and benefits for various water
pollution control approaches. NWPCAM
is designed to characterize water quality
for the Nation's network of rivers and
streams, and, to a more limited extent,
its lakes.  NWPCAM can translate
spatially varying water quality changes
(improvements or degradation) resulting
from different pollution control policies
into terms that reflect the value
individuals place on water quality
improvejtnents. In this way, NWPCAM is
able to derive the economic benefit of
the water quality improvements that
will result from reducing CAFO
discharges.
  For this rale, EPA used NWPCAM to
simulate impacts due to reductions in
pollutant loadings from Large CAFOs
(nitrogen, phosphorus, pathogen
indicators, BODS, and TSS) on water
quality ih the Nation's surface waters.
NWPCAM's national-scale framework
allows hydraulic transport, routing, and
connectivity of surface waters to be
simulated for the entire continental
United States with the exception of
coastal and estuarine waters. Pollutant
loadings from the CAFOs were used as
inputs to NWPCAM. The CAFO
loadings1 were processed through the
NWPCAM water quality modeling
system to estimate in-stream pollutant
concentrations on a detailed spatial
scale to provide estimates of changes in
water quality that will result  as CAFOs
implement this new rule. The
NWPCAM modeling output, simulating
the improved water quality in the
Nation's: surface waters, was used as the
basis fori monetizing improvements to
water quality, and as input to several of
the other benefits analyses described
later in this section.
  The mbnetary value of the benefits
associated with the changes in water
quality are estimated using two
valuation techniques. The first
technique relates water quality changes
to changes in the category of use the
water quality can support (e.g., beatable
uses versus fishable uses, or fishable
uses versus swimmable uses), also
referred to as the "water quality ladder"
approach, and also  considers the size of
population benefitting from the changes
in the types of use the water quality can
support. jThe second method  is similar
to the first, but it uses a composite
measure | of water quality that is
calculated from six water quality
parameters (referred to as the "water
quality index" approach). A key
difference in the two approaches is that
the water quality ladder approach
assesses ^improvements using a step-
function that attributes a monetary
value to the water quality improvement
only when changing from one use
category to another (e.g., a change from
boatableluse to fishable use), while the
water quality index method assigns
values along a continuum of water
quality improvement (e.g., the water use
may remain designated as "boatable
use," but improvements within that use
category jare assigned a monetary value).
For both ;valuation approaches, the
monetary value assigned to the benefits
is based on what the public is willing
to pay for improvements to water:
quality.
  Based on the NWPCAM analysis
using.the water quality ladder approach,
the benefits of improved surface water
quality resulting from reduced pollutant
discharges from Large CAFOs are
estimated to be $166 million annually
(2001 dollars). Using the water quality
index approach, the benefits of
improved surface water quality are
estimated at $298 million annually
(2001 dollars).
  b. Shellfish beds. Pathogen
contamination of coastal waters i§ a
leading cause of shellfish bed harvest
restrictions and closures. Sources: of
pathogens include runoff from
agricultural land and activities. Using
The 1995 National Shellfish Register of
Classified Growing Waters published by
the National Oceanic and Atmospheric
Administration, EPA estimated the
improvements to shellfish bed
harvesting that will result as CAFO
discharges of pathogens are reduced by
this rule. These data were used to:
determine the average per-acre yield of
shellfish from harvested waters and to
estimate the area of shellfish-growing
waters that are currently unharvested as
a result of pollution from AFOs. By
combining the per-acre yield data; with
estimates of the acreage of currently
unharvested shellfish beds that will
become available for harvesting as
discharges of pathogens from Large
CAFOs are reduced, EPA calculates  the
value of improved shellfish harvests at
$0.3 to $3.4 million annually.
  c. Fish kills. Episodic fish kill events
resulting from spills, manure runoff,
and other discharges of manure from
AFOs continue to remain a serious
problem in the United States. The
impacts from these incidents range from
immediate and dramatic kill events to
less dramatic but more widespread
events. Manure dumped into and! along
the West Branch of the Pecatonica River
in Wisconsin resulted in a complete kill
of smallmouth bass, catfish, forage fish,
and all but the hardiest insects in a 13-
mile stretch of the river. Less
immediate, but equally important,
catastrophic impacts on water quality
from manure runoff are increased algae
growth or algae blooms, which remove
oxygen from the water and can result in
the death of fish.  Manure runoff into a
shallow lake in Arkansas resulted in a
heavy algae bloom that depleted the
lake of oxygen, killing many fish..
  While the modeled estimates of
surface water quality improvements
have been used to monetize benefits
associated with freshwater bodies, water
quality modeling (i.e., NWPCAM) does

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           Federal  Register/Vol. 68, No. 29/Wednesday,  February  12,  2003/Rules and Regulations      7241
not include estuaries, coastal areas or
other marine water bodies, and fish kills
are noted to occur in these areas as well.
Parts of the Eastern Shore of the United
States have been plagued with problems
related to Pfiesteria, a dinoflagellate
algae that exist in rivers at all times, but
is Known to cause fish Mils in estuarine
and coastal environments under certain
conditions. Fish attacked by Pfiesteria
have lesions or large, gaping holes on
them as their skin tissue is broken
down; the lesions often result in death.
The  conditions under which Pfiesteria
can harm fish are believed to be related
to high levels of nutrients. Fish kills
related to Pfiesteria in the Neuse River
in North Carolina have been blamed  on
the booming hog industry and the
associated waste spills and runoff from
the hog farms. Preliminary evidence
suggests that human health problems
might also be associated with exposure
to Pfiesteria. As a result, people most
likely would limit or avoid recreational
activities in coastal waters with
P/resteria-related fish kills. The town of
New Bern, a popular summer vacation
spot along the Neuse River in North
Carolina, experienced several major  fish
kills in the summer of 1995. During this
event, people became ill after swimming
and fishing in the impacted areas, and
there were reports that people
swimming in the waters reported welts
and sores on their bodies. Summer
camps canceled boating classes,
children were urged to stay out of the
water, and warnings were issued about
swimming and eating fish that were
diseased. Many blame the heavy
rainfall, which pumped pollutants from
overflowing sewage plants and hog
lagoons into the river, creating algae
blooms, low oxygen, and Pfiesteria
outbreaks as the cause of the fish kills.
   EPA obtained reports on fish kill
events in the United States, with data
for nineteen States showing historical
and current fish kills. Using these data,
EPA estimates the benefits of reducing
fish kills through implementation of the
ELG requirements in today's rule for
Large CAFOs at 50.1 million annually.
   a. Reduced public water treatment
costs. Total suspended solids (TSS)
entering the surface waters from CAFOs
can hinder effective drinking water
treatment by interfering with
coagulation, filtration, and disinfection
processes. EPA used the NWPCAM
model to predict how pollutant
reductions from Large CAFOs would
affect the ambient concentration of TSS
in the source waters of public water
supply systems. To measure the value of
reductions in TSS concentrations, EPA
estimated the extent to which lower TSS
concentrations reduce the operation and
maintenance (O&M) costs associated
with the conventional treatment
technique of gravity filtration. EPA
estimates reduced drinking water
treatment costs of $1.1 to $1.7 million
annually due to reduced discharges of
pollutants at Large CAFOs.
4. Benefits From Improved Ground
Water Quality
  a. Human health benefits. CAFO
wastes can contaminate ground water
and thereby cause health risks and
welfare losses to people relying on
ground water sources for their potable
supplies or other uses. Of particular
concern are nitrogen and other
constituents that leach through the soils
and the unsaturated zone and ultimately
reach ground waters. Nitrogen loadings
convert to elevated nitrate
concentrations at household and
community system wells, and elevated
nitrate levels in turn pose a risk to
human health  in households with
private wells. (Nitrate levels in
community wells are regulated to
protect human health.)
  This rule is expected to reduce nitrate
levels in private drinking weUs by
reducing the rate at which manure is
spread on cropland, thus reducing the
rate at which pollutants will leach
through soils and reach ground water.
The federal health-based National
Primary Drinking Water Standard for
nitrate is 10 milligrams per liter (mg/L),
and this Maximum Contaminant Level
(MCL) applies to all community water  -
supply systems. Households relying on
private wells are not subject to the
federal MCL for nitrate, but levels above
10 mg/L are considered unsafe for
sensitive subpopulations (e.g., infants).
Several economic studies indicate a
considerable willingness-to-pay by
households to reduce the likelihood of
nitrate levels exceeding 10 mg/L, and to
reduce nitrate levels, even when baseline
concentrations are considerably below
the MCL.
   EPA used U.S. Geological Survey data
on nitrate levels in wells throughout the
country to predict how nitrate
concentrations in private drinking wells
would be reduced by this rule. Based on
these data, EPA estimates that 9.2
percent of households that currently
rely on private wells with nitrate
concentrations exceeding the MCL will
have these concentrations reduced to
levels below the MCL because of the
ELG requirements for Large CAFOs.
EPA estimates the value of these
reductions based on willingness-to-pay
studies to be $583 annually per
household (2001$) resulting in benefit
 estimates of $30.2 to $44.6 million
nationally on  an annual basis for this
component of ground water
improvements. Another 5.8 million
households that currently have nitrate
levels in their private wells below the
MCL will experience further reductions
in nitrate levels because of the ELG
requirements for Large CAFOs. Studies
also show that people are willing jto pay
$2.09 per mg/L reduced annually
(2001$) to get these additional
reductions once they are already below
the MCL for nitrate. This gives benefits
estimates of $0.7 million to $1.1 million
annually for the nation for this
component of ground water
improvements. The total benefits of
reduced nitrate contamination of private
drinking wells as a result of reducing
pollutant discharges at Large CAFOs are
estimated to range from approximately
$30.9 to $45.7 million annually (2001$).
  Research documented in the record
and summarized in the Benefits
Analysis shows that CAFO wastes  affect
the environment and human health in
ways beyond those for which benefits
have been monetized. Additional
ground water benefits that may result
from this rule include reduced pathogen
contamination of private drinking  water
wells and community drinking water
supplies. EPA's Benefits Analysis, does
not include monetary values for these
additional ground water improvements
because data limitations preclude
quantifiable estimates of the magnitude
of improvement or because it is difficult
to ascribe an economic value to these
benefits. EPA also recognizes that CAFO
operators have strong private incentives
to avoid contaminating their own;
private drinking water sources.
  b. Animal health benefits. Land
application of manure can result in
leaching of nitrates and enteric
pathogens to ground water, which in
many cases is used as the source of
drinking water for livestock in rural
communities. Excessive nitrate in
livestock watering sources, particularly
in conjunction with feeds containing
nitrogen such as alfalfa,  can contribute
to increased morbidity and mortality
due to acute and chronic nitrate
poisoning in cattle which would have
the ability to convert nitrate to toxic
nitrite. In addition, studies have found
that nearly 20% of rural water wells are
contaminated with enteric pathogens
such as fecal coliform and fecal
streptococcus, common  indicators of
enteric pathogens, at ratios which
suggest the source of contamination may
be animal waste. Consumption of; water
by livestock contaminated with enteric
pathogens could result in increased
morbidity and mortality due to
waterborne illness, particularly
gastrointestinal disorders.

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  7242     Federal Register/Vol.  68, No. 29/Wednesday, February 12, 2003/Rules  and Regulations
    EPA used data from scientific
  literature, USDA data on beef and dairy-
  mortality from poisoning and
  gastrointestinal illness, EPA data on
  rural ground-water quality, and
  published recommendations for
  livestock drinking water quality, to
  estimate the potential to reduce on-farm
  beef and dairy cattle mortality
  associated with pathogens and nitrates
  in ground water. From this, EPA
  estimated the avoided cost of replacing
  cattle mortalities. The ELG requirements
  are expected to reduce nitrate and
  pathogen contamination of ground
  water at Large CAFOs and, as a result,
  reduce annual cattle mortality from
  nitrate poisoning and pathogens at Large
  CAFOs by approximately 4,300 mature
  cattle and 3,900 calves. Using a
  replacement value of $1,185 for mature
  cattle and $54 for day-old calves (2002
  dollars), the monetary benefit of
  reduced on-farm beef and dairy cattle
  mortality at Large CAFOs is estimated at
  $5.3 million annually.

  D. Other (Non-Water Quality)
  Environmental Impacts and Benefits
   In analyzing the effects of this rule,
  EPA also considered how the
  requirements promulgated today would
  affect the amount and form of
  compounds released to air, as well as
 the energy that is required to operate the
 CAFO. In addition to the water quality
 impacts and benefits discussed above,
 EPA's analyses for this rule have also
 evaluated these other types of
 environmental impacts, often referred to
 as non-water quality environmental
 impacts. These non-water quality
 environmental impacts include changes
 in air emissions from CAFO production
 areas and land where CAFO-generated
 manure is spread, changes in energy
 use, and improvements in soil
 properties. EPA's estimates of changes
 in air emissions and energy use are
 described in more detail in the
 Technical Development Document.
   To assess the potential changes in air
 emissions resulting from this rule, EPA
 quantified the releases from the
 production area, including  animal
 housing and animal waste storage and
 treatment areas; land application
 activities; and emissions from vehicles,
 including the off-site transport of waste
 and on-site composting operations.
.   EPA projects increased emissions of
 criteria air pollutants (particulate
 matter, volatile organic compounds,
 nitrogen oxides, and carbon monoxide)
 related to increased fuel consumption as
 excess manure is  transported away from
 the CAFO. The'contribution of these
 projected increases is limited compared
 to the national criteria pollutant
 inventory ^ For example, for the year
 2000, the total national inventory for
 nitrogen oxides was 25 million tons.
 The contribution of the projected
 increase in CAFO emissions of nitrogen
 oxides is less than 0.01 percent of that
 amount. The national inventory values
 for other criteria pollutants are also
 much larger than the projected changes
 in emissions from CAFOs.
   CAFOs are a source of ammonia,
 which is a' contributor to the formation
 of fine particulate matter. This rule is
 not expected to significantly alter
 ammonia ^missions from CAFOs.
 During the rulemaking, EPA evaluated a
 number of regulatory options and, as
 part of those analyses, considered the
 potential air quality benefits associated
 with changes in ammonia emissions. •
 For further discussion of those analyses,
 refer to Chapter 13 of the Technical
 Development Document and Section 22
 of the rulemaking record.
   CAFOs are also a source of hydrogen
 sulfide emissions. EPA's calculations
 indicate that today's rule will reduce
 hydrogen $ulfide  emissions from Large
 CAFOs by ,12 percent nationally.
 Reductions in hydrogen sulfide
 emissions are expected to lead to human
 health benefits, but EPA has not been
 able to calculate the economic value of
 these reductions.
   Finally, CAFOs are a source of
 greenhouse gases. Emissions of nitrous
 oxide at CAFOs arise mainly from the
 feedlot area during denitrification of
 nitrogen compounds during waste
 storage on the drylot and from fields
 where animal wastes are land applied.
 Emissions !of methane also mainly arise
 during waste storage, created during the
 anaerobic decomposition of carbon
 compounds. CAFOs currently
 contribute Approximately 3 percent of
 all U.S. nitrous oxide emissions and a
 similar percentage of U.S. methane
 emissions. EPA estimates that emissions
 of nitrous oxide at Large CAFOs will
 increase by 4 percent as the
 requirements  of today's rule are
 implemented, and emissions  of methane
 will decrease by 11 percent.
  EPA also expects that the properties
 of the soil at a number of land
 application areas might improve
because of reduced overapplication of
manure. The soil properties of cropland
that does not currently receive manure,
but becomes a recipient as additional
manure is hauled away from CAFOs
that have excess manure are also
expected to benefit from the organic
matter content (improving tilth) and the
micronutri^nts present in manure.
 VIII. Costs and Economic Impacts

   This section presents EPA's estimate
 of the total annual costs and the
 economic impacts that would be
 incurred by the livestock and poultry
 industry as a result of today's rule. This
 section also discusses EPA's estimated
 effects on small businesses and presents
 the results of the Agency's cost-  ;
 effectiveness and cost-benefit analysis.
 All costs presented in this section are
 reported in pre-tax 2001 dollars (unless
 otherwise indicated).
   EPA estimates the total monetized
 social costs of the final regulations at
 about $335 million annually. Theise
 costs include compliance costs borne by
 CAFOs and also administrative costs to
 federal and State governments. EPA
 estimates the total compliance cost for
 Large CAFOs at $283 million per year
 (pre-tax, $2001). Costs to Medium
 CAFOs are estimated at $39 million per
 year. Costs to Medium and Small
 operations that are designated as CAFOs
 are estimated at $4 million per year.
 EPA estimates that the administrative
 cost to federal and State governments to
 implement this rule is $9 million jper
 year.
   For the veal, dairy, turkey, and egg
 laying sectors, the final regulations are
 not expected to result in any CAFO
 level business closures. In the beef
 cattle, heifer, hog, and broiler sectors,
 however, the final rale is expected to
 cause some existing CAFOs to
 experience financial stress. These
 operations might be vulnerable to
 closure as a result of complying with the
 final regulations. Across all sectors, an
 estimated 285 existing Large CAFOs
 might be vulnerable to facility closure.
 This accounts for approximately 3
 percent of all Large CAFOs. By seccor,
 EPA estimates that 49 beef operations (3
 percent of affected beef CAFOs), 22
 heifer operations (9 percent), 204'hog
 operations (5 percent of affected hog
 CAFOs), and 10 broiler operations (1
 percent) might close as a result of
 complying with the final regulations.
 These results are based on an analysis
 that does not consider the longer-term
 effects on market adjustment and also
 available cost share assistance from
 federal and State governments.
  Detailed information on estimated
 compliance costs are provided in the
 Technical Development Document and
 the Cost Support Document, which are
 in the administrative record for today's
rule. EPA's detailed economic
 assessment can be found in Economic
Analysis which is also in the
administrative record.

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           Federal  Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations     7243
A. Costs of the Final Rule

1. Method for Estimating the Costs of
This Rule
  For the purpose of estimating the total
costs and economic impacts CAFOs will
boar in complying with this rule, EPA
estimated costs associated with four
broad cost components: nutrient
management planning, facility
upgrades, land application, and
technologies for balancing on-farm
nutrients. Nutrient management
planning costs include manure and soil
testing, record-keeping, and plan
development. Facility upgrades reflect
costs for additional or improved manure
storage, mortality handling, runoff
controls, reduction of fresh water use
where appropriate, and additional farm
management practices. Land application
costs address agricultural application of
nutrients, including hauling of excess
manure off-site and adjusting for
changes in commercial fertilizer needs,
and reflect differences among operations
based on cropland availability for
manure application.
  EPA evaluated compliance costs using
a representative facility approach based
on approximately 1,600 farm level cost
models to depict conditions and to
evaluate  compliance costs for select
representative CAFOs. The major factors
used to differentiate individual model
CAFOs include the commodity sector,
the farm  production region, and the
facility size  (based on herd or flock size
or the number of animals on-site). EPA's
model CAFOs primarily reflect the
major animal sector groups, including
beef cattle, dairy, hog, broiler, turkey,
and egg laying operations. Practices at
other subsector operations are also
reflected in the cost models, such as
replacement heifer operations, veal
operations, flushed-cage layers, and hog
grow-fmish  and farrow-finish facilities.
  Another key distinguishing factor
incorporated into EPA's cost models is
information on the availability of
cropland and pastureland for land
application of manure nutrients. For
this analysis, nitrogen and phosphorus
rates of land application were evaluated
for three categories of cropland
availability: (1) CAFOs with sufficient
cropland for all manure generated on-
site; (2] CAFOs with some, but not
enough, cropland to accommodate all of
the manure produced at the facility; and
(3) CAFOs with no cropland. EPA used
USDA data to determine the number of
CAFOs within each of.these categories.
This information takes into account
which nutrient (nitrogen or phosphorus)
is used as the basis to assess land
application and nutrient management
costs.
   The data and information used to
develop EPA's cost estimates were
compiled with the assistance of USDA,
in combination with other information
collected by EPA from extensive
literature searches, more than 100 farm
site visits, and numerous consultations
with industry, universities, and
agricultural extension agencies.
Additional detailed information on the
data and assumptions used to develop
EPA's cost estimates is provided in the
Technical Development Document.
Refer to the preamble for the proposed
rule for a summary of EPA's data
collection activities and the sources of
data that the Agency used to estimate
compliance costs (66 FR 3079-3080).
   For the purpose of estimating costs
and financial effects to Medium CAFOs,
EPA assumes that costs that will be
incurred by those sized operations to
comply with BPJ-based limitations
under the revised NPDES regulations
are similar to the estimated costs that
would be incurred if Medium CAFOs
had to comply with the ELG.

2. Estimated Annual Costs of the Final
CAFO Regulations
   a. Costs borne by CAFOs. Table 8.1
summarizes the total annualized
compliance costs to CAFOs. The table
shows these costs broken out by sector
and broad facility size category. As
shown in the table, EPA estimates the
total cost of the final rale to CAFCs at
$326 million annually. (Total monetized
estimated social costs of the rule
include an additional $9 million to
federal and State governments.) Roughly
one-half of this cost is incurred by the
dairy sector, with another roughly 30
percent incurred within the cattle
sectors (including the beef, veal, and
heifer sectors).
  Of this total, EPA estimates that Large
CAFOs will incur costs of $283 million
per year. Total annualized costs to
facilities defined as Medium CAFOs are
estimated at $39 million annually. Table
8.1 also shows estimated total cost to
Small and Medium AFOs that might
incur costs if designated as CAFOs,
which EPA estimates at about $4
million annually. More information on
these costs and how they were   ;
calculated is provided in the Economic
Analysis.
  EPA has estimated the cost of land
application based on nitrogen-based
application rates, except in those:
instances  where EPA believes that
phosphorus-based rates are likely to be
appropriate. The final rule specifies that
the determination of application rates  is
to be based on the technical standards
established by the Director and EPA
expects that these standards will require
phosphorus-based application, where
appropriate. The rule also provides for
these standards to include  appropriate
flexibilities in the use of phosphoras-
based rates, such as multi-year
phosphorus application, but the :
potential costs savings resulting from
these flexibilities are not reflected in the
analysis. As a result, the cost and'
economic impacts  of this rule may have
been overestimated.
                              TABLE 8.1.—ANNUAL PRE-TAX COST OF THE RULE, $2001
Sector

Fed Cattle 	
Veal 	 * 	
Heifer 	
Daliy 	 , 	
Hogs . ....

Layers: Dry1 	
Layers: Wet1 	
Turkeys 	 	 	
No. operations
Large CAFOs
Medium
CAFOs
(number)
1,766
12
242
1,450
3,924
1,632
729
383
388
174
230
7
1,949
1,485
520
26
24
37
Aggregate incremental costs
Total
Large CAFOs
Medium
CAFOs
Designated
CAFOs
($2001, millions, pre-tax)
$88.2
0.0
6.3
151.1
34.8
20.5
7.5
8.9
8.7
$85.8
<0.1
3.8
128.2
24.9
16.8
7.2
8.4
8.1
$1.9
<0.1
2.4
22.0
9.5
2.4
0.1
0.5
0.3
$0.5
0.0
0.1
0.9
0.4
1.3
0.2
0.1
0.3

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7244      Federal  Register/Vol. 68, No. 29 / Wednesday, February 12,  2003/Rules and Regulations

                       TABLE 8.1.—ANNUAL PRE-TAX COST OF THE RULE, $2001—Continued
Sector
Total 	
No. operations
Large CAFOs
10,526
| Medium
I CAFOs
i 4,452
Aggregate incremental costs
Total
326.0
Large CAFOs
283.2
Medium
CAFOs
39.1
Designated
CAFOs
3.8
  Source: USEPA. May not add due to rounding. Number of operations do not include designated facilities. Assumes that the estimated costs for
Medium CAFOs to comply with BPJ-based limitations undef the revised NPDES regulations are similar to the costs that would be incurred by
those sized operations if they had to comply with the ELG. ;
  1 "Layers: dry" are operations with dry manure systems. "Layers: wet" are operations with liquid manure systems.
  b. Costs to the NPDES permitting
authority. The NPDES permitting
authority will incur additional costs to
alter existing State programs and obtain
EPA approval to develop new permits,
review new permit applications, and
issue revised permits that meet the final
regulatory requirements. EPA expects
that NPDES permitting authorities will
incur administrative costs related to the
development, issuance, and tracking of
general or individual permits.
  State and federal administrative costs
to issue a general permit include costs
for permit development, public notice
and response to comments, and public
hearings. States and EPA may also incur
costs each time a facility operator
applies for coverage under a general
permit due to the expenses associated
with a NOI. These per-facility
administrative costs include initial
facility inspections and annual record-
keeping expenses associated with
tracking NOIs. Administrative costs for
an individual permit include
application review by a permit writer,
public notice, and response to
comments. An initial facility inspection
might also be necessary.
  EPA assumes that under the final
regulations an estimated 15,500 CAFOs
would be  permitted. This estimate
consists of about 15,000 CAFOs covered
by State permits and about 500 CAFOs
covered by federal permits.
Administrative costs incurred by State
permitting authorities are expected to be
$8.7 million. EPA permitting authorities
will incur the remaining $0.3 million.
EPA has expressed these costs in 2001
dollars, annualized over the 5-year
permit term using a 7 percent discount
rate. A summary of this analysis is
available in section X.D of this
preamble. More detailed information is
in the  Technical Development
Document.

B. Economic Effects
I. Effects  on the CAFO Operation
  To estimate the impacts of the final
regulations, EPA examined the
economic effects on regulated CAFOs
and national markets. This section
presents EPA's analysis of financial
impacts on both existing and new
CAFOs that will be affected by the final
regulations. Results presented here
focus on economic effects from the
CAFO regulations affecting Large
CAFOs because only large facilities will
be subject to the effluent guidelines and
NSPS. This section also presents EPA's
analysis of the economic effects on
existing operations that are small
businesses. More detailed information
on those effects are presented in the
Economic Analysis.
  The preamble to the proposed rule
summarizes EPA's data collection
activities jand the sources of data that
the Agency used to estimate economic
effects for the final regulations (66 FR
3079-3080). Both the 2001 Notice (66
FR 58556) and the 2002 Notice (67 FR
48099) describe the public comments
received by EPA on the baseline
financial data and the methodological
approach! developed by the Agency to
evaluate financial effects. More detailed
information on these comments and
how EPAj addressed them is in section
2 of the final Economic Analysis. EPA's
detailed responses to these public
comments, and the comments
themselves, are contained in the
Comment Response Document in the
administrative record for today's rule.
Both Notices also present new data
received following proposal that EPA
used in conducting its final analysis.
   a. Methodology used to assess impacts
to the CAFO operation. EPA assessed
financial effects on regulated CAFOs
based on predicted changes to select
financial criteria.  The economic model
that EPA |used to evaluate financial
impacts on CAFOs uses a representative
farm approach. Under this general
framework, EPA constructed a series of
model facilities ("model CAFOs") that
reflect EP^A's estimated compliance
costs and readily available financial
data. EPA used these model CAFOs to
develop an average characterization for
a group o'f operations based on certain
distinguishing characteristics for each
sector, such as facility size and
production region, that can be shared
across a broad range of facilities.
  EPA evaluated the economic
achievability of the rule at existing
operations based on changes in
representative financial conditions
across three financial criteria: (1) An
initial screening comparing incremental
post-tax costs to total gross revenue
("sales test"), (2) projected post-
compliance cash flow over a 10-year
period ("discounted cash flow   :
analysis"),  and (3) an assessment .of an
operation's debt-to-asset ratio under a
post-compliance scenario ("debt-asset
test"). EPA notes that its discounted
cash flow analysis likely understates
impacts because it does not include any
allowance for depreciation or
replacement of capital in its definition
of cash flow. However, EPA has
conducted  a sensitivity analysis that
shows that the number of estimated
CAFO closures would not be different if
allowances for replacement of capital
are made (see section 3.3 of the
Economic Analysis).
  EPA used the results from these
analyses to divide affected CAFOs into
three financial impact categories:
Affordable, Moderate, and Stress.
CAFOs experiencing affordable or
moderate impacts are considered to
have some  financial impact on
operations, but EPA does not expect the
costs of complying with this rule to
make these operations vulnerable: to
closure. EPA considers that for CAFOs
in both the "Affordable" and
"Moderate" impact categories the final
requirements are likely to be
economically achievable. Operations
experiencing financial stress, however,
are considered to be vulnerable to
closure because of the costs of this rule.
EPA considers that for CAFOs in the
"Stress" impact category, the final
requirements are likely not     '.
economically achievable. EPA notes, as
discussed below, that there may be
mitigating factors that could reduce the
number of  facilities experiencing.
financial stress, such as the availability
of cost-share assistance and long-run
market adjustment.
  EPA conducted its analysis first at the
farm level based on data reflecting
financial conditions for the entire farm

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           Federal Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations      7245
operation, (e.g., reflecting income and
cost information spanning the entire
operation, thus considering the
operation's primary livestock
production, along with other income
sources such as secondary livestock and
crop production, government payments,
and other farm-related income). Based
on the farm level results, EPA also   .
assessed the financial effects on CAFOs
at the enterprise level (e.g., limiting the
scope of the assessment to the
operation's livestock or poultry
enterprise, and excluding other non
CAFO-related sources of income from
the analysis). By evaluating the financial
criteria at hoth the farm level  and the
enterprise level, EPA's analyses address
comments expressed by many
commenters, including FAPRI, other
land grant university researchers, and
industry, as well as USDA.
   Starting with the farm level analysis,
EPA considers the regulations to be
economically achievable for a
representative model CAFO if the
average operation has a post-compliance
sales test estimate within an acceptable
range, a positive post-compliance cash
flow over a 10-year period, and a post-
compliance debt-to-asset ratio not
exceeding a benchmark value.
Specifically, if the sales test shows that
compliance costs are less than 3 percent
of sales, or if post-compliance cash flow
is positive and the post-compliance
debt-to-asset ratio does not exceed a
benchmark (depending on the baseline
data) and compliance costs are less than
5 percent of sales, EPA considers the
options to be "Affordable" for the
representative CAFO group. (Although a
sales test result of less than 3  percent
does indicate "Affordable" in the farm
level analysis, further analysis is
conducted to determine the effects  at
the operation's livestock or poultry
enterprise.) The benchmark values
assumed for the debt-asset test are
sector-specific. EPA assumes a 70
percent benchmark value for the debt-
asset test to indicate financial stress in
the hog and dairy sectors, and an 80
percent benchmark for the debt-asset
test to indicate financial stress in the
beef cattle sector. These benchmark
values address public comment received
and alternative debt and asset data
submitted for the livestock sectors. For
the poultry sectors, however, EPA did
not obtain alternative debt and asset
data and continues to evaluate data used
for proposal against a 40 percent
benchmark value. See the Economic
Analysis and EPA response to comment
on this issue for more information.
  A sales test of greater than 5 percent
but less than 10 percent of sales with
positive cash flow and a debt-to-asset
ratio of less than these sector-specific
debt-asset benchmark values is
considered indicative of some impact at
the CAFO level, but at a level not as
severe as those indicative of-financial
distress or vulnerability to closure.
These impacts are labeled "Moderate"
for the representative CAFO group. EPA
considers both the "Affordable" and
"Moderate" impact categories to be
economically achievable by the CAFO,
subject to the enterprise analysis (see
below). If, with a sales test of greater
than 3 percent, post-compliance cash
flow is negative or the post-compliance
debt-to-asset ratio exceeds these sector-
specific debt-asset benchmarks, or if the
sales test shows costs equal to or
exceeding 10 percent of sales, EPA
considers the final regulations to be
associated with potential financial stress
for the entire representative CAFO
group. In such cases, each of the
operations represented by that group
might be vulnerable to closure. For
operations that are determined to
experience financial "Stress" at the farm
level, the final requirements are likely
not economically achievable.
  The enterprise level analysis builds
on the farm level analysis, evaluating
effects at a farm's livestock or poultry
enterprise. If the farm level analysis
shows that the regulations impose
"Affordable" or "Moderate" effects on
the operation, the enterprise level
analysis is conducted to determine
whether the enterprise's cash flow is
able to cover the cost of regulations.
This analysis uses a discounted cash
flow approach similar to that used to
assess the farm level effects, in which
the net present value of cash flow is
compared to the net present value of the
total cost of the regulatory options over
the 10-year time frame of the analysis.
Over the analysis period, if an
operation's livestock or poultry
enterprise maintains a cash flow stream
that both exceeds the cash costs of the
rule (operating and maintenance costs
plus interest) and covers the net present
value of the principal payments on the
capital, EPA concludes that the
enterprise will likely not close because
of the CAFO rule. This analysis is
conducted on a pass/fail basis. If the  net
present value of cash flow minus the net
present value of the rule's costs is
greater than zero, the enterprise passes
the test and the enterprise is assumed to
continue to operate. EPA considers
these results to indicate that the final
requirements are economically
achievable. If the net present value of
cash flow is not sufficient to cover the
net present value of the cost of the rule,
EPA assumes that the CAFO operator
would consider shutting down the
livestock or poultry enterprise. That is,
if an operation fails the enterprise level
analysis, these operations are
determined to experience financial
"Stress" and the final requirements are
likely not economically achievable.
  In response to comments, EPA
conducted additional supplemental
analysis to determine the effects of the
regulation under two different
scenarios. One scenario takes into
consideration the effects of long-run
market adjustment following
implementation of the final regulations.
This analysis is conducted using
simulated changes in producer revenue
given changes in market prices as;
depicted by EPA's market model, -vhich
uses estimates of price and quantity
response in these markets. A second
scenario takes into consideration
potential cost share assistance under
federal and State conservation
programs, assuming that a portion of
costs are covered by cost sharing subject
to programmatic constraints. Given the
uncertainty of whether CAFO income
will rise in response to long-run market
adjustment or whether available cost
share dollars will effectively offset
compliance costs at regulated CAFOs,
EPA's analysis to determine whether the
regulation is "economically achievable"
does not rely on such assumptions as
part of its regulatory analysis and'
therefore reflects the highest level of
impacts projected. However, EPA
presents the results of this analysis
assuming both some degree of cost
passthrough and no cost passthrough, as
well as some degree of cost share
assistance and no cost share assistance,
along with the results of its lead
analysis. Additional detailed
information on this decision framework
is provided in section 2 of the Economic
Analysis.
  b. Economic effects on existing CAFOs
affected by the Effluent Guidelines.
Table 8.2 presents the results of EPA's
analysis of the estimated CAFO
financial effects in terms of the number
of operations that will experience
affordable, moderate, or stress impact
because of this rule. Results are shown
by sector for Large CAFOs.
  EPA's analysis indicates that, for all
Large CAFOs in the veal, dairy, turkey,
and egg laying sectors, the impacts due
to this rule are characterized as  '
"Affordable" or "Moderate" and no
facility closures are projected for these
facilities. Therefore, EPA determined
the rule being promulgated todayis
economically achievable for existing
facilities in these animal sectors. In the
beef cattle, heifer, hog and broiler
sectors, however, EPA's analysis

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 7246      Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and  Regulations
 indicates that the final rule will cause
 some existing CAFOs to experience
 financial stress, making these operations
 vulnerable to facility closure. Across all
 sectors, an estimated 285 existing Large
 CAFOs might be vulnerable to facility
 closure. This accounts for
 approximately 3 percent of all Large
 CAFOs. By sector, EPA estimates that 49
 beef operations (3 percent of affected
 beef CAFOs), 22 heifer operations (9
 percent),  204 hog operations (5 percent
 of affected hog CAFOs), and 10 broiler
 operations (1 percent) might close as a
 result of complying with the final
 regulations. These estimates of the
 number of potential CAFO closures are
 cumulative and reflect the results of
 both the farm level analysis and the
 enterprise level analysis. These
 estimated closure rates are. generally
 consistent with the findings of
 economic achievability of previous
 effluent guidelines for other industrial
 point source categories. Based on the
 results of this analysis, EPA concludes
 that the jfinal rule is economically
 achievable for existing CAFOs. More
 detailed information is provided in the
 Economic Analysis.
   The results described above do not
 reflect long-run market adjustment and
 cost share assistance through federal
 and Stat:e conservation programs due to
 uncertainties associated with these
 considerations,, for reasons discussed in
 the Economic Analysis. Although EPA
 concluded, based on the results in Table
 8.2, that the final regulation is
 economically achievable, the Economic
 Analysis presents the results of
 alternative analyses under varying
 assumptions of long-run market
 adjustment and potential cost share
 assistance. Under assumptions of long
 run market adjustment, as reflected in
 eventual increases in CAFO revenue
 and producer prices, the number of
 potential facility closures is reduced
 from 285 closures to a single facility
 closure in the beef sector. All operations
 in the heifer, hog, and broiler sectors are
 expected to be able to absorb the
 estimated compliance costs under an
 assumption that incorporates long run
 market adjustment. Under assumptions
 of partial cost share assistance, assumed
 for this analysis to cover 50 percent of
 the capital expenditure to comply with
 the revised regulations, the number of
 potential closures is reduced only
 somewhat from 285 closures to 261
 closures (comprised of 43 beef, 11
 heifer, 204 hog, and 3 broiler
 operations). EPA conducted these
 analyses only for the beef, heifer, hog
 and broiler sectors since all Large
 CAFOs in the other sectors  are
 estimated to be able to absorb costs
 associated with the final rule.
                       TABLE 8.2.—FINANCIAL AFFECTS ON URGE CAFOs: FINAL REGULATIONS
Sector
Fed Cattle 	 „ ..
Veal 	 	 	
Heifer 	
Dairy 	
Hogs 	
Broilers 	
Layers: Dry1 	
Layers: Wet1 	
Turkeys 	
Total 	
Number
large
CAFOs
1,766
12
242
1,450
3,924
1,632
729
383
388
10,526
Number
Affordable
1,717
12
220
1,019
3,249
1,032
729
383
i . 388
j 8,749
Moderate

0
0
431
470
590
0
0
0
1,491
Stress
49
0
22
0
204
10
0
0
0
285
Percent of total operations
Affordable
97
100
91
70
83
63
100
100
100
83
Moderate
0
0
0
30
12
36
0
0
0
14
Stress
3
0
9
0
5
1
0
0
0
3
  Source: USEPA. See Economic Analysis. May not add due to rounding.
  1 "Layers: dry" are operations with dry manure systems. ^Layers: wet" are operations with liquid manure systems.
  c. Economic effects to existing CAFOs
that are small businesses. (1) Number of
affected small businesses. This section
presents EPA's analysis of the economic
effects on CAFOs that are small
businesses. It summarizes the estimated
number of small entities to which the
rule will apply and describes the
potential effects of the final rule on
these businesses.
  The SBA defines a "small business"
in the livestock and poultry sectors in
terms of average  annual receipts (or
gross revenue). SBA size standards  for
these industries define a "small
business" as one with average annual
revenues over a 3-year period of less
than $0.75 million for dairy, hog,
broiler, and turkey operations; $1.5
million for beef feedlots; and $9.0
million for egg operations. EPA defines
a "small" egg laying operation for
purposes of its regulatory flexibility
assessments as an operation that
generated less than $1.5 million in
annual revenue. EPA consulted with
SBA on the use of this alternative
definitiop. A summary of EPA's
rationale and supporting analyses
pertaining to this alternative definition
is provided in the administrative record
and in Section 4 of the Economic
Analysis,.
  Given [these considerations, EPA
defines a "small business" for this rule
as an operation that houses or confines
less than 1,400 fed beef cattle (includes
fed beefjveal, and heifers); 300 mature
dairy cattle; 2,100 market hogs; 37,500
turkeys; 61,000 layers; or 375,000
broilers. [The approach used to derive
these estimates is described in the
Economic Analysis and the
administrative record.
  EPA estimates that of the
approximately 238,000 animal
confinement facilities in 1997, roughly
95 percent are small businesses. Not all
of these operations will be affected by
the final rule. Table 8.3 shows EPA's
estimates of the number of "small
business CAFOs that are expected to be
affected by this rule. For this analysis,
EPA estimates that about 6,200 affected
CAFOs across  all size categories are
small businesses, accounting for more
than 40 percent of the estimated 14,515
affected facilities. EPA estimates that
among Large CAFOs about 2,330
operations are small businesses
(accounting for about one-fourth of all
Large CAFOs). Most affected small
businesses are in the broiler sector.
Among Medium CAFOs, EPA estimates
about 3,870 operations are small
businesses (accounting for the majority
of operations in this size category), and
most of the affected small businesses are
in the hog, dairy, and broiler sectors.
  For reasons noted in the
administrative record, EPA believes that
the number of small broiler operations

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           Federal Register/Vol. 68, No. 29/Wednesday,  February 12, 2003/Rules and Regulations	 7247
is overestimated and might actually
include a number of medium and large
broiler operations that should not be
considered small businesses.
  (2) Estimated financial effects on
small businesses. For the 2001 proposal,
EPA conducted a preliminary
assessment of the potential impacts on
small business CAFOs based on the
results of a costs-to-sales test (66 FR
3101). This screen test indicated the
need for additional analysis to
characterize the nature and extent of
impacts on small entities. Based on the
results of this initial assessment, EPA
projected that it would likely not certify
that the proposal, if promulgated, would
not impose a significant economic
impact on a substantial number of
entities. Therefore, EPA convened a
SBAR Panel and prepared an Initial
Regulatory Flexibility Analysis (IRFA)
pursuant to sections 609[b) and 603 of
the RFA, respectively. The 2001
proposal provides more information on
EPA's small business outreach and the
Panel activities during the development
of this rulemaking (66 FR 3121). Section
XI of this preamble presents EPA's Final
Regulatory Flexibility Analysis (FRFA),
as required under section 604 of the
RFA. More detailed information on this
analysis is provided in section 4 of the
Economic Analysis.
  In examining the effects on small
businesses for the final rule, EPA
followed the same approach used to
evaluate the impacts on other existing
CAFOs, described in section VHLB.l(a).
For the purposes of this analysis, EPA
assumes that the costs that will be
incurred by those sized operations to
comply with BPJ-based limitations
under the revised NPDES regulations
are similar to the estimated costs that
would be incurred if Medium CAFOs
had to comply with the ELG.
  For past regulations, EPA has often
analyzed the potential impacts to small
businesses by evaluating the results of a
costs-to-sales test, measuring the
number of operations that will incur
compliance costs at varying threshold
levels (including ratios where costs are
less than 1 percent, between 1 and 3
percent, and greater than 3 percent of
gross income). EPA conducted such an
analysis at the time of the 2001
proposal, indicating that about 80
percent of the estimated number of
small businesses directly subject to the
rule as CAFOs might incur costs in
excess of three percent of sales.
  EPA believes that its more refined
analysis used for its general analysis
(presented here) better reflects the
potential impacts to regulated small
businesses. Using this approach, EPA's
analysis indicates that the final rule
could cause financial stress to some
small businesses, making these
businesses vulnerable to closure.;
Among the estimated 6,200 small;
businesses, EPA estimates that 26|2
Large and Medium CAFOs might be
vulnerable to facility closure (Table 8.3).
Thus, EPA estimates that potential
facility closures associated with this
rule constitutes about 4 percent of all
affected small business CAFOs. Medium
CAFOs comprise the majority (about 85
percent) of these estimated number of
closures. These results do not consider
long-run market adjustment or cost
share assistance through federal and
State conservation programs. More
detailed information is provided in the
Economic Analysis.
                            TABLE 8.3.—FINANCIAL EFFECTS ON SMALL BUSINESS CAFOs
Sector
CAFOs >1,000 AU:
Fed Cattle 	
Veal 	
Heifer 	 	
Daley
HOQS
Broilers 	
Layers* Dry1
Layers: Wet1 	
Turkeys . . .
Total 	
Operations 300-1,000 AU (Defined as
CAFOs):
Fed Cattle 	
Veal 	
Heifer 	
Dairy 	
Hogs 	
Broilers 	
Layers: Dry1 	
Layers: Wet1 	
Turkeys 	
Total 	
Number of
small
businesses
538
5
97
0
0
1,303
0
383
•o
2,326
• 174
7
230
1,330
1,485
520
24
24
31
3,825
Number
Affordable
522
5
88

763
383
1,795
7
7
189
1,306
1,483
263
24
24
31
3,334
Moderate
0
0
0

532
0
532
0
0
0
24
2
248
0
0
0
274
Stress
16
0
9

9
0
34
167
0
41
0
0
10
0
0
0
228
Percent of total operations1
Affordable
97
100
91

58
100
76
4
100
82
98
100
51
100
100
100
87
Moderate
0
0
0
41
0
23
0
0
0
2
0
48
0
0
0
7
Stress
3
6
9
1
0

1
96
0
18
0
0
1
0
0
0
6
  Source: USEPA. See Economic Analysis. May not add due to rounding. Assumes that the costs that will be incurred by those sized operations
to comply With BPJ-based limitations under the revised NPDES regulations are similar to the estimated costs that would be incurred if .Medium
CAFOs had to comply with the ELG.
  1 "Layers: dry" are operations with dry manure systems. "Layers: wet" are operations with liquid manure systems.
  d. Economic effects to new CAFOs.
EPA evaluated impacts on new source
CAFOs by comparing the costs borne by
new source CAFOs to those estimated
for existing sources. That is, if the
expected cost to new sources is similar
to or less than the expected cost borne
by existing sources (and that cost was
considered economically achievable for

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7248      Federal Register/Vol.  68, No. 29/Wednesday, February 12, 2003/Rules  and Regulations
existing sources), EPA considers that the
regulations for new sources do not
impose requirements that might grant
existing operators a cost advantage over
new CAFO operators and further
determines that the NSPS requirements
are affordable and do not present a
barrier to entry for new facilities. In
general, costs to new sources from NSPS
requirements are lower than the costs
for retrofitting the same technologies at
existing sources since new sources are
able to apply control technologies more
efficiently than existing sources that  .
might incur high retrofit cost. New
sources will be able to avoid the retrofit
costs that will be incurred by existing
sources. Furthermore, new sources
might be able to avoid the other various
control costs facing some existing
producers through careful site selection.
The requirements promulgated in
today's rule do not give existing
operators a cost advantage over new
CAFO operators; therefore, the NSPS do
not present a barrier to entry for new
facilities. Examples of avoided retrofit
costs and costs of total containment
systems and waste management,
including land application, for both
existing and new sources are provided
in Section IV.C of this preamble. More
detailed information is  provided in the
Cost Report and the Economic Analysis
supporting the final regulations.
2. Market Analysis
  EPA's market analysis evaluates the
effects of the final regulations on
national markets. This analysis uses a
linear partial equilibrium model
adapted from the COSTBEN model
developed by USDA's Economic
Research Service. The modified EPA
model provides a means to conduct a
long-run static analysis to measure the
market effects of the final regulations in
terms of predicted changes in farm and
retail prices and product quantities.
Market data used as inputs to this model
are from a wide range of USD A data and
land grant university research. Once
price and quantity changes are
predicted by the model, EPA uses
national multipliers that relate changes
in sales to changes in total direct and
indirect employment and also to
national economic output. These
estimated relationships are based on the
Regional Input-Output Modeling System
(RIMS H) from the U.S.  Department of
Commerce. The details of the market
analysis are described in the Economic
Analysis.
  a.  Commodity prices and quantities.
EPA's market model predicts that the
final rule will not result in significant
industry-level changes in production
and prices for most sectors. Predicted
changes in animal production might
raise producer prices as the market
adjusts to the final regulatory
requirements. For most sectors, EPA
estimates ;that producer price changes
will rise by less than one percent of the
pre-regulation baseline price. The
exception: is in the hog sector, where
estimatedlcompliance costs slightly
exceed onte percent of the baseline price.
At the retail level, EPA expects that the
final rule will not have a substantial
impact on overall production or
consumer^prices for value-added meat,
eggs, and fluid milk and dairy products.
EPA estimates that retail price increases
resulting from this rule will be less than
one percent of baseline prices in all
sectors, averaging below the rate of
general price  inflation for all foods. In
terms of retail level price changes, EPA
estimates that poultry and red meat
prices wilj rise about one cent per
pound. EPA also estimates that egg
prices will rise by about one cent per
dozen and that milk prices will rise by
about one'cent per gallon.
  b. Aggregate employment and
national  economic output. EPA does not
expect the final rule to cause significant
changes iii aggregate employment or
national e'conomic output,  measured in
terms of Gross Domestic Product (GDP).
EPA expepts,  however, that there will be
losses in employment and economic
output associated with decreases in
animal production due to rising
compliance costs. These losses are
estimatedithroughout the entire
economy,'using available modeling
approaches, and are not attributable to
the regulated  community only. This
analysis also does not adjust for
offsetting increases in other parts of the
economy ^md other sector employment
that might be  stimulated as a result of
the final rjule, such as the construction
and farm services sectors.
  Employment losses are measured in
full-time equivalents (FTEs) per year,
including jboth direct and indirect
employment.  EPA estimates that the
reduction [in total direct employment is
about l,6do FTEs. This projected change
is compared to total national
employment of about 129.6 million jobs
in 1997. More detailed information on
these results is presented in the
Economic Analysis.
  c. Regional and community impacts.
EPA considered whether the final rule
could havb community level and/or
regional impacts if it substantially
altered the competitive position of
livestock and  poultry production across
the nation, or led to growth or reduction
in farm production (in- or out-
migration) in  different regions and
communities. Ongoing structural and
technological changes in these
industries have influenced where
farmers operate and have contributed to
locational shifts between the traditional
production regions and the emergent,
nontraditional regions. Production is
growing rapidly in the emergent regions
because of competitive pressures and
-because specialized producers tend to
have the advantage of lower per-unit
costs of production. This is especially
true in hog and dairy production,
  To evaluate the potential for
differential impacts among farm
production regions, EPA examined
employment impacts by region. EPA
also evaluated whether the final
requirements could result in substantial
changes in volume of production, given
predicted facility closures, within a
particular production region. EPA
concludes from these analyses that
regional and community level effects are
estimated to be modest, but do tend to
be concentrated within the more
traditional agricultural regions. This
analysis is discussed in the Economic
Analysis.
  EPA does not expect that this rule
will have a significant impact on where
animals are  raised. On one hand, on-site
improvements in waste management
and disposal, as required by the final
rule, could accelerate recent  shifts in
production to more nontraditional
regions as higher-cost producers in
some regions exit the market to avoid
the relatively high retrofitting costs
associated with bringing existing
facilities into compliance. On the; other
hand, the final regulations might favor
more traditional production systems
where operators grow both livestock and
crops, since these operations tend to
have available cropland  for land  '.
application  of manure nutrients. These
types of operations tend to be more
diverse and  less specialized and,.
generally, smaller in size. Long-standing
farm services and input supply
industries in these areas could likewise
benefit from the final rule, given the
need to support on-site improvements
in manure management and disposal.
Local and regional governments,  as well
as other nonagricultural  enterprises,
would also benefit.              ;
  d. Foreign trade impacts. Foreign
trade impacts are difficult to  predict
because agricultural exports are
determined  by economic conditions in
foreign markets and changes  in the
international exchange rate for the U.S.
dollar. However, EPA predicts thai
foreign trade impacts as  a result of the
final rule will be minor given the
relatively small projected changes in
overall supply and demand for these
products and the slight increase in

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           Federal Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and  Regulations     7249
market prices, as described in section
Vin.B.2(a). Measured as potential for
changes in traded volumes, such as
increases in imports and decreases in
exports, EPA estimates that increases in
imports and decreases in exports will
each total less than 1 percent compared
to baseline (pre-regulation) levels in
each of the commodity sectors. Based on
these results, EPA believes that any
quantity and price changes resulting
from the final rule will not significantly
alter the competitiveness of U.S. export
markets for meat, dairy foods, and
poultry products.
C. Cost-Benefit and Cost-Effectiveness
Analyses
1. Cost-Benefit Analysis

  This section presents a comparison of
the costs and benefits attributable to  the
final rule. As Table 8.4 shows, the
economic value of the environmental
benefits EPA is able to monetize (i.e.,
evaluate in dollar terms) is comparable
to the estimated costs of the rule. As
discussed in section VII, EPA estimates
that the monetized benefits of the final
rule range from $204 million to $355
million annually. Monetized benefit
categories are primarily in the areas of
improved surface water quality
(measured in terms of enhanced
recreational value), reduced nitrates in
private wells, reduced shellfish bed
closures from pathogen contamination,
and reduced fish kills from episodic
events. As discussed in Section VII of
this preamble, EPA also identified a
number of benefits categories that could
not be monetized. These benefits are
described in more detail in Section VII
.of this preamble and in the Benefits
Analysis and other supporting
documentation provided in the
administrative record.
  This compares to EPA's estimate of
the total social costs of the final
regulations of about $335 million
annually. These costs cover compliance
costs to all CAFOs (Large, Medium, and
Small), and administrative costs to
States and federal governments. Costs to
all CAFOs are estimated at $326 million
per year (pre-tax, $2001). EPA estimates
the administrative cost to State and
federal governments to implement this
rule is $9 million per year. There |may
be additional social costs that have not
been monetized. For a detailed
discussion of these costs, see the
Technical Development Document and
the Economic Analysis. A comparison of
the total costs and benefits for other
regulatory options considered and
analyzed by EPA can be found in the
Economic Analysis.
                        TABLE 8.4.—TOTAL ANNUAL MONETIZED SOCIAL COSTS AND BENEFITS
                                                [Millions of 2001 dollars]
Category
Social Costs:
Industry Compliance Costs (pre-tax) 	
State/Federal Administrative Costs 	 	 	

Total 	
Benefits (Total for all CAFOs) 	
Large CAFOs
$298
6

304
$204 to $355
All CAFOs
$352
9

360
(")
  "Benefits analysis does not reflect monetized benefits for Medium CAFOs. May not add due to rounding.
  See Table 7.1 for information on benefit categories that EPA was not able to monetize.
 2. Cost-Effectiveness Analysis
   As part of the process of developing
 effluent limitations guidelines and
 standards, EPA typically conducts a
 cost-effectiveness (C-E) analysis to
 compare the efficiencies of regulatory
 options for removing pollutants. This
 analysis defines cost-effectiveness as the
 incremental annualized cost of a
 regulatory control option per
 incremental pound of pollutant
 removed annually by that option.
   The American Society of Agricultural
 Engineers reports that the constituents
 present in livestock and poultry manure
 include boron, cadmium, calcium,
 chlorine, copper, iron, lead, magnesium,
 manganese, molybdenum, nickel,
 potassium, sodium, sulfur, zinc,
 nitrogen and phosphorus species,  TSS,
 and pathogens. Of these pollutants,
 EPA's standard C—E analysis is suitable
 to analyze only the removals of metals
 and metallic compounds. EPA's
 standard C-E analysis does not
 adequately address removals of
 nutrients, TSS, and pathogens. To
 account for the estimated removal of
 nutrients and sediments under the final
 rule, the Agency developed an
 alternative approach to evaluate the
 pollutant removal effectiveness for
 nutrients and sediment relative to the
 cost of these pollutant removals.
   The C-E analysis conducted for this
 rule evaluates the cost-effectiveness of
 removing select non-conventional and
 conventional pollutants, including
 nitrogen, phosphorus, and sediments.
 For this analysis, sediments are used as
 a proxy for TSS. This analysis compares
 the estimated compliance cost per
 pound of pollutant removed to a
 recognized benchmark, such as EPA's
 benchmark for conventional pollutants
 or other criteria for existing treatment,
 as reported in available cost-
 effectiveness studies. The research in
 this area has mostly been conducted at
 municipal facilities, including publicly
 owned treatment works (POTWs) and
 wastewater treatment plants (WWTPs).
 Additional information is available
 based on the effectiveness of various
 nonpoint source controls and BMPs and
 other pollutant control technologies that
 are commonly used to control runoff
 from agricultural lands. A summary of
this literature is provided in the
Economic Analysis. Benchmark
estimates were used to evaluate the
efficiency of the final rule in removing
a range of pollutants. This approach also
allowed for an assessment of the types
of management practices that will be
implemented to comply with the final
regulations.
  For this analysis, EPA estimated
average cost-effectiveness values that
reflect the increment between no
revisions to the current regulations and
the final regulatory requirements
promulgated today. All costs are
expressed in pre-tax 2001 dollars;
Estimated compliance costs used to
calculate the cost-effectiveness of the
final regulations include total estimated
costs to CAFOs and costs to the
permitting authority.
  EPA estimates an average cost-
effectiveness of nutrient removal at
about $3 per pound of nitrogen removed
(pre-tax, 2001 dollars). For phosphorus
removal, removal costs are estimated at
about $7 per pound of phosphorus
removed. For nitrogen, EPA used .a cost-
effectiveness benchmark established by

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 7250      Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules  and Regulations
 its Chesapeake Bay Program to assess
 the costs to WWTPs to implement
 system retrofits to achieve biological
 nutrient removal. This nitrogen
 benchmark estimate is approximately $4
 per pound of nitrogen removed, based
 on a range of costs of $0.80 to $5.90 per
 pound of nitrogen removed. EPA's
 estimated cost-effectiveness to remove
 nitrogen falls within the estimated range
 of removal costs and is less than this
 average benchmark value assumed for
 this rule. For phosphorus, EPA assumed
 a cost-effectiveness benchmark of
 roughly $10 per pound based on a
 review of values reported in the
 agricultural research of the costs to
 remove phosphorus using various
 nonpoint source controls and
 management practices. EPA's estimated
 cost-effectiveness to remove phosphorus
 under this rule also falls below this $10
 per pound benchmark value, indicating
 that the requirements are cost-effective.
 This is particularly true when compared
 to the reported cost to remove
 phosphorus at other industrial point
 source dischargers, where reported
 average costs are twice that for
 agricultural sources and often exceed
 $100 per pound of phosphorus
 removed. Based on these results, EPA
 concludes that these values are cost-
 effective.
  EPA also examined the cost-
 effectiveness  of removing sediments
 under the regulations. EPA estimates a
 cost of less than $0.30 per pound of
 sediment removal in this rule (pre-tax,
 2001 dollars). This estimated per-pound
 removal cost  is low compared to EPA's
 POTW benchmark for conventional
 pollutants. That benchmark measures
 the potential  costs per pound of TSS
 and BOD removed for an "average"
 POTW (see 51 FR 24982). Indexed to
 2001 dollars,  EPA's benchmark costs are
 about $0.73 per pound of TSS and BOD
 removed. For information on EPA's
 cost-effectiveness, see the Economic
 Analysis.

 EX. Coordination With Other Federal
 Programs

 A. How Does  Today's Rule Function in
 Relation to Other EPA Programs?
  The relationship between animal
 agriculture and water quality is affected
by existing programs other than the
CAFO regulations.-This section of the
preamble presents today's action in the
context of some of these other programs.
 1. Water Quality Trading
  EPA proposed a water quality trading
policy on May 15, 2002, for public
review and comment. The proposed
policy lays out guidelines for States and
 local governments/municipalities to
 consider when implementing a water
 quality trading program to maintain or
 reduce pollutant loading and achieve
 the goals of the Clean Water Act. Water
 quality trading is considered by some to
 be a more efficient and quicker
 pollution reduction process to meet
 water quality standards than
 conventional Clean Water Act methods.
 The proposed trading policy encourages
 currently regulated and nonregulated
 sources pf pollution to interact more
 and malfe mutually beneficial
 agreements to reduce pollutant loading
 they might otherwise not be motivated
 to make; CAFOs may find mutually
 beneficial opportunities for water
 quality pollutant trading with other
 point and nonpoint sources in their
 watershed. For CAFOs interested in
 more details about Water Quality
 Tradingj please go http://www.epa.gov/
 ow. Thejtrading policy includes  a
 general EPA water  quality trading policy
 statement and identifies elements that
 define alsuccessful trading program and
 provisions that should ensure
 consistency with the Clean Water Act.

 2. Total ^laximum  Daily Load (TMDL)
  The TMDL provisions of the Clean
 Water Act are intended to be the second
 line of dlefense for protecting the quality
 of surface water resources. When
 technology-based controls on point
 sources are inadequate for water to meet
 State water quality standards, section
 303(d) of the Clean Water Act requires
 States to; identify those waters and to
 develop fTMDLs. A TMDL study  must be
 conducted for each pollutant that causes
 a water body to fail to meet State water
 quality standards. More than 20,000
 waters are identified nationally as being
 impaired and possibly requiring  a
 TMDL. The top impairments in 1998
 were sediment, nutrients, and
 pathogens. AFOs and CAFOs can be
 sources of all three  pollutants.
  A TMDL is a calculation of the
 greatest amount of a pollutant that a
 water bojdy can receive without
 exceeding water quality standards. A
 TMDL allocates the amount of pollution
 that can be contributed by the pollutant
 sources. A TMDL study identifies both
 point an£ nonpoint sources of each
 pollutanj: that cause a water to fail to
 meet water quality standards. Water
 quality sampling, biological and habitat
 monitorijng, and computer modeling
 help the TMDL writer determine how
much eagh pollutant source must
reduce its contribution to ensure that
the water quality standard is met.
Through|the TMDL process, pollutant
loads are allocated to all sources.
Wasteload allocations for point sources
 are enforced through NPDES discharge
 permits. Load allocations for nonpoint
 sources are not federally enforceable,
 but can be met through voluntary
 approaches. In some impaired   !
 watersheds, AFOs and CAFOs may be
 affected by TMDLs since improved
 management practices may be necessary
 to restore water quality. In the case of
 CAFOs, any necessary pollutant loading
 reductions would be achieved through
 the use of NPDES permits issued in
 accordance with the requirements
 contained in today's final rule.

 3. Watershed Permitting
  Watershed-based permits are NPDES
 permits that are issued to point sources
•on a geographic or watershed basis.
 They focus on watershed goals arid
 consider multiple pollutant sources and
 stressors, including the level of
 nonpoint source control needed. A
 watershed approach provides  a   ;
 framework for addressing all stressors
 within a hydrologically defined
 drainage basin instead of viewing
 individual pollutant sources in
 isolation. More than 20,States have
 implemented some form of the   ,
 watershed approach and manage  their
 resources on a rotating basin cycle.
  Because of the recent emphasis! on
 water quality-based permits and
 development of TMDLs that focus on
 water quality impacts, EPA is looking at
 ways to use watershed-based permits to
 achieve watershed goals. The
 watershed-based permit is a tool that
 can assist with implementation of a
 watershed approach. The utility qf this
 tool relies heavily on a detailed,  :
 integrated, and inclusive watershed
 planning process. Many of the actions
 necessary for a successful TMDL are
 also needed for a successful watershed
 approach. The process and data needs
 for developing a watershed-based
 permit and for developing a TMDL are
very similar. In places where TMDLs
have been developed, watershed
permits may be useful tools for
implementing TMDLs. For example,
North Carolina's nutrient management
strategy for the Neuse River Basin
includes a watershed-based permit
approach for TMDL implementation.
The strategy recognizes the need for all
groups to work together and includes an
approach for permitted dischargers to
work collectively to meet a combined
nitrogen allocation, rather than be
subject to individual allocations. The
implementation of the approach is being
developed (NC DWQ, 1998, 2002). A
watershed permit approach was also
used for municipal discharges  in
Connecticut contributing nutrients to
the Long Island Sound (CTDEP, 2001).

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           Federal  Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations      7251
An approach similar to those used in
North Carolina and Connecticut can be
                 ! CAFOs within a
4. Coastal Zone Act Reauthorization
Amendments of 1990 (CZARA)
  In the Coastal Zone Act
Reauthorization Amendments of 1990
(CZARA), Congress required States with
federally approved coastal zone
management programs to develop and
implement coastal nonpoint pollution
control programs. Thirty-three States
and Territories currently have federally-
approved Coastal Zone Management
programs. Section 6217(g) of CZARA
called for EPA, in consultation with
other federal agencies, to develop'
guidance on "management measures"
for sources of nonpoint source pollution
in coastal waters. In January 1993 EPA
issued its Guidance Specifying
Management Measures for Sources of
Nonpoint Pollution in Coastal Waters,
which addresses  five major source
categories of nonpoint pollution: urban
runoff, agriculture runoff, forestry
runoff, marinas and recreational
boating, and hydromodification. Within
the agriculture runoff nonpoint source.
category, the EPA guidance specifically
included management measures
applicable to all new and existing
"confined animal facilities." The
guidance identifies which facilities
constitute large and small confined
animal facilities based solely on the
number of animals confined. The
manner of discharge is not considered.
Under the CZARA guidance, a large beef
fccdlot contains 300 head or more, a
small feedlot between 50 and 299 head;
a large dairy contains 70 head or more,
a small dairy between 20 and 69 head;
a large layer or broiler contains 15,000
head or more, a small layer or broiler
between 5,000 and 14,999 head; a large
turkey facility contains 13,750 head or
more, a small turkey facility between
5,000 and 13,749 head; and  a large
swine facility contains 200 head or
more, a small swine facility  between
100 and 199 head.
  The thresholds in the CZARA
guidance for identifying large and small
confined animal  facilities are lower than
those established for defining CAFOs
under today's rules. Thus, in coastal
States the CZARA management
measures potentially apply to a greater
number of small  facilities than today's
CAFO definition. Despite the fact that
both the CZARA management measures
for confined animal facilities and the
NPDES CAFO regulations address
similar operations, these programs do
not overlap or conflict with  each other.
CZARA applies to nonpoint source
dischargers. Any CAFO facility, as
defined by 40 CFR Part 122, that has an
NPDES CAFO permit, is a point source
discharger and thus not subject to
CZARA. Similarly, if a facility subject to
CZARA management measures is later
designated a CAFO by an NPDES
permitting authority, the facility is no
longer subject to CZARA. With respect
to AFOs, some of these facilities may be
subject to both NPDES and CZARA
requirements, if they have both point
and nonpoint source discharges. EPA's
CZARA guidance provides that new
confined animal facilities and existing
large confined animal facilities should
limit the discharge of facility
wastewater and runoff to surface waters
by storing such wastewater and runoff
during storms up to and including
discharge caused by a 25-year, 24-hour
storm. Storage structures should have an
earthen or plastic lining, be constructed
with concrete, or constitute a tank. All
existing small facilities should design
and implement systems that will collect
solids, reduce contaminant
concentrations, and reduce runoff to
minimize the discharge of contaminants
in both wastewater and in runoff caused
by storms up to and including a 25-year,
24-hour storm. Existing small facilities
should substantially reduce pollutant
loadings to ground water. Both large and
small facilities should also  manage
accumulated solids in an appropriate
waste utilization system. In addition to
the confined animal facility
management measures, the CZARA
guidance includes a nutrient
management measure intended to be
applied by States to activities associated
with the application of nutrients to
agricultural lands (including the
application of manure). The goal of this
management measure is to minimize
edge-of-field delivery of nutrients and
minimize the leaching of nutrients from
the root zone. The nutrient management
measures also provide for the
development, implementation, and
periodic updating of a nutrient
management plan.

5. Clean Water Act Sec. 319 Program
  Congress amended the Clean Water
Act in 1987 to establish the section 319
Nonpoint Source Management Program
because it recognized the need for
greater federal leadership to help focus
State and local nonpoint source efforts.
Under section 319, States, Territories,
and Indian Tribes receive grants to
implement their approved management
programs for controlling non-point
source pollution, which may include a
wide variety of activities, including
technical assistance, financial
assistance, education, training,
technology transfer, demonstration
projects, and monitoring to assess the
success of specific nonpoint source
implementation projects. More than 40
percent of section 319 Clean Water Act
grants have been used for activities to
control and reduce agricultural
nonpoint source pollution. Also, several
USDA and State-funded programs
provide cost-share, technical assistance,
and economic incentives to implement
NFS pollution management practices.

6. Source Water Protection Program

  Although many States, water systems,
and localities have established
watershed and wellhead protection
programs, the 1996 Safe Drinking Water
Act Amendments placed a new focus on
source water quality. States have been
given access to funding and required to
develop Source Water Assessment
Programs to assess the areas serving as
public  sources of drinking water in
order to identify potential threats and
initiate protection efforts.
  The Source Water Assessment
Programs created by States differ
because they are tailored to each State's
water resources and drinking water
priorities. However, each assessment
must include four major elements:
delineating (or mapping) the source
water assessment area, conducting an
inventory of potential sources of
contamination in the delineated area,
determining the susceptibility of the
water supply to those contamination
sources, and releasing the results ;of the
determinations to the public.
  Although a number of measures are in
place to protect and retain the high
quality of the Nation's drinking water,
drinking water sources are subject to a
number of threats, including growing
population, chemical use, and animal
wastes. Improper disposal of chemicals,
animal wastes, pesticides, and human
wastes, as well as the persistence :of
naturally occurring minerals, can
contaminate drinking water sources.
Like human wastes, animal wastes
contain pathogens, such as E. coli, that
can sicken hundreds of people and kill
the very young and old and people with
weakened immune systems. These
wastes can enter drinking water
supplies in runoff from feedlots and
pastures.
  In addition to these State efforts, EPA
is working with a broad spectrum of
stakeholders to develop a national
strategy to prevent source water
contamination. When it is complete, the
strategy will reflect what EPA's Water
Program can do to further source water
contamination prevention nationwide.

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 7252     Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules  and Regulations
 7. What Is EPA's Position Regarding
 Environmental Management Systems?
   The Agency supports the voluntary
 adoption of environmental management
 systems (EMSs) by CAFOs. On May 15,
 2002, the Administrator announced the
 Agency's Position Statement on
 Environmental Management Systems.
 This statement outlines the policy and
 principles by which the Agency will
 work with industry to promote the use
 of EMSs to improve environmental
 protection. EPA promotes the wide-
 spread use of EMSs across a range of
 organizations and settings, with
 particular emphasis on adoption of
 EMSs to achieve improved
 environmental performance and
 compliance, and pollution prevention
 through source reduction. The Agency
 encourages organizations to implement
 EMSs based on the plan-do-check-act
 framework, with the goal of continual
 improvement. An organization's EMS
 should address its entire environmental
 footprint (everywhere it interacts with
 the environment both negatively and
 positively), including both regulated
 and unregulated impacts,  such as energy
 and water consumption, dust, noise,
 and odor. EPA supports EMSs that are
 appropriate to the needs and
 characteristics of specific sectors and
 facilities.
  An operation could choose to
 implement an EMS that could include a
 CNMP, but would also include policies
 and practices designed to address other
 significant environmental problems.
 EPA, as part of its overall policy on
 EMSs, supports adoption of these
 systems in a variety of sectors, including
 agriculture. EPA has worked with
 specific agricultural producer groups
 like the United Egg Producers to
 develop a voluntary EMS program.
 USDA is also funding a major effort
 through the University of Wisconsin
 called Partnerships for Livestock
 Environmental Assessment
 Management Systems. This project is
 designed to provide information and
 other guidance on ways to use EMSs
 effectively in a variety of agricultural
 settings. EPA serves on the Advisory
 Committee for this effort, along with
 USDA and other federal agencies.
  In the 2002 Notice,  EPA outlined
 options for how an EMS program may
be incorporated into the rule. These
 options were based on ISO 14000
 criteria, an international standard. EPA
received a number of comments on
these options. Industry was split in
support of EMS: some groups thought
that use of EMSs in the proposal
exceeded authorities provided under the
Clean Water Act, whereas others
 welcomed EMSs as an alternative to co-
 permitting. Environmental groups were
 concerned that reliance on EMS
 constituted a roll-back of rule
 requirements.
   EPA is not including an EMS as an
 option in this final rule. EPA recognizes,
 based on comments, that offering an
 EMS alternative made the rule more
 comple^ and was not entirely consistent
 with the Agency's goal to keep the rule
 simple, jeasy to understand and easy to
 implement. However, EPA supports the
 use of EMS by States, as appropriate. In
 today's rule, EPA is requiring that
 CAFOs develop and implement nutrient
 management plans that can help CAFOs
 manage jmanure and protect water
 quality. CAFOs may want to consider
 implementation of nutrient management
 plans asj part of a broader EMS to
 manage jthe specific impacts of excess
 nutrients. The CAFO's EMS would be
 broader than just a nutrient management
 plan, however, and would cover all
 media and both regulated and
 unregulated aspects.
   More Information on EPA's EMS
 policy, along with sector-specific EMS
 templates and  guidance is provided at
 www.epa.gov/ems.

 B. Howls EPA Coordinating With Other
 Federal Agencies?
   EPA and USDA are committed to
 working together to provide coordinated
 assistance to animal agriculture for the
 betterment of animal agriculture and the
 environment. The agencies are working
 togetherjto educate farmers, suppliers,
 USDA field representatives, consultants,
 and others on these new regulations.
 Both EP^. and USDA believe in the
 importance of providing education,
 training 'and technical assistance to all
 involved in animal agriculture that can
 play a role in helping farmers
 understand the new requirements and
 how they can meet them. EPA and
 USDA have different roles and different
 constituencies. EPA sets the
 requirehients, works toward compliance
 by industry, and enforces against
 noncompliance. USDA provides
 technical assistance, education, and
 training jto farmers, growers, and allied
 industries. This education, training, and
 technicajL assistance will be vitally
 important to CAFO operators as they
 work to come into compliance with the
 new regulations. The Natural Resource
 Conservation Service and the
 Cooperative State Research, Education,
 and Extension Service are the key USDA
 agencies; that will work with farmers to
 educate {hem on the requirements of the
EPA CAFO rule. USDA will continue to
 educate EPA personnel on the
intricacies of animal agriculture so that
 the Agency can improve its
 communication with this vital sector.
   There was significant comment on the
 proposed rule on how EPA and U:SDA
 should work together with farmers to
 implement this rule. Some thought the
 implementation should be left to USDA
 NRCS and CSREES. Others thought EPA
 and USDA should work together in the
 field in a coordinated effort to educate,
 regulate and assist AFOs and CAFOs.
 One commenter suggested that EPA
 monitor water quality and NRCS '
 provide technical assistance. A few
 comments asked that EPA join other
 federal agencies and conduct a
 comprehensive examination of the
 problems generated by CAFOs.
   EPA and USDA believe that only by
 working in close partnership will; the
 federal government provide the best
 service to farmers and the rest of the
 American public. It is EPA's intent and
 commitment to communicate and
 coordinate effectively across Agencies
 and Departments. Animal agriculture is
 important to this country, as is a sound,
 healthy environment. EPA and USDA
 believe these two goals can be jointly
 achieved.

 X. 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 a regulatory
 action is "significant" and therefore
 subject to OMB review and the
 requirements of the Executive Order.
 The Order defines a "significant :
 regulatory action" as one that is likely
 to result in a rule that may:
  1. Have an annual effect on the:
 economy of $100 million or more, or
 adversely affect in a material way the
 economy, a sector of the economy,
 productivity, competition, jobs, the
 environment, public health or safety,  or
 State, local, or Tribal governments or
 communities;
  2. Create a serious inconsistency or
 otherwise interfere with an action taken
 or planned by another agency;
  3. Materially alter the budgetary
 impact of entitlements, grants, user fees,
 or loan programs or the rights and
 obligations of recipients thereof; or
  4. Raise novel legal or policy issues
 arising out of legal mandates, the
President's priorities, or the principles
 set forth in the Executive Order.
  It has been determined that this rule
 is a "significant regulatory action''
under the terms of Executive Order
 12866. As such, this action was
submitted to OMB for review. Changes

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           Federal  Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and  Regulations      7253
made in response to OMB suggestions or
recommendations will be documented
in the public record.
B. Papertvork Reduction Act
  The Office of Management and Budget
(OMB) has approved the information
collection requirements contained in
this rule under the provisions of the .
Paperwork Reduction Act, 44 U.S.C.
3501 et seq. and has assigned OMB
control number 2040-0250. .,
  The information collection
requirements affect operations that are
defined or designated as CAFOs under
the final rule and, therefore, are subject
to the record keeping, data collection,
and reporting requirements associated
with applying for and complying with
an NPDES permit. They also affect the
43 States with approved NPDES
programs that  administer NPDES
permits for CAFOs ("approved States").
EPA and approved States use the
information routinely collected through
NPDES permit applications and
compliance evaluations in the following
ways: to issue NPDES permits with
appropriate limitations and conditions
that comply with the Clean Water Act;
to update information in EPA's
databases that permitting authorities use
to determine permit conditions; to
calculate national permit issuance,
backlog, and compliance statistics; to
evaluate national water quality; to assist
EPA in program management and other
activities that ensure national
consistency in permitting; to assist EPA
in prioritizing permit issuance
activities; to assist EPA in policy
development and budgeting; to assist
EPA in responding to Congressional and
public inquiries; and to ensure
compliance with the terms and
conditions of the permit.
  The responses to the information
collection requirements are mandatory
for CAFOs. CAFOs are denned as point
sources under the NPDES program (33
U.S.C. 1362). Under 33 U.S.C. 1311 and
1342, a CAFO must obtain an NPDES
permit and comply with the terms of
that permit, which include appropriate
record keeping and reporting
requirements. Furthermore, 33 U.S.C.
1318 provides authority for information
collection (i.e., record keeping,
reporting, monitoring, sampling, and
other information as needed), which
applies to point sources. Approved
States will also incur burden for record
keeping, data collection, and reporting
requirements when they revise and
implement any program changes
necessitated by the final rule. Under 40
CFR 123.62(e), State NPDES programs
must at all times be  in compliance with
federal regulations.
   CAFOs must develop their nutrient
management plans, retain them onsite,
and make them available to the
permitting authority on request. These
plans may contain confidential business
information. When this is the case, the
respondent can request that such:
information be treated as confidential.
All confidential data will be handled in
accordance with 40 CFR 122.7, 40 CFR
Part 2 (40 CFR 2.201 et seq.), and EPA's
Security Manual Part III,  Chapter*),
dated August 9,1976.
  EPA estimates that the average annual
public burden for this rule making will
be 1.9 million hours. This estimate
includes 0.3 million hours for State
respondents and 1.6 million hours for
CAFO  respondents. It includes the time
required to review instructions, search
existing data sources, gather and
maintain all necessary data, and
complete and review the information
collection. Table 10.1 provides the
breakdown of these estimates by type of
response. Average annual capital and
O&M costs will total $5.9 million. This
estimate includes $1.3 million in CAFO
capital costs to purchase sampling
equipment, install depth markers, and
purchase services for the engineering
portion of the nutrient management
plan. Average annual CAFO O&M costs
of $2.9 million include laboratory
analyses of soil and manure samples,
tractor rental, and record keeping, costs.
Average annual State O&M costs of $1.7
million pay for public notifications.
                                  TABLE 10.1.—BURDEN ESTIMATES PER RESPONSE
Activities
Response
frequency
Average an-
nual burden
(hours)
Average an-
nual
responses 1
Labor cost
($ millions)
                                                 CAFO Respondents
Start-up Activities . . 	
Permit Application Activities and NOIs 	
ELG and NPDES Data Collection and Record Keeping Activities:
visual inspections 	
Equipment inspection

Soil sampling 	
ELG and NPDES record keeping 	
Additional NPDES Record Keeping and Reporting Activities:
Manure transfer record keeping 	
Annual report 	 	 	
Compliance Inspections 	
One time 	
Every 5 years 	
Annual 	
Annual 	
Annual 	
Every 5 years 	
Annual 	
Every 5 years
Annual 	
Annual 	
Per inspection 	
14,493
43,479
152,260
32,238
26,088
31,057
936,982
250 168
102,858
11,712
9,370
4,831
4,831
11,712
8,060
11,712
3,613
11,712
4,831
• 7,347
11,712
2,342
$0.32
0.95
1.67
0.35
0.29
0.34
10.31
9.06
1.13
0.26
0.20
                                                 State Respondents
NPDES Program Modification Activities
General Permit Activities 	 j 	
Individual Permit Activities . . 	
Compliance Evaluation:
Annual Reports 	 	 	
One time 	
Annual 	
Annual 	
Annual 	
Annual 	
3,583
31,598
174,143
36,317
45,397
14
3,277
1,573
2,270
11,349
' 0.11
0.94
5.19
1.08
1.35
  1 For CAFOs, the number of respondents for each type of response equals the number of responses. For approved States, these estimates
 differ. There are 43 approved States responding to the information collection requirements, but the number of responses for some activities can
 be greater because the estimate depends on the number of CAFOs submitting information or undergoing inspections. EPA is the permitting au-
 thority for some CAFOs, so the response estimates for CAFOs and.States will differ.

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 7254     Federal Register/Vol.  68,  No. 29 / Wednesday, February  12,  2003/Rules and Regulations
  These burden and cost estimates have
been updated since the proposed rule to
reflect changes in the final rule. The
Agency received only a few comments
on the PRA section of the preamble for
the proposed rule. Most commenters
believed that the number of affected
operations was underestimated. EPA
revised its estimate of total AFO
operations and its estimate of affected
CAFO operations. The final rule
requirements results in fewer CAFOs
compared to the proposed rule
estimates.
  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 are listed
in 40 CFR Part 9 and 48 CFR Chapter
15. EPA is amending the table in 40 CFR
Part 9 of currently approved ICR control
numbers issued by OMB for various
regulations to list the information
requirements  contained in this final
rule.

C. Regulatory Flexibility Act
1. Background
  The RFA generally requires an agency
to prepare a regulatory flexibility
analysis for any rule subject to notice
and comment rulemaking requirements
under the Administrative Procedure Act
or any other statute unless the agency
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities.
Small entities include small businesses,
small organizations, and small
governmental jurisdictions.
  For purposes of assessing the impacts
of today's  rule on small entities, small
entity is defined as (I) A small business
based on annual revenue standards
established by the Small Business
Administration (SBA), with the
exception of one of the six industry
sectors where an alternative definition
to SBA's is used; (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 arid operated and is not
dominant in its field.
  For purposes of assessing the impacts
of today's rule on small entities in the
egg-laying sector, EPA considered small
entities in this sector as an operation
that generates less than $1.5 million in
annual revenue. A summary of EPA's
rationale and supporting analyses
pertaining to this alternative definition
is provided in the record and in section
4 of the Economic Analysis. See
discussiop under "Use of Alternative
Definition" later in this section. Because
this definition of small business is not
the definition established under the
RFA, EPA proposed using this
alternative definition in the Federal
Register and sought public comment.
See 66 FR 3099. EPA also consulted
with SBA Chief Counsel for Advocacy
on the usb of this alternative definition.
  In accordance with section 603  of the
RFA, EP.4 prepared an initial regulatory
flexibilit^ analysis (IRFA) for the
proposed rule and convened a Small
Business jAdvocacy Review (SBAR)
Panel to obtain advice and
recommeridations of representatives of
affected small entities in accordance
with section 609(b) of the RFA. See 66
FR.3121-3124; 3126-3128 (January 12,
2001). A detailed discussion of the
SBAR Panel's advice and
recommendations can be found in the
Final Report of the Small Business
Advocacy Review Panel on EPA's
Planned proposed Rule on National
Pollutant Discharge Elimination System
and Effluent Limitations Guideline
Regulations for Concentrated Animal
Feeding Operations, April 7, 2000. This
document is included in" the public
record (DpN 93001). The 2001 proposal
provides ^ summary of the Panel's
recommeridations. (See 66 FR 3121—
3124).
  As required by section 604 of the
RFA, EPA prepared a final regulatory
flexibility analysis (FRFA) for today's
final inlei The FRFA addresses the
issues raised by public comments  on  the
IRFA, whjch was part of the proposal
for this rule. The FRFA is available for
review in|the docket and is summarized
below.
2. Summary of Final Regulatory
Flexibility Analysis
  As required by section 604 of the
RFA, EPA also prepared a final  '-.
regulatory flexibility analysis (FRFA) for
today's rule. The FRFA addresses: the
issues raised by public comments, on the
IRFA, which was part of the proposal of
this rule. The FRFA is available for
review in the docket (in section 4; of the
final Economic Analysis). A summary is
provided below.
  a. Need for and objectives of the
regulations. A detailed discussiori of the
need for the regulations is presented in
section IV of the 2001  preamble (66 FR
2972-2976). A summary is also
provided in section 4 of the final
Economic Analysis. In summary, EPA's
rationale for revising the existing
regulations include the following:
address reports of continued discharge
and runoff from livestock and poultry
operations in spite of the existing
requirements; update the existing
regulations to reflect structural changes
in these industries over the past few
decades; and improve the effectiveness
of the existing regulations. A detailed
discussion of the objectives and legal
basis for the rule is presented in
sections I and m of the proposal
preamble (66 FR 2959).
  b. Significant Comments on the:IRFA.
The significant issues raised by public
comments on the IRFA address
exemptions for small businesses,
disagreement with SBA definitions and
guidance on how to define small
businesses for these sectors, and general
concerns about EPA's financial analysis
and whether it adequately captures
potential financial effects on small
businesses.
  Commenters generally recommend
that EPA exempt all small businesses
from regulation, arguing in some cases
that regulating small businesses could
affect competition in the marketplace,
discourage innovation, restrict
improvements in productivity, create
entry barriers, and discourage potential
entrepreneurs from introducing
beneficial products and processes.
Several commenters claimed that 3PA
had misrepresented the number bl small
businesses. In particular, several .
commenters objected to SBA's small
business definition for dairy operations,
claiming it understates the number of
small businesses in this sector. One
commenter claimed that EPA's estimate
of the total number of operations is
understated and therefore must
understate the number of small
businesses. Some commenters objected
to the consideration of total farm-level
revenue to determine the number of

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           Federal Register/Vol. 68, No. 29/Wednesday, February 12,  2003/Rules and Regulations      7255
small businesses since this understates
the number of small businesses (despite
SBA guidance, which bases its
definitions on total entity revenue for
purposes of defining a small business).
However, other commenters claimed
that EPA's approach to its small
business analysis does not only capture
operations that are, in fact, small
businesses but also larger corporate
operations. Another commenter
recommended that EPA simply consider
any operation with fewer than 1,000
animal units a small business. EPA also
received comments requesting that EPA
consider use of regional-specific
definitions of small business because of
concerns that the revenue-based SBA
definition might not be applicable to
operations in Hawaii since producers in
that State generally face higher cost of
production and also higher producer
prices relative to revenue and cost
conditions at farms in the contiguous 48
States. Comments from SBA
recommended that EPA adopt the
Panel's recommendation not to consider
changing the designation criteria for  .
operations with fewer than 300 animal
units as a means to provide relief to
small businesses. SBA also
recommended that EPA adopt the SBAR
Panel's approach and allow permitting
authorities to focus resources where
there is greatest need. Finally, some
commenters generally questioned the
results of EPA's financial analysis,
giving similarly stated concerns about
EPA's financial data and models used
for its main analysis.
  In response, EPA notes that the
projected impacts of today's final
regulations on small businesses are
lower than the projected impacts of the
proposed rule. For example, the final
rule does not extend the effluent
guideline regulations to Medium
CAFOs, as was proposed in the 2001
proposal. Instead, EPA is retaining the
existing regulatory threshold, applying
the effluent guideline to Large CAFOs
only. Requirements for Medium CAFOs
will continue to be subject to the BPJ
requirements as determined by the
permitting authority, thus requiring that
fewer small businesses adopt the
effluent guideline standards. More
information on this topic is available in
section IV of this preamble. Section IV
discusses other regulatory changes since
the 2001 proposal, indicating greater
alignment with SBAR Panel
recommendations. Refer to section IV of
this preamble for more information on
the comments and EPA's responses to
those comments, as well as EPA's
justification for final decisions on these
options.
  Regarding EPA's estimate of the
number of small businesses, the Agency
continues to follow SBA guidance and
SBA definitions on how to define small
businesses for these sectors. However,
EPA has made substantial changes to
the financial data and models used for
its main analysis, which is also used to
evaluate financial effects on small
businesses. Both the 2001 Notice (66 FR
58556) and the 2002 Notice (67 FR
48099) describe the public comments
received by EPA on the baseline
financial data and the methodological
approach developed by EPA to evaluate
financial effects. These comments and
how EPA has addressed them are
discussed more fully in section 4 of the
final Economic Analysis. EPA's detailed
responses to comments, and the
comments themselves, are contained in
the Comment Response Document in
response categories SBREFA and Small
Business.
  c. Description and estimation of
number of small entities to which the
regulations will apply. The small
entities subject to this rule are small
businesses. No nonprofit organizations
or small governmental operations
operate CAFOs. As discussed in section
Vin.B.l(c) of this preamble, to estimate
the number of small businesses affected
by this final rule, EPA relied on the SBA
size standards for these sectors, with the
exception of size definitions for the egg
sector. SBA defines a "small business"
in these sectors as an operation with
average annual revenues of less than
$0.75 million for dairy, hog, broiler, and
turkey operations; $1.5 million in
revenue for beef feedlots; and $9.0
million for egg operations. The
definitions of small business for the
livestock and poultry industries are in
SBA's regulations at 13 CFR 121.201.
For this rule, EPA proposed and
solicited public comment on and is
using an alternative definition for small
business for egg-laying operations. EPA
defines a "small" egg laying operation
for purposes of its regulatory flexibility
assessments as an operation that
generates less than $1.5 million in
annual revenue. EPA consulted with
SBA on the use of this alternative
definition, as documented in the
rulemaking record for the 2001
proposal. Given these definitions, EPA
evaluates "small business" for this rule
as an operation that houses or confines
fewer than 1,400 fed beef cattle
(includes fed beef, veal, and heifers);
300 mature dairy cattle; 2,100 market
hogs; 37,500 turkeys; 61,000 layers; or
375,000 broilers. The approach used to
derive these estimates is described in
the Economic Analysis and in the
record.                        •
  Using these definitions and available
data from USDA and industry, EPA
estimates that 6,200 of affected CAFOs
across all size categories are small
businesses. Among Large CAFOs,; EPA
estimates that about 2,330 operations
are small businesses. Among Medium
CAFOs, EPA estimates that about;3,870
operations are small businesses. Table
8.3 in section VTH of this preamble
shows EPA's estimates of the number of
regulated small businesses across all
industry sectors. Section VHI.B.l(c)
provides more detail on the estimated
financial effects on small businesses
under the final rule.
  d. Description of the reporting, record-
keeping, and other compliance
requirements. Today's rule would
require all AFOs that meet the CAFO
definition to apply for a permit, develop
and implement a nutrient management
plan, collect and maintain records
required by applicable technology-based
effluent discharge standards, and submit
an annual report to the responsible
NPDES permitting authority. (No
nonprofit organizations or small
governmental operations operate
CAFOs.) All CAFOs would also be
required to maintain records of off-site
transfers of manure. Record-keeping and
reporting burdens include the time to
record and report animal inventories,
manure generation, field application of
manure (amount, method, date, weather
conditions), manure and soil analysis
results,  crop yield goals, findings >iom
visual inspections of feedlot areas, and
corrective measures. Records may
include manure spreader calibration
worksheets, manure application
worksheets, maintenance logs, and soil
and manure test results. EPA believes
the owner/operator has the skills
necessary to keep these records and
make reports to the permitting
authority.
  Section X.B further summarizes the
expected reporting and record-keeping
requirements under the final regulations
based on information compiled as part
of the ICR for the Final NPDES and ELG
Regulatory Revisions for Concentrated
Animal Feeding Operations (EPA ICR
No. 1989.01) prepared by EPA.
  e. Steps taken to minimize significant
impacts on small entities. In today's
final rulemaking, EPA has adopted an
approach for a regulatory program that
mitigates impacts on small business,
recognizes  and promotes effective non-
NPDES State programs, and works in
partnership with USDA to promote
environmental stewardship through
voluntary programs, and financial and
technical assistance. EPA's proposal

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  7256     Federal Register /Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations
 included many options that were not
 finally adopted in deference to these
 principles.
   Because of the estimated impacts on
 small entities EPA is not certifying that
 this rule will not impose a significant
. impact on a substantial number of small
 entities. EPA has complied with all RFA
 provisions and conducted outreach to
 small businesses, convened a SBAR
 panel, prepared an Initial Regulatory
 Flexibility Analysis (IRFA) and a Final
 Regulatory Flexibility Analysis (FRFA),
 and also prepared an economic analysis.
 The Agency's actions include the
 following efforts to minimize impacts
 on small businesses:
   • Retained structure of existing
 regulations,  which allows EPA and
 states to focus on the largest producers;
   • Retained applicability of effluent
 guidelines for Large CAFOs only;
   • Retained existing designation
 criteria and process;
   • Retained existing definition of an
 AFO;
   • Retained conditions for being
 denned as a Medium CAFO;
   • Eliminated the "mixed" animal
 calculation for operations with more
 than a single animal type for
 determining which AFOs are CAFOs;
   • Raised the duck threshold for dry
 manure handling duck operations; and
   • Adopted a dry-litter chicken
 threshold higher than proposed.
   EPA went to some length to explore
 and analyze  a variety of ELG regulatory
 alternatives to minimize impacts on
 small businesses. The record for today's
 rule includes extensive discussions of
 the alternatives, EPA's analysis of those
 alternatives,  and the rationale for the
 Agency's decisions. In large part, the
 Agency incorporated most of the
 alternative considerations to reduce the
 burden to small businesses. By way of
 example, today's regulations will affect
 fewer small businesses at significantly
 reduced costs, as compared to the
 estimates of the number of small
 businesses and expected .costs to those
 businesses based on the requirements
 set forth in the 2001 proposal. For more
 information on EPA's option selection
 rationale, see section IV of this
 preamble.

 3. Compliance Guide
   As required by section 212 of
 SBREFA,  EPA is also preparing a small
 entity compliance guide to help small
 businesses comply with this rule. To
 request a copy,  contact one of the
 persons identified  in the FOR FURTHER
 INFORMATION CONTACT section at the
 beginning of  this preamble. EPA expects
 that the guide will be available in March
 2003.
 4. Use of; Alternative Definition
   The RFA defines small entitles as
 including small businesses, small
 governmental jurisdictions, and small
 organizations. The statute provides
 default definitions for each type of small
 entity. It Jalso authorizes an agency to
 use alternative definitions for each
 category bf small entity, "which are
 appropriate to the activities of the
 agency" after proposing the alternative
 definition(s) in the Federal Register and
 taking comment. 5 U.S.C. 601(3)-(5). In
 addition to the above, to establish an
 alternative small business definition,
 agencies Jnust consult with SBA's Chief
 Counsel for Advocacy.
   As stated above, EPA proposed
 defining ''small entity" for purposes of
 its regulatory flexibility assessments
 under the RFA as an operation that
 generates; less than $1.5 million in
 annual revenue. The Agency also
 consulted with SB A Chief Counsel for
 Advocacy. See 66 FR 2959, (January 12,
 2001).
   EPA received two comments from the
 same commenter requesting that EPA
 not use the alternative definition for
 egg-laying operations but instead
 consider regional-specific conditions for
 determining the number of small
 businesses. The commenter expressed
 concern  that SBA's revenue-based
 definition might not be applicable to
 operations in Hawaii since producers in
 that State| generally face higher cost of
 productidn and also higher producer
 prices relative to revenue and cost
 condition^ at farms in the contiguous 48
 States. There are a number of reasons
 why EPAJdid not use a regional-specific
 definition of small business for egg
 operations. First, consistent with the
 RFA, EPA uses small business
 definitions as defined by the SBA
 except in leases where EPA consults
 with the  SBA Chief Counsel for
 Advocacy. Since size standards set by
 the SBA  do not vary by region, EPA
 follows SBA's lead. Second, the
 regulations set requirements by the
 number of animal units at a farm, not
 the revenues associated with those
 animal units. An 82,000 bird egg-laying
 operation! in the Midwest will be subject
 to the same effluent limitations
 guidelines as a 82,000 bird egg-laying
 operationiin Hawaii and the territories.
 Third, the economic analysis, uses a
 representative farm approach. Only the
 broadest  regional information could be
 obtained through USDA and other
 sources. Although some small
 subregions or localities might face
unique issues, without performing a
 Section 308 survey of all regulated
entities EI>A must rely on the
 representative farm approach. (See also
 response to comment DCN      :
 CAFO201246-C-6 regarding EPA's use
 of a representative farm approach,
 which is consistent with longstanding
 practices at USDA and the land grant
 universities.) Note however, that
 although EPA uses a single definition of
 small business across all regions, EPA's
 representative farm analysis of small
 business impacts does account for some
 regional variation in costs and revenues.
 Fourth, very few impacts are seeri in the
 egg-laying sector, regardless of size.
 Even if EPA had classified the majority
 of egg-laying operations with less; -ban
 1,000 AU as small businesses,  this
 would not have changed the outcome of
 the Agency's small business analysis in
 any material way. Finally, even if EPA
 were to classify all operations as small
 businesses in areas outside the
 contiguous 48 States (including Hawaii
 and Alaska), this would only raise the
 total number of small business by less
 than 10 operations. See response to
 comment DCN CAFO NODA 600053-5
 regarding EPA's consideration of:
 regional-specific definition of small
 business for the regulated sectors;
   Today, EPA is establishing this
 alternative definition of "small entity"
 for the egg-laying sector for purposes of
 the regulatory flexibility analysis for
 this rule.

 D. Unfunded Mandates Reform Act
   Title H of the Unfunded Mandates
 Reform Act of 1995 (UMRA), Pub. L.
 104-4, established requirements for
 federal agencies to assess the effects of
 their regulatory actions on State, Tribal
 and local 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, Tribal and
 local governments, in the aggregate, or
 to the private sector, of $100 million or
 more in any one year.
  Before promulgating an EPA rule for
 which a written statement is needed,
 section 205 of the UMRA generally
 requires EPA to identify and consider a
 reasonable number of regulatory '
 alternatives and adopt the least costly,
 most cost-effective or least burdensome
 alternative that achieves the objectives
 of the rule. The provisions of section
 205 do not apply when they are i
 inconsistent with applicable law.
 Moreover, section 205 allows EPA to
 adopt an alternative other than the least
 costly, most cost-effective or least
burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative

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           Federal  Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules  and Regulations      7257
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
regulatory requirements.
  EPA has determined that this rule
contains  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. EPA
revised the unfunded mandates analysis
for State  costs based on comments
received. EPA expanded the categories
of costs and increased the unit costs and
hour burden while the final rule
significantly decreased the number of
potential permittees. Because the
revisions were largely offsetting, there is
little change in the overall burden
estimated ($8 million annually at
proposal and §9 million annually for the
final rule). Accordingly, EPA has
prepared under section 202 of the
UMRA a written statement, which is
summarized below. See section 5 of the
Economic Analysis for the complete
section 202 statement.

1. Private Costs

   This statement provides quantitative
cost-benefit assessment of the federal
requirements imposed by today's final
rules. In large part, the private sector,
not other governments, will incur the
costs. EPA estimates total compliance
costs to  industry of $326 million per
year (pre-tax, 2001 dollars). EPA
estimates that the monetized benefits of
the final regulations range from $204
million to $355 million annually.
Section VHT.C.l of this preamble
provides additional information on
EPA's analysis. The analysis is provided
in section 5 of the Economic Analysis
and other supporting information is
provided in the Benefits Analysis
 supporting the final regulations. Both of
 these support documents are available
 in the administrative record for this
 rulemaking. A summary of these
 analyses is provided in section's VII and
 Vm of today's preamble.
2. State Local and Tribal Government
Costs
  Authorized States are expected to
incur costs to update their State NPDES
programs to conform to the final rule
and implement the revised standards
through issuing NPDES permits and
inspecting CAFOs to ensure
compliance. The total average annual
State administrative cost to implement
the permit program, approximately $9
million, will not exceed the thresholds
established by  the UMRA. The analysis
underlying this cost estimate is in the
NPDES Technical Support Document
found in the rule record. EPA has
determined that this rule contains no
regulatory requirements that might
significantly or uniquely affect local or
Tribal governments. There are no local
or Tribal governments authorized to
implement the NPDES permit program
and the Agency is unaware of any local
or Tribal governments who are owners
or operators of CAFOs. Thus today's
rule is not subject to the requirements
of Section 203  of UMRA.
3. Funding and Technical Assistance
Available to CAFOs
  The 2002 Farm Bill authorized cost-
share funding  for six years (2002
through 2007)  for EQIP. Funding starts
at $400 million in 2002 and continually
increases to $1.3 billion in the last year.
Sixty percent of this funding is to be
targeted to animal agriculture, including
large and small feedlots, as well as
pasture and grazing operations. An
operation is eligible for a total of up to
$450,000 over the six year time frame.
This funding is open to both CAFOs and
AFOs. Being defined as a CAFO does
not make you  ineligible for this funding.

4. Funding Available to States
   States may be able to use existing
sources of financial assistance to revise
and implement the final rule. Section
106 of the Clean Water Act authorizes
EPA to  award  grants to States, Tribes,
intertribal consortia, and interstate
agencies for administering programs for
the prevention, reduction, and
elimination of water pollution. These
grants may be used for various activities
to develop and carry out a water
pollution control program, including
permitting, monitoring, and
 enforcement. Thus, State and Tribal
NPDES permit programs represent one
type of State program that can be funded
by section 106 grants.
   Key comments received on Unfunded
 Mandates relate to the increased cost to
 farmers and States and the need for
 funds for CAFO compliance and State
 permitting. In jthe discussion above,
EPA outlines the funding available to
CAFO owners (EQIP) and to States
(CWA section 106 grants) to help meet
this rule's mandates.            •
E. Executive Order 13132: Federalism
  Executive Order 13132, entitled
"Federalism" (64 FR 43255, August 19,
1999), requires EPA to develop ari
accountable process to ensure
"meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications." "Policies that have
federalism implications" is defined in
the Executive Order to include
regulations that have "substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various  levels of government."
  This 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 does not
consider an annual impact of
approximately $9 million on States a
substantial effect. In addition, EPA does
not expect this rule to have any impact
on local governments.          '.
  Further, the revised regulations would
not alter the basic State-federal scheme
established in the Clean Water Act
under which EPA authorizes States to
carry out the NPDES permitting  •
program. EPA expects the revised.
regulations to have little effect on; the
relationship between, or the distribution
of power and responsibilities among,
the federal and State governments.
Thus, Executive Order 13132 does not
apply to this rule.
   In the spirit of Executive  Order 13132,
and consistent with EPA's policy to
promote communications between EPA
and State and local governments, EPA
specifically solicited comment on the
proposed rule from State and local
 officials.
   During public comment, EPA received
comments on its analysis required
under the Federalism Executive Order.
The comments were that the Agency
had underestimated the cost impacts of
the rule on States. In response to these
 comments, EPA reanalyzed the impacts
 on States.
 F. Executive Order 13175: Consultation
 and Coordination With Indian Trjbal
 Governments
   Executive Order 13175, entitled
 "Consultation and Coordination with

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  7258      Federal Register/Vol. 68, No.  29 / Wednesday, February 12, 2003/Rules and Regulations
  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." "Policies that have tribal
  implications" is defined in the
  Executive Order to include regulations
  that have "substantial direct effects on
  one or more Indian tribes, 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.''
   This final 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.
 First, no Tribal governments have been
 authorized to issue NPDES permits.
 Second, few CAFO operations are
 located on Tribal lands. Accordingly,
 the requirements of Executive Order
 13175 do not apply to this rule.
   Although Executive Order 13175 does
 not apply to this rule, EPA has briefed
 Tribal communities about this
 rulemaking at the National
 Environmental Justice Advisory
 Committee meeting in Atlanta, Georgia
 in June, 2000 and through notices in
 Tribal publications. In addition, EPA
 Regional Offices discussed this
 rulemaking with the Tribes in their
 regions.
   During the public comment period,
 the Agency received no comments from
 Tribes or comments relating to tribal
 issues.

 G. Executive Order 13045: Protection of
 Children From Environmental Health
 Risks and Safety Risks
  Executive Order 13045 (62 FR 19885,
 April 23,1997) applies to any rule that:
 (1) Is determined to be "economically
 significant" as defined under Executive
 Order 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 final rule is subject to Executive
Order 13045 because it is an
economically regulatory action as
  denned by Executive Order 12866, and
  we believfe that the environmental
  health or safety risk addressed by this
  action may have a disproportionate
  effect on children. Accordingly, we have
  evaluated'the environmental health or
  safety effects of increased nutrients,
  pathogens, and metals in surface water
  on children. The results of this
  evaluation are contained in the
  proposed Environmental Assessment,
  which is p| art of the public record for
  this, final rule.
   EPA has established a maximum
  contaminate level for nitrates in
  drinking water at 10 micrograms/liter.
  There is some evidence that infants
  under the 'age of six months may be at
  risk from methemoglobinemia caused by
  nitrates ini private drinking water wells
  when ingesting water at nitrate levels
 higher thah 10 micrograms/liter. The
 Agency has estimated the reduction in
  the number of households that will be
  exposed to drinking water with nitrate
 levels aboye 10 micrograms/liter in
 Chapter 8 jaf the Benefits Assessment
 (noting that the Agency does not have
 information on the number of
 households exposed to nitrates that also
 have infants). The Agency estimates that
 there are approximately 13.5 million
 households with drinking water wells in
 counties with animal feeding
 operations'. Of these, the Agency
 estimates that approximately 1.3 million
 households are exposed to nitrate levels
 above 10 micrograms/liter. The Agency
 further estimates that approximately
 112,000 households would have their
 nitrate levels brought below 10
 microgramb/liter under the
 requirements of this final rule. The
 Agency estimates that options more
 stringent than these would provide only
 small incremental changes in pollutant
 loadings tq groundwater (see the
 Technical Development Document]. The
 Agency therefore does not believe that
 requirements more stringent than these
 in the rule would provide meaningful
 additional protection of children's
 health risks from methemoglobinemia.
  The Agency received no comments on
 the impacts to children's health.
 H. Executive Order 13211: Actions That
 Significantly Affect Energy Supply,
 Distribution, or Use
  The rule is not a "significant energy
 action" as defined in Executive Order
 13211, Actions Concerning Regulations
 That Significantly Affect Energy Supply,
 Distribution, or Use" (66 FR 28355,  May
 22, 2001) because it is not likely to have
 a significant adverse effect on the
 supply, distribution, or use of energy.
EPA has concluded that this rule is not
likely to have any adverse energy
  effects. While there will be a minor
  increase in energy use from increased
  hauling of manure to offsite locations,
  EPA has estimated the increased fuel
  usage associated with transporting
  manure, litter, and other process ;
  wastewaters off site is approximately
  423,000 barrels annually for all CAFOs.
  EPA does not believe that this will have
  a significant impact on the energy
  supply.

  I. National Technology Transfer and
  Advancement Act             <
   As noted in the proposed rule, 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 !
 standards bodies. The NTTAA directs
 EPA to provide Congress, through OMB,
 explanations when the Agency decides
 not to use available and applicable
 voluntary consensus standards.  :
   This rulemaking does involve the use
 of technical standards. In this
 rulemaking, EPA has developed
 regulatory standards for controlling
 pollutant discharges from permitted
 CAFOs based on its expertise,
 professional judgment, and the
 extensive record developed, in part,
 through the APA's notice and comment
 process. While we identified the
 American National Standards for:Good
 Environmental Livestock Production
 Practices, developed by the National
 Pork Producers Council and certified by
 ANSI as an American National Standard
 on February 20, 2002 (GELPP OOQ1-
 2002; 0002-2002; 0003-2002; 0004-
 2002; 0005-2002), and a commenter has
 identified ANSI/ASCE 7-98, a separate
 voluntary consensus standard, as:being
 potentially applicable, we have decided
 not to use them in this rulemaking. The
 use of these voluntary consensus •
 standard would have been impractical
 because EPA's rule establishes a
 regulatory framework in which
 decisions as to what specific best
 management practices must be applied
 at individual animal feeding operations
 is generally left to the State in the
 exercise of its authority to issue NPDES
 permits. In issuing permits, States may
 consider these ANSI-certified standards
 and include, or not include, various
elements as they may deem appropriate.
It would not have been consistent with

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           Federal  Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations 	 7259
EPA's design for this rule to adopt these
ANSI-certified standards as national
minimum requirements for all States to
incorporate into all permits for covered
animal feeding operations. EPA received
a number of comments suggesting that
EPA should specifically include the
GELPPs and ANSI/ASCE 7-98 as
authorized alternative management  .
standards in the final CAFO rule.  EPA
decided not to do so for the reasons
discussed above.
  In any event, it is important to note
that the standards set out in this rule
may be better characterized as
representing regulatory decisions EPA is
directed to make by the Clean Water
Act, rather than as "technical
standards". Consistent with Section 6(c)
of OMB Circular A-119, EPA would not
be obliged to consider the use of
voluntary consensus standards as
possible alternatives to the regulatory
standards being adopted.
  It should be noted that the effluent
guideline rule (40 CFR 412) provides for
voluntary alternative performance
standards developed and applied in
NPDES permits on a site-specific  basis.
CAFOs that voluntarily develop and
adopt such performance standards in
their NPDES permits may need to use
previously approved technical
standards to analyze for some or all of
the following pollutants: nitrogen,
phosphorus, BOD, and TSS. Consensus
standards have already been
promulgated in tables at 40 CFR 136.3
for measurement of all of these analytes.
  Further, the rule specifically provides
that the determination of land
application rates for manure is to be
done in accordance with technical
standards established by the State. In
establishing such standards, States may
rely on standards already established by
USDA or other existing standards or
may develop new standards.

J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
  In implementing the requirements of
the Environmental Justice Executive
Order, EPA reviews the environmental
effects of major federal actions
significantly affecting the quality of the
human environment. For such actions,
EPA reviewers focus on the spatial
distribution of human health, social and
economic effects to ensure that agency
decisionmakers are aware of the extent
to which those impacts fall
disproportionately on covered
communities. EPA has determined that
this rulemaking is a major federal
action. However, the Agency does not
believe this rulemaking will have, a
disproportionate effect on minoritv or
low-income communities. The pri-posed
regulations will reduce the negative
effects of CAFO waste in the nation's
waters to benefit all of society,   ;
including minority communities.:

K. Congressional Review Act

  The Congressional Review Act,' 5.
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act (SBREFA) of 1996,  ,
generally provides that before a rile
may take effect, the agency
promulgating the rule must submit a
rule report, which includes a copy of
the rule, to each House of the Congress
and to the Comptroller General of the
United States. EPA will submit a report
containing this rule and other required
information to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule can
not take affect until 60 days after it is
published in the Federal Register. This
will be effective April 14, 2003. This
action is a "major rule" as defined by
5 U.S.C. 804(2).
BILLING CODE 6560-50-P

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726O      Federal Register/Vol. 68,  No.  29/Wednesday, February 12,  2003/Rules and  Regulations
                                                 APPENDIX - FORM 2B
                                                                                                         . Form Approved
                                                                                                       OMB No, 2040-0250
                                                                                                   Approval expires I2-1S-OS
                   FORM
                    2B
                   NPDES
                                             EPA LD. NUMBER (copyfrom Item I of Form 1)
                             U.S. ENVIRONMENTAL PROTECTION AGENCY
EPA              i   APPLICATIONS FOR PERMIT TO DISCHARGE WASTEWATER
             CONCENTRATED ANIMAL FEEDING OPERATIONS AND AQUATIC ANIMAL PRODUCTION
                                           FACILITIES
               I. GENERAL INFORMATION      Applyjngfor: Individual Permit P  Coverage Under General Permit D
               A. TYPE OF BUSINESS
              Q  I. Concentrated Animal Feeding
                    Operation (complete items B, C,
                    D, and Section II)

              Q  2. Concentrated Aquatic Animal
                    Production Facility (complete
                    items B, C, and section III)
                                                         B. CONTACT INFORMATION
                Owner/or
                Operator Name:
                Telephone: (	
                Address: 	
                Facsimile: (	
                City: 	
        State:  	Zip Code:
                                                                    C. FACILITY
                                                                OPERATION STATUS
                                       Q I. Existing Facility

                                       Q 2. Proposed Facility
               A. FACILITY INFORMATION
               Name:	
               Address:
               City: 	
               County:
                    . i State:
              . Latitud^:
             Telephone: ( 	 ) _
             Facsimile:  (	 ) 	
            	  Zip Code: 	
            	Longitude:
               If contract operation: Name of Integrator: _
                                Address of Integrator: _
               II. CONCENTRATED ANIMAL FEEDING OPERATION CHARACTERISTICS
               A. TYPE AND NUMBER OF ANIMALS
               l.TYPE
               Q  Mature Dairy Cows
               O  Dairy Heifers
               Q  Veal Calves
               Q  Cattle (not dairy or
                  veal)
               Q  Swine (55 Ib. or over)
               Q  Swine (under 55 Ib.)
               Q  Horses
               Q  Sheep or Lambs
                                               2. ANIMALS
       NO. IN OPEN
      CONFINEMENT
NO. HOUSED
UNDER ROOF
                                       B. Manure, Litter and/or Wastewater Production and Use
a)  How much manure, litter and wastewater is generated
   annually by the facility? 	 tons 	
   gallons
b)  If land applied how many acres of land under the
   control of the applicant are available for applying the
   CAFOs manure/litter/wastewater? 	
   acres
c)  How many tons of manure or litter, or gallons of
   waste-water produced by the CAFO will be
   transferred annually to other persons? tons/gallons
   (circle one)
             EPA Form 35IO-2B (12-02)

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 Federal Register/Vol. 68,  No.  29/Wednesday, February  12, 2003/Rules and Regulations       7261
                                                                                             Form Approved
                                                                                         OMB No, 2040-0250
                                                                                      •Approval expires 12-15-05
  Q Turkeys
  Q Chickens (Broilers)
  Q Chickens (Layers)
  Q Ducks
  Q Other
     Specify
  3. TOTAL ANIMALS
  C. Q TOPOGRAPHIC MAP
  D. TYPE OF CONTAINMENT, STORAGE AND CAPACITY
  1. Type of Containment
  Q   Lagoon
  Q   Holding Pond
  Q   Evaporation Pond
  Q   Other Specify
      Total Capacity (in gallons)
  2. Report the total number of acres contributing drainage:
  3. Type of Storage
  Q   Anaerobic Lagoon
  Q   Storage Lagoon
  Q   Evaporation Pond
  Q   Abovcgrcund Storage Tanks
  Q   Belowground Storage Tanks
  Q   Roofed Storage Shed
  Q    Concrete Pad
  Q    Impervious Soil Pad
  Q    Other: Specify
Total Number, of
    Days
EPA Form 3510-2B (12-02)

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7262       Federal Register /Vol. 68,  No. 29 / Wednesday, February 12, 2003/Rules  and Regulations
                                                                                                                Form Approved
                                                                                                            OMB No, 2040-Q250
                                                                                                        Approval expires 12-15-05
               E.  NUTRIENT MANAGEMENT PLAN         j

                  A. Has a nutrient management plan been developed?  D Yes   Q No

                  B. Is a nutrient management plan being implemented for the facility? D Yes  D No

                  C. If no, when will the nutrient management plan be developed? Date:  	

                  D. The date of the last review or revision of the nutrient management plan. Date:	
                  E.  If not land applying, describe alternative use(s) of manure, litter and or wastewater:
               F.  LAND APPLICATION BEST MANAGEMENXPRACTICES
                  Please check any of the following best management practices that are being implemented at the facility to control runoff and
                  protect water quality:                       |
                                                          i
                  Q Buffers   Q Setbacks   Q Conservation tillage  Q Constructed wetlands   Q Infiltration field   Q Grass filter
                  Q Terrace                                i
               HI. CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITY CHARACTERISTICS
               A. For each outfall give the maximum daily flow, maximum
                  30- day flow, and the long-term average flow.
               1. Outfall
               No.
2. Flow (gallons per day)
                                 a.
                             Maximum.
                                Daily
         b.
      Maximum
       30 Day
Long Term
 Average
                                 B.  Indicate the total number of ponds, raceways, and similar
                                    structures in your facility.
              1. Ponds
                  2. Raceways
3. Other
C. Provide the name of the receiving water and the source of
   water used by your facility.
                                                                      1. Receiving Water
                                                                                                2. Water Source
               D. List the species offish or aquatic animals held and fed at your facility. For each species, give the total weight produced by
                  your facility per year in pounds of harvestable weight, and also give the maximum weight present at any one time.
                                1. Cold Water Species
                      a. Species
    b. Harvestable Weight
    (pounds)
                                              (1)
                                          Total Yearly
                     !  (2)
                    Maximum
               E.  Report the total pounds of food during the calendar month
                  of maximum feeding.                >       {
                                                 2. Warm Water Species
                     a. Species
                                 1. Month
                          b. Harvestable Weight
                          (pounds)
                                            (1)
                                        Total Yearly
                                             (2)
                                          Maximum
                                                           2. Pounds of Food
             EPA Form 3510-28(12-02)

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Federal Register /Vol. 68, No.  29/Wednesday,  February  12,  2003/Rules  and Regulations      7263
                                                                                    Foim Approved
                                                                                 OMB No, 2040-0250
                                                                              Approval expires 12-15-05
IV. CERTIFICATION
/ certify under penalty of law that I have personally examined and am familiar with the information submitted in this application
and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, 1
believe that the information is true accurate and complete. I am aware that there are significant penalties for submitting false
Information, including the possibility of fine and imprisonment.
A. Name and Official Title (print or type)
C. Signature
B. Phone No. ( )
D. Date Signed
EPA Form 3510-2B (12-02)

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 7264         Federal  Register/Vol.  68,  No.  29/Wednesday,  February  12,  2003/Rules  and Regulations
                                                                                                                                           Form Approved
                                                                                                                                      OMB No, 2040-0250
                                                                                                                                  Approval expires 12-15-05
                                                                             INSTRUCTIONS
                     GENERAL
                     This form must be completed by all applicants who check "yes" to
                     Item Il-B in Form 1. Not all animal feeding operations or fish farms are
                     required to obtain NPDES permits. Exclusions are based on size. See
                     the description of these statutory and regulatory exclusions in the General
                     Instructions that accompany Form 1.
                     For aquatic animal production facilities, the size cutoffs are based on
                     whether the species are warm water or cold water, on the production
                     weight per year in harvestable pounds, and on the amount of feeding in
                     pounds of food (for colil water species).  Also, facilities which discharge
                     less than 30 days per year, or only during periods of excess runoff (for
                     warm water fish) are not required to have a permit.        \
                     Refer to the Form 1 instructions to determine where to file Ibis form.
                     Item I-A                                            '
                     See the note above and the General Instructions which accompany Form
                     1 to be sure that your facility is a "concentrated animal feeding
                     operation" (CAFO).
                     Item I-B
                     Use this space to give owner/operator contact information.  !
                     Item I-C
                     Check "proposed" if your facility is not now in operation or is expanding
                     to meet the definition of a CAFO in accordance with the information
                     found in the General Instructions that accompany Form 1.
                     Item I-D                                            I
                     Use this space to give a complete legal description of your facility's
                     location including name, address, and latitude/longitude. Also, the if a
                     contract grower, the name and address of the integrator.     i
                     Item II
                     Supply all information in item II if you checked (1) in item I-J\.
                     Item II-A
                     Give the maximum number of each type of animal in open confinement or
                     housed under roof (either partially or totally) which are held at your
                     facility for a total of 45 days or more in any 12 month period. Provide the
                     total number of animals confined at the facility.          •  j
                     Item II-B
                     Provide the total amount of manure, litter and wastewater generated
                     annually by the facility.  Identify if manure, litter and wastew'ater
                     generated by the facility is to be land applied and the numberof acres,
                     under the control of the CAFO operator, suitable for land application. If
                     the answer to question 3 is yes, provide the estimated annual quantity of
                     manure, litter and wastewater that the applicant plans to transfer off-site.
                     Item II-C                                            !
                     Check this box if you have submitted a topographic map  of the
                     geographic area in which the CAFO is located showing the specific
                     location of the production area.                         ;
 Item II-D
 1. Provide information on the type of containment and the capacity of the
 containment structure (s).
 2. The number of acres that are drained and collected in the containment
 structure (s).
 3. Identify the type of storage for the manure, litter and/or wastewater.
 Give the capacity of this storage in days and gallons or tons.
 Item II-E
 Provide information concerning the status of the development and
 implementation of a nutrient management plan for the facility. In those
 cases where the nutrient management plan has not been completed,
 provide an estimated date of development and implementation. If not
 land applying, describe the alternative uses of the manure, litter and
 wastewater (e.g., composting, pelletizing, energy generation, etc.).
 Item 1I-F
 Check any of the identified conservation practices that are being
 implemented at the facility to control runoff and protect water quality.
 Item HI
 Supply all information in Item III if you checked (2) in Item I-A.
 Item III-A
 Outfalls should be numbered to correspond with the map submitted in
 Item XI of Form 1. Values given for flow should be representative of
 your normal operation. The maximum daily flow is the maximum
 measured flow occurring over a calendar day. The maximum 30-day
 flow is the average of measured daily flow over the calendar month of
 highest flow. The long-term average flow is the average of measure daily
 flows over a calendar year.
 Item  HI-B
 Give the total number of discrete ponds or raceways in your facility.
 Under "other," give a descriptive name of any structure which is not a
 pond or a raceway but which results in discharge to waters of the United
 States.
 Item  III-C
 Use names for receiving water and source of water which correspond to
 the map submitted in Item XI of Form 1.
 Item IH-D
 The names offish species should be proper, common, or scientific names
 as given in special Publication No. 6 of the American Fisheries Society.
 "A List of Common and Scientific Names of Fishes from the United
 States and Canada." The values given for total weight produced by your
 facility per year and the maximum weight present at any one time should
 be representative of your normal operation.
 Item III-E
 The value given for maximum monthly pounds of food should be
 representative of your normal operation.
 Item IV
 The Clean Water Act provides for severe penalties for submitting false
 information on this application form.
 Section 309(C)(2) of the Clean Water Act provides that "Any person
 who knowingly makes any false statement, representation, or certification
 in any application...shall upon conviction, be punished by a fine of no
 more than £10,000 or by imprisonment for not more than six months or
 both."
                    Federal regulations require the certification to be signed as follows:
                      A. For corporation, by a principal executive officer of at least the level
                      of vice president.                                    [
                      B. For a partnership or sole proprietorship, by a general paitner or the
                      proprietor, respectively; or
                      C. For a municipality, State, Federal, or other public facility, by either
                      a principal executive officer or ranking elected official.    !
                  EPA Form 3510-2B (12-02)
BILLING CODE 6560-50-C
Paper Reduction Act Notice
The Public reporting burden for this collection of information
estimated to average 4 hours per response. The estimate includes
time for reviewing instructions, searching existing data sources,
gathering and maintaining the needed data, and completing and
reviewing the collection of information. Send comments regarding
the burden estimate or any other aspect of this collection of
information to the chief, Information Policy Branch (PM-223),
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue,
N.W., Washington, D.C. 20460, and the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington,
D.C. 20503, marked Attention: Desk Officer for EPA.

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           Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and  Regulations     7265
List of Subjects

40 CF.R Port 9

  Environmental protection, Reporting
and recordkeeping requirements.

40 CFR Parts 122 and 123

  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: December 15, 2002.
Christine Todd Whitman,
Administrator.

  For the reasons set out in the
preamble title 40, chapter I of the Code
of Federal Regulations is amended as
follows:

PART 9—OMB APPROVALS UNDER
THE PAPERWORK REDUCTION ACT

  1. The authority for part 9 continues
to read as follows:
  Authority: 7 U.S.C. 135 etseq., 136-136y;
15 U.S.C. 2001, 2003, 2005, 2006, 2601-2671;
21 U.S.C. 331J, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 etseq., 1311,1313d, 1314,1318,
1321,1326,1330,1342,1344,1345(d) and
(e), 1361; E.0.11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241,
242b, 243, 246, 300f, 300g-l, 300g-2, 300g-
3, 300g-4, 300g-5, 300g-6, 300J-1, 300J-2,
300J-3, 300J-4, 300J-9,1857 etseq., 6901-
6992k, 7401-7671q, 7542, 9601-9657,11023,
11048.

  2. In § 9.1 the table is amended by
adding entries in numerical order under
the indicated heading and a new
heading and entries to read as follows:

§9.1   OMB approvals under the Paperwork
Reduction Act.
       40 CFR citation
OMB control
    No.
EPA Administered Permit Programs: The
  National Pollutant Discharge Elimination
  System

   *****

122.21(0 	   2040-0250
122.23(1)	   2040-0250
   *****

122.28(b) 	   2040-0250
   *****

122.42(e) 	   2040-0250
   *****

     Foodlots Point Source Category
412.31-412.37
412.41-412.47
 2040-0250
 2040-0250
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 etseq.
  2. Amend §122.21 by adding a
sentence to the end of paragraph (a)(l)
and revising paragraph (i)(l) to read as
follows:

§ 122.21  Application for a permit
(applicable to State programs, see § 123.25).
  [a] * * *
  (1) * * * All concentrated animal
feeding operations have a duty to seek
coverage under an NPDES permit, as
described in § 122.23(d).
*    *    *    *    *
  (i)* *  *
  (l) For concentrated animal feeding
operations:
  (i) The name of the  owner or operator;
  (ii) The facility location and mailing
addresses;
  (iii) Latitude and longitude of the
production area [entrance to production
area);
  (iv) A topographic map of the
geographic  area in which the CAFO is
located showing the specific location of
the production area, in lieu of the
requirements of paragraph (f)(7) of this
section;
  (v) Specific information about the
number and type of animals, whether in
open confinement or housed under roof
(beef cattle, broilers, layers, swine
weighing 55 pounds or more, swine
weighing less than 55 pounds, mature
dairy cows, dairy heifers, veal calves,
sheep and lambs, horses, ducks, turkeys,
other);
  (vi) The type of containment and
storage (anaerobic lagoon, roofed storage
shed, storage ponds, underfloor pits,
above ground storage  tanks, below
ground storage tanks,  concrete pad,
impervious soil pad, other) and total
capacity for manure, litter, and process
wastewaterstorage(tons/gallons);
  (vii) The total number of acres under
control of the applicant available for
land application of manure, litter, or
process wastewater;
  (viii) Estimated amounts of manure,
litter, and process wastewater generated
per year (tons/gallons);
  (ix) Estimated amounts of manure,
litter and process wastewater transferred
to other persons per year (tons/gallons);
and
  (x) For CAFOs that must seek
coverage under a permit after December
31, 2006, certification that a nutrient
management plan has been completed
and will be implemented upon the date
of permit coverage.
*****
  3. Section 122.23 is revised to read as
follows:

§122.23 Concentrated animal feeding
operations (applicable to State NPDES
programs, see § 123.25).
  (a) Permit requirement for CAFOs.
Concentrated animal feeding operations,
as defined in paragraph (b) of this
section, are point sources that require
NPDES permits for discharges or !
potential discharges. Once an operation
is defined as a CAFO, the NPDES
requirements for CAFOs 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.
  (b) Definitions applicable to this
section:
  (1) Animal feeding operation ("AFO") .
means a lot or facility (other than-an
aquatiq animal production facility)
where the following conditions are met:
  (i) Animals (other than aquatic
animals) have been, are, or will be
stabled or confined and fed or
maintained for a total of 45 days or more
in any 12-month period, and
  (ii) Crops, vegetation, forage growth,
or post-harvest residues are not
sustained in the normal growing season
over any portion of the lot or facility.
  (2) Concentrated animal feeding
operation ("CAFO") means an AFO that
is defined as a Large CAFO or as a
Medium CAFO by the terms of this
paragraph, or that is designated as a
CAFO in accordance with paragraph (c)
of this section. Two or more AFOs
under common ownership are
considered to be a single AFO for; the
purposes of determining the number of
animals at an operation, if they adjoin
each other or if they use a common area
or system for the disposal of wastes.
  (3) The term land application area
means land under the control of an AFO
owner or operator, whether it is owned,
rented, or leased, to which manure,
litter or process wastewater from the
production area is or may be applied.
  (4) Large concentrated animal feeding
operation ("Large CAFO"). An AFO is
defined as a Large CAFO if it stables or
confines as many as or more than; the
numbers of animals specified in any of
the following categories:
  (i) 700 mature dairy cows, whether
milked or dry;
  (ii) 1,000 veal calves;
  (iii) 1,000 cattle other than mature
dairy cows or veal calves. Cattle

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7266      Federal  Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations
includes but is not limited to heifers,
steers, bulls and cow/calf pairs;
  (iv) 2,500 swine each weighing 55
pounds or more;
  (v) 10,000 swine each weighing less
than 55 pounds;
  (vi) 500 horses;
  (vii) 10,000 sheep or lambs;
  (viii) 55,000 turkeys;
  (ix) 30,000 laying hens or broilers, if
the AFO uses a liquid manure handling
system;
  (x) 125,000 chickens (other than
laying hens), if the AFO uses other than
a liquid manure handling system;
  (xi) 82,000 laying hens, if the AFO
uses other than a liquid manure
handling system;
  (xii) 30,000 ducks (if the AFO uses
other than a liquid manure handling
system); or
  (xiii) 5,000 ducks (if the AFO uses a
liquid manure handling system).
  (5) The term manure is defined to
include manure, bedding, compost and
raw materials or other materials
commingled with manure or set aside
for disposal.
  (6) Medium concentrated animal
feeding operation ("Medium CAFO").
The term Medium CAFO includes any
AFO with the type and number of
animals that fall within any of the
ranges listed in paragraph (b)(6)(i) of
this section and which has been defined
or designated as a CAFO. An AFO is
defined as a Medium CAFO if:
  (i) The type and number of animals
that it stables or confines falls within
any of the following ranges:
  (A) 200 to 699 mature dairy cows,
whether milked or dry;
  (B) 300 to 999 veal calves;
  (C) 300 to 999 cattle other than mature
dairy cows or veal calves. Cattle
includes but is not limited to heifers,
steers, bulls and cow/calf pairs;
  (D) 750 to 2,499 swine each weighing
55 pounds or more;
  (E) 3,000 to 9,999 swine each
weighing less than 55 pounds;
  (F) 150 to 499 horses;
  (G) 3,000 to 9,999 sheep, or lambs;
  (H) 16,500 to 54,999 turkeys;
  (I) 9,000 to 29,999 laying hens or
broilers, if the AFO uses a liquid
manure handling system;
  (J) 37,500 to 124,999 chickens (other
than laying hens), if the AFO uses other
than a liquid manure handling system;
  (K) 25,000 to 81,999 laying hens, if
the AFO uses other than a liquid
manure handling system;
  (L) 10,000 to 29,999 ducks (if the AFO
uses other than a liquid manure
handling system); or
  (M) 1,500 to 4,999 ducks (if the AFO
uses a liquid manure handling system);
and
  (ii) Either one of the following
conditions are met:
  (A) Pollutants are discharged into
waters of the United States through a
man-made ditch, flushing system, or
other similar man-made device; or
  (B) Pollutants are discharged directly
into waters of the United States which
originate Outside of and pass over,
across, or through the facility or
otherwise come into direct contact with
the animals confined in the operation.
  (7) Process  wastewater means water
directly or indirectly used in the
operation1 of the AFO for any or all of
the following: spillage or overflow from
animal or| poultry watering systems;
washing, cleaning, or flushing pens,
barns, manure pits, or other AFO
facilities; (direct contact swimming,
washing, pi spray cooling of animals; or
dust control. Process wastewater also
includes any water which comes into
contact with any raw materials,
products,1 or byproducts including
manure, litter, feed, milk, eggs or
bedding, j
  (8) Production area means that part of
an AFO that includes the animal
confinement area, the manure storage
area, the raw materials storage area, and
the waste containment areas. The
animal confinement area includes but is
not limited to open lots, housed lots,
feedlots, confinement houses,  stall
barns, free stall barns, milkrooms,
milking centers, cowyards, barnyards,
medication pens, walkers, animal
walkways, and stables. The manure
storage area includes but is not limited
to lagoons, runoff ponds, storage sheds,
stockpiles, under house or pit storages,
liquid impoundments, static piles, and
composting piles. The raw materials
storage aijea includes but is not limited
to feed silos, silage bunkers, and
bedding materials. The waste
containment area includes but is not
limited to settling basins, and areas
within bejrms and diversions which
separate uncontaminated storm water.
Also included in the definition of
production area is any egg washing or
egg processing facility, and any area
used in the storage, handling, treatment,
or disposal of mortalities.
  (9) Small concentrated animal feeding
operation ("Small CAFO"). An AFO
that is designated as a CAFO and is not
a Medium CAFO.
  (c) How may an AFO be designated as
a CAFO? The appropriate authority (i.e.,
State Director or Regional
Administrator, or both, as specified in
paragraph (c)(l) of this section) may
designate any AFO as a CAFO upon
determining that it is a significant
contributor of pollutants to waters of the
United States.
  (1) Who may designate?
  (i) Approved States. In States that are
approved or authorized by EPA under
Part 123, CAFO designations may be
made by the State Director. The
Regional Administrator may also
designate CAFOs in approved States,
but only where the Regional
Administrator has determined that one
or more pollutants in the AFO's  :
discharge contributes to an impairment
in a downstream or adjacent State or
Indian country water that is impaired
for that pollutant.
  (ii) States with no approved program.
The Regional Administrator may ••
designate CAFOs in States that do not
have an approved program and in
Indian country where no entity has
expressly demonstrated authority and
has been expressly authorized by EPA to
implement the NPDES program.
  (2) In making this designation, the
State Director or the Regional
Administrator shall consider the
following factors:
  (i) The size of the AFO and the
amount of wastes reaching waters of the
United States;
  (ii) The location of the AFO relative
to waters of the United States;
  (iii) The means of conveyance of
animal wastes and process waste waters
into waters of the United States;
  (iv) The slope, vegetation, rainfall,
and other factors affecting the likelihood
or frequency of discharge of animal
wastes manure and process waste.
waters into waters of the United States:
and
  (v) Other relevant factors.
  (3) No AFO shall be designated under
this paragraph unless the State Director
or the Regional Administrator has
conducted an on-site inspection of the
operation and determined that the
operation should and could be regulated
under the permit program. In addition,
no AFO with numbers of animals below
those established in paragraph (b)(6) of
this section may be designated as:a
CAFO  unless:
  (i) Pollutants are discharged into
waters of the  United States through a
manmade ditch, flushing system, .or
other similar  manmade device; or
  (ii) Pollutants are discharged directly
into waters of the United States which
originate outside of the facility and pass
over, across, or through the facility or
otherwise come into direct contact with
the animals confined in the operation.
  (d) Who must seek coverage under an
NPDES permit?
  (1) AH CAFO owners or operators
must apply for a permit. All CAFO
owners or operators must seek coverage
under an NPDES permit, except as
provided in paragraph (d)(2) of this

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           Federal Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations      7267
section. 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) Exception. An owner or operator
of a Large CAFO does not need to seek
coverage under an NPDES permit
otherwise required by this section once
the owner or operator has received from
the Director notification of a
determination under paragraph (f) of
this section that the CAFO has "no
potential to discharge" manure, litter or
process wastewater.
  (3) Information to submit with permit
application. A permit application for an
individual permit must include the
information specified in § 122.21. A
notice of intent for a general permit
must include the information specified
in §§ 122.21 and 122.28.
  (e) Land application discharges from
a CAFO are subject to NPDES
requirements. The discharge of manure,
litter or process wastewater to waters of
the United States from a CAFO as a
result of the application of that manure,
litter or process wastewater by the
CAFO to land areas under its control is
a discharge from that CAFO subject to
NPDES  permit requirements, except
where it is an agricultural storm water
discharge as provided in 33 U.S.C.
1362(14). For purposes of this
paragraph, where the 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
§ 122.42(e)(lKvi)-(ix)l a precipitation-
related discharge of manure, litter or
process wastewater from land areas
under the control of a CAFO is an
agricultural stormwater discharge.
  (f) "No potential to discharge"
determinations for Large CAFOs.
  (1) Determination by the Director. The
Director, upon request, may make a
case-specific determination that a Large
CAFO has "no potential to discharge"
pollutants to waters of the United
States. In making this  determination, the
Director must consider the potential for
discharges from both the production
area and any land application areas. The
Director must also consider any record
of prior discharges by the CAFO. In no
case may the CAFO be determined to
have "no potential to discharge" if it has
had a discharge within the 5 years prior
to the date of the request submitted
under paragraph (f)(2) of this section.
For purposes of this section, the term
"no potential to discharge" means that
there is no potential for any CAFO
manure, litter or process wastewater to
be added to waters of the United States
under any circumstance or climatic
condition. A determination that there is
"no potential to discharge" for purposes
of this section only relates to discharges
of manure, litter and process wastewater
covered by this section.
  (2] Information to support a "no
potential to discharge" request. In
requesting a determination of "no
potential to discharge," the CAFO
owner or operator must submit any
information that would support such a
determination, within the time frame
provided by the Director and in
accordance with paragraphs (g) and (h)
of this section. Such information must
include all of the information specified
in § 122.21(f) and (i)(l)(i) through (ix).
The Director has discretion to require
additional information to supplement
the request, and may also gather
additional information through on-site
inspection of the CAFO.
  (3] Process for making a "no potential
to discharge" determination. Before
making a final decision to grant a "no
potential to discharge" determination,
the Director must issue a notice to the
public stating that a "no potential to
discharge" request has been received.
This notice must be accompanied by a
fact sheet which includes, when
applicable: a brief description of the
type of facility or activity which is the
subject of the "no potential to
discharge" determination; a brief
summary of the factual basis, upon
which the request is based, for granting
the "no potential to discharge"
determination; and a description of the
procedures for reaching a final decision
on the "no potential to discharge"
determination. The Director must base
the decision to grant a "no potential to
discharge" determination on the
administrative record, which includes
all information submitted in support of
a "no potential to  discharge"
determination and any other supporting
data gathered by the permitting
authority. The Director must notify any
CAFO seeking a "no potential to
discharge" determination of its final
determination within 90 days of
receiving the request.
  (4) What is the deadline for requesting
a "no potential to discharge"
determination? The owner or operator
must request a "no potential to
discharge" determination by the
applicable permit application date
specified in paragraph (g) of this
section. If the Director's final decision is
to deny the "no potential to discharge"
determination, the owner or operator
must seek coverage under a permit
within 30 days after the denial.  ;
  (5) The "no potential to discharge"
determination does not relieve the
CAFO from the consequences ofqn
actual discharge. Any unpermitted
CAFO that discharges pollutants into
the waters of the United States is in
violation of the Clean Water Act even if
it has received a "no potential to ;
discharge" determination from the
Director. Any CAFO that has received a
determination of "no potential to
discharge," but who anticipates changes
in circumstances that could create the
potential for a discharge, should contact
the Director, and apply for and obtain
permit authorization prior to the change
of circumstances.               '
  (6) The Director retains authority to
require a permit. Where the Director has
issued a determination of "no potential
to discharge," the Director retains the
authority to subsequently require
NPDES permit coverage if
circumstances at the facility change, if
new information becomes available, or
if there is another reason for the Director
to determine that the CAFO has a
potential to discharge.          :
  (g) When must a CAFO seek coverage
under an NPDES permit?
  (1) Operations defined as CAFOs prior
to April 14, 2003. For operations that are
defined as CAFOs under regulations
that are in effect prior to April 14, 2003,
the owner or operator must have or seek
to obtain coverage under an NPDES
permit as of April 14, 2003, and comply
with all applicable NPDES
requirements, including the duty .to
maintain permit coverage in accordance
with paragraph (h) of this section;
  (2) Operations defined as CAFOs as of
April 14, 2003, who were not defined as
CAFOs prior to that date. For all
CAFOs, the owner or operator of the
CAFO must seek to obtain coverage
under an NPDES permit by a date
specified by the Director, but no later
than February 13, 2006.
  (3) Operations that become defined as
CAFOs after April 14, 2003, but which
are not new sources. For newly
constructed AFOs and AFOs thatimake
changes to their operations that result in
becoming defined as CAFOs for the first
time, after April 14, 2003, but are|not
new sources, the owner or operator
must seek to obtain coverage under an
NPDES permit/as follows:
  (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,

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7268      Federal  Register/Vol. 68, No.  29/Wednesday, February 12, 2003/Rules and Regulations
but no later than 90 days after becoming
defined as a CAFO; except that
  (iii) If an operational change that
makes the operation a CAFO would not
have made it a CAFO prior to April  14,
2003, the operation has until April 13,
2006, or 90 days after becoming defined
as a CAFO, whichever is later.
  (4) New sources. New sources must-
seek to obtain coverage under a permit
at least 180 days prior to the time that
the CAFO commences operation.
  (5) Operations that are designated as
CAFOs. For operations designated as a
CAFO in accordance with paragraph (c)
of this section, the owner or operator
must seek to obtain coverage urider  a
permit no later than 90 days after
receiving notice of the designation.
  (6) ATo potential to discharge.
Notwithstanding any other provision of
this section, a CAFO that has received
a "no potential to discharge"
determination in accordance with
paragraph (f) of this  section  is not
required to seek coverage under an
NPDES permit that would otherwise be
required by this section. If
circumstances materially change at a
CAFO that has received a NPTD
determination, such that the CAFO has
a potential for a discharge, the CAFO
has a duty to immediately notify the
Director, and seek coverage under an
NPDES permit within 30 days after the
change in circumstances.
  (h) Duty to Maintain Permit Coverage.
No  later than 180 days before the
expiration of the permit, the permittee
must submit an application  to renew its
permit, in accordance with § 122.21(g).
However, the permittee need not
continue to seek continued permit
coverage or reapply  for a permit if:
  (1] The facility has ceased operation
or is no longer a CAFO; and
  (2) The permittee has demonstrated to
the satisfaction of the Director that there
is no remaining potential for a discharge
of manure, litter or associated process
wastewater that was generated while the
operation was a CAFO, other than
agricultural stormwater from land
application areas.
  4. Section 122.28 is amended by
adding one sentence to the end of
paragraph (b)(2)(ii) to read as follows:

§ 122.28   General permits (applicable to
State NPDES programs, see § 123.25).
*    *    *    A    *
  (b)* *  *
  (2) * *  *
  (ii)  * * * Notices of intent for coverage
under a general permit for concentrated
animal feeding operations must include
the information specified in
§ 122.21(i)(l), including a topographic
map.     i
*    *    A • =  A    *    -
  5. Section 122.42 is amended by
adding paragraph (e) to read as follows:

§ 122.42 Additional conditions applicable
to specified categories of NPDES permits
(applicable to State NPDES programs, see
§123.25).
A    A    A    A    A
  (e) Concentrated animal feeding
operations (CAFOs). Any permit issued
to a CAFO must include:
  (1) Requirements to develop and
implement a nutrient management plan.
At a minimum, a nutrient management
plan must include best management
practices and procedures necessary to
implement applicable effluent
limitations and standards. Permitted  .
CAFOs must have their nutrient
management plans developed and
implemented by December 31, 2006.
CAFOs that seek to obtain coverage
under a pprmit after December 31, 2006
must have a nutrient management plan
developed and implemented upon the
date of permit coverage. The nutrient
management plan must, to the extent
applicable:
  (i) Ensure  adequate storage of manure,
litter, and process wastewater, including
procedures to ensure proper operation
and maintenance of the storage
facilities; j
  (ii) Ensure proper management of
mortalities (i.e., dead animals) to ensure
that they are not disposed of in a liquid
manure, storm water, or process
wastewater storage or treatment system
that is no^; specifically designed to treat
animal mortalities;
  (iii) Ensure that clean water is
diverted, as appropriate, from the
production area;
  (iv) Prevent direct contact of confined
animals with waters of the United
States;   i
  (v) Ensure that chemicals and other
contaminants handled on-site are not
disposed of in any manure, litter,
process wastewater, or storm water
storage or, treatment system unless
specifically designed to treat such
chemicals and other contaminants;
  (vi) Identify appropriate site specific
conservation practices to be
implemented, including as appropriate
buffers or! equivalent practices, to
control runoff of pollutants to waters of
the United States;
  (vii) Identify protocols for appropriate
testing of manure, litter, process
wastewater,  and soil;
  (viii) Establish protocols to land apply
manure, litter or process wastewater in
accordance with site specific nutrient
management practices that ensure
appropriate agricultural utilization of
the nutrients in the manure, litter or
process wastewater; and
  (ix) Identify specific records that will
be maintained to document the  :
implementation and management of the
minimum elements described in ;
paragraphs (e)(l)(i) through (e)(l)(viii) of
this section.
  (2) Recordkeeping requirements.
  (i) The permittee must create,
maintain for five years, and make
available to the Director, upon request,
the following records:          :
  (A) All applicable records identified
pursuant paragraph (e)(l)(ix) of this
section;                       '.
  (B) In addition, all CAFOs subject to
40 CFR part 412 must comply with
record keeping requirements as
specified in § 412.37(b) and (c) and
§412.47(b)and(c).
  (ii) A copy of the CAFO's site-specific
nutrient management plan must be
maintained on site and made available
to the Director upon request.
  (3) Requirements relating to transfer
of manure or process  wastewater co
other persons. Prior to transferring
manure, litter or process wastewater to
other persons, Large CAFOs must
provide the recipient  of the manure,
litter or process wastewater with the
most current nutrient analysis. The
analysis provided must be consistent
with the requirements of 40 CFR part
412. Large CAFOs must retain for five
years records of the date, recipient name
and address, and approximate amount
of manure, litter or process wastewater
transferred to another person.
  (4) Annual reporting requirements for
CAFOs. The permittee must submit an
annual report to the Director. The
annual report must include:
  (i) The number and type of animals,
whether in open confinement or housed
under roof (beef cattle, broilers, layers,
swine weighing 55 pounds or more,
swine weighing less than 55 pounds,
mature dairy cows, dairy heifers, veal
calves, sheep and lambs, horses, ducks,
turkeys, other);
  (ii) Estimated amount of total manure,
litter and process wastewater generated
by the CAFO in the previous 12 months
(tons/gallons);
  (iii) Estimated amount of total
manure, litter and process wastewater
transferred to other person by the-CAFO
in the previous 12 months (tons/ .
gallons);
  (iv) Total number of acres for land
application covered by the nutrient
management plan developed in
accordance with paragraph (e)(l) of this
section;
  (v) Total number of acres under
control of the CAFO that were used for

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           Federal Register/Vol. 68, No. 29/Wednesday, February 12,  2003/Rules  and Regulations     ; 7269
land application of manure, litter and
process wastewater in the previous 12
months;
  (vi) Summary of all manure, litter and
process wastewater discharges from the
production area that have occurred in
the previous 12 months, including date,
time, and approximate volume; and
  (vii) A statement indicating whether
the current version of the CAFO's
nutrient management plan was
developed or approved by a certified
nutrient management planner.

Appendix B to Fart 122 [Removed and
Reserved]
  6. Remove and reserve Appendix B to
part 122.

PART 123—STATE PROGRAM
REQUIREMENTS

  1. The authority citation for part 123
continues to read as follows:
  Authority: The Clean Water Act, 33 U.S.C.
1251efseg>
  2. Add a new § 123.36 to read as
follows:

§123.36  Establishment of technical
standards for concentrated animal feeding
operations.
  If the State has not already established
technical standards for nutrient
management that are consistent with 40
CFR 412.4(c)(2), the Director shall
establish such standards by the date
specified in § 123.62(e).
  Part 412 is revised to read as follows:

PART 412—CONCENTRATED ANIMAL
FEEDING OPERATIONS (CAPO) POINT
SOURCE CATEGORY

Sac.
412.1 General applicability.
412.2 General definitions.
412.3 General pretreatment standards.
412.4 Best management practices (BMPs)
   for land application of manure.
Subpart A—Horses and Sheep
412.10 Applicability.
412.11 [Reserved]
412.12 Effluent limitations attainable by the
   application of the best practicable
   control technology currently available
   (BPT).
412.13 Effluent limitations attainable by the
   application of the best available control
   technology economically achievable
   (BAT).
412.14 [Reserved]
412.15 New source performance standards
   (NSPS).
Subpart B—Ducks
412.20 Applicability.
412.21 Special definitions.
412.22 Effluent limitations attainable by the
   application of the best practicable
   control technology currently available
   (BPT).
412.23-412.24  [Reserved]
412.25  New source performance standards
    (NSPS).
412.26  Pretreatment standards for new
    sources (PSNS).
Subpart C—Dairy Cows and Cattle Other
Than Veal Calves
412.30  Applicability.
412.31  Specialized definitions.
412.32  Effluent limitations attainable by the
    application of the best practicable
    control technology currently available
    (BPT).
412;33  Effluent limitations attainable by the
    application of the best control
    technology for conventional pollutants
    (BCT).
412.34  [Reserved]
412.35  New source performance standards
    (NSPS).
412-.36  [Reserved]
412.37  Additional measures.
Subpart D—Swine, Poultry, and Veal Calves
412.40  Applicability.
412.41-412.42  [Reserved]
412.43  Effluent limitations attainable by the
    application of the best practicable
    control technology currently available
    (BPT).
412.44  Effluent limitations attainable by the
    application of the best control
    technology for conventional pollutants
    (BCT).
412.45  Effluent limitations attainable by the
    application of the best available control
    technology economically achievable
    (BAT).
412.46  New source performance standards
    (NSPS).
412.47  Additional measures.
  Authority: 33 U.S.C. 1311,1314,1316,
1317,1318,1342,1361.

§412.1   General applicability.
  This part applies to manure, litter,
and/or process wastewater discharges
resulting from concentrated animal
feeding operations (CAFOs).
Manufacturing and/or agricultural
activities which may be subject to this
part are generally reported under one or
more of the following Standard
Industrial Classification (SIC) codes: SIC
0211, SIC 0213| SIC 0214, SIC 0241, SIC
0251, SIC 0252, SIC 0253, SIC 0254, SIC
0259, or SIC 0272 (1987 SIC Manual).

§412.2  General definitions.
  As used in this part:
  (a) The general definitions and
abbreviations at 40 CFR part 401 apply.
  (b) Animal Feeding Operation (AFO)
and Concentrated Animal Feeding
Operation (CAPO) are defined at 40 CFR
122.23.
  (c) Fecal coliform means the bacterial
count (Parameter 1) at 40 CFR 136.3 in
Table 1A, which also cites the approved
methods of analysis.
  (d) Process wastewater means water
directly or indirectly used in the
operation of the CAFO for any or all of
the following: spillage or overflow from
animal or poultry watering systems;
washing, cleaning, or flushing pens,
barns, manure pits, or other CAFO
facilities; direct contact swimming,
washing, or spray cooling of animals; or
dust control. Process wastewater also
includes any water which comes into
contact with any raw materials,  ;
products, or byproducts including
manure, litter, feed, milk, eggs, or
bedding.                       ;
  (e) Land application area means land
under the control of an AFO owner or
operator, whether it is owned, rented, or
leased, to which manure, litter, or
process wastewater from the production
area is or may be applied.
  (f) New source is defined at 40 CFR
122.2. New source criteria are defined at
40 CFR 122.29(b).
  (g) Oversow means the discharge of
manure or process wastewater resulting
from the filling of wastewater or manure
storage structures beyond the point at
which no more manure, process  :
wastewater, or storm water can be
contained by the structure.
  (h) Production area means that part of
an AFO that includes the animal'
confinement area, the manure storage
area, the raw materials storage area, and
the waste containment areas. The,
animal confinement area include? but is
not limited to open lots, housed lots,
feedlots, confinement houses, stall
barns, free stall barns, milkrooms,
milking centers, cowyards, barnyards,
medication peris, walkers, animal
walkways,  and stables. The manure
storage area includes but is not limited
to lagoons, runoff ponds, storage sheds,
stockpiles,  under house or pit storages,
liquid impoundments, static piles, and
composting piles. The raw materials
storage area includes, but is not limited
to feed silos, silage bunkers, and
bedding materials. The waste    :
containment area includes but is not
limited to settling basins, and areas
within berms and diversions which
separate uncontaminated storm water.
Also included in the definition of
production area is any egg washing or
egg processing facility, and any area
used in the storage, handling, treatment,
or disposal of mortalities.
  (i) Ten (lO)-year, 24-hour rainfall
event, 25-year, 24-hour rainfall event,
and 100-year, 24-hour rainfall event
mean precipitation events with a
probable recurrence interval of once in
ten years, or twenty five years, or;one
hundred 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

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7270      Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
State rainfall probability information
developed from this source.
  (j) Analytical methods. The
parameters that are regulated or
referenced in this part and listed with
approved methods of analysis in Table
IB at 40 CFR 136.3 are defined as
follows:
  (l) Ammonia (as N) means ammonia
reported as nitrogen.
  (2) BOD5 means 5-day biochemical
oxygen demand.
  (3) Nitrate (as N) means nitrate
reported as nitrogen.
  (4) Total dissolved solids means
nonfilterahle residue.
  (k) The parameters that are regulated
or referenced in this part and listed with
approved methods of analysis in Table
1A at.40 CFR 136.3 are denned as
follows:
  (1) Fecal coliform means fecal
coliform bacteria.
  (2) Total coliform means all coliform
bacteria.

§412.3  General pretreatment standards.
  Any source subject to this part that
introduces process wastewater
pollutants into a publicly owned
treatment works (POTW) must comply
with 40 CFR part 403.

§412.4  Best Management Practices
(BMPs) for Land Application of Manure,
Litter, and Process Wastewater.
  (a) Applicability. This section applies
to any CAFO subject to subpart C of this
part (Dairy and Beef Cattle other than
Veal Calves) or subpart D of this part
(Swine, Poultry,  and Veal Calves].
  (b) Specialized definitions.
  (l] Setback means a specified distance
from surface waters or potential
conduits to surface waters where
manure, litter, and process wastewater
may not be land  applied. Examples of
conduits to surface waters include but
are not limited to: Open tile line intake
structures, sinkholes, and agricultural
well heads.
  (2) Vegetated buffer means a narrow,
permanent strip of dense perennial
vegetation established parallel to the
contours of and perpendicular to the
dominant slope of the field for the
purposes of slowing water runoff,
enhancing water infiltration, and
minimizing the risk of any potential
nutrients or pollutants from leaving the
field and reaching surface waters.
  (3) Multi-year phosphorus application
means phosphorus applied to a field in
excess of the crop needs for that year.
In multi-year phosphorus applications,
no additional manure, litter,  or process
wastewater is applied to the same land
in subsequent years until the applied
phosphorus has been removed from the
field via harvest and crop removal.
  (c) Requirement to develop and
implement best management practices.
Each CAFO subject to this section that
land applies manure, litter, or process
wastewater, must do so in accordance
with the! following practices:
  (1) Nutrient Management Plan. The
CAFO must develop and implement a
nutrient; management plan that
incorporates the requirements of
paragraphs (c)(2) through (c)(5) of this
section based on a field-specific
assessment of the potential for nitrogen
and phosphorus transport from the field
and that; addresses the form, source,
amount, timing, and method of
application of nutrients on each field to
achieve realistic production goals, while
minimizing nitrogen and phosphorus
movement to surface waters.
  (2) Determination of application rates.
Application rates for manure, litter, and
other process wastewater applied to
land under the ownership or operational
control of the CAFO must minimize
phosphorus and nitrogen transport from
the field to surface waters in compliance
with the technical standards for nutrient
management established by the Director.
Such technical standards for nutrient
management shall:
  (i) Include a field-specific assessment
of the potential for nitrogen and
phosphorus transport from the field to
surface waters, and address the form,
source, amount, timing, and method of
application of nutrients on each field to
achieve [realistic production goals, while
minimizing nitrogen and phosphorus
movement to surface waters; and
  (ii)  Include appropriate flexibilities
for any CAFO to implement nutrient
management practices to comply with
the technical standards, including
consideration of multi-year phosphorus
application on fields that do not have a
high potential for phosphorus runoff to
surface water, phased implementation
of phosphorus-based nutrient
management, and other components, as
determined appropriate by the Director.
  (3) Manure and soil sampling. Manure
must beianalyzed a minimum of once
annually for nitrogen and phosphorus
content, and soil analyzed a minimum
of once every five years for phosphorus
content.' The results of these analyses
are to be used in  determining
application rates for manure, litter, and
other process wastewater.
  (4) Inspect land application
equipment for leaks. The operator must
periodically inspect equipment used for
land application  of manure, litter, or
process wastewater.
  (5) Setback requirements. Unless the
CAFO exercises one of the compliance
alternatives provided for in paragraph
(cj(5)(i) or (c)(5)(ii) of this section,
manure, litter, and process wastewater
may not be applied closer than 100 feet
to any down-gradient surface waters,
open tile line intake structures,
sinkholes, agricultural well heads, or
other conduits to surface waters.
  (i) Vegetated buffer compliance
alternative. As a compliance alternative,
the CAFO may substitute the 100-ifoot
setback with a 35-foot wide vegetated
buffer where applications of manjire,
litter, or process wastewater are
prohibited.
  (iij Alternative practices compliance
alternative. As a compliance alternative,
the CAFO may demonstrate that a
setback or buffer is not necessary:
because implementation of alternative
conservation practices or field-specific
conditions will provide pollutant
reductions equivalent or better than the
reductions that would be achieved by
the 100-foot setback.

Subpart A—Horses and Sheep

§412.10  Applicability.
  This subpart applies to discharges
resulting from the production areas at
horse and sheep CAFOs. This subpart
does not apply to such CAFOs with less
than the following capacities: 10,000
sheep or 500 horses.

§412.11   [Reserved]

§412.12  Effluent limitations attainable by
the application of the best practicable
control technology currently available
(BPT).
  (a) Except as provided in 40 CFR
125.30 through 125.32, and subject to
the provisions of paragraph (b) of this
section, any existing point source
subject to this subpart must achieye the
following effluent limitations
representing the application of BPT:
There shall be no discharge of process
waste water pollutants to navigable
waters.
  (b) Process waste pollutants in the
overflow may be discharged to
navigable waters whenever rainfall
events, either chronic or catastrophic,
cause an overflow of process waste
water from a facility designed,
constructed and operated to contain all
process generated waste waters plus the
runoff from a 10-year, 24-hour rainfall
event for the location of the point
source.

§412.13  Effluent limitations attainable by
the application of the best available
technology economically achievable (BAT).
  (a) Except as provided in 40 CFR
125.30 through 125.32 and when the
provisions of paragraph (b) of this
section apply, any existing point source
subject to this subpart must achieye the

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           Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations      7271
following effluent limitations
representing the application of BAT:
There shall be no discharge of process  •
waste water pollutants into U.S. waters.
  (b) Whenever rainfall events cause an
overflow of process wastewater from a
facility designed, constructed, operated,
and maintained to contain all process-
generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event at
the location of the point source, any
process wastewater pollutants in the
overflow may be discharged into U.S.
waters.

§412.14  [Reserved]

§412.15  Standards of performance for
now sources (NSPS)
  (a) Except as provided in paragraph
(b) of this section, any new source
subject to this subpart must achieve the
following performance standards: There
must be no discharge of process
wastewater pollutants into U.S. waters.
  (b) Whenever rainfall events cause an
overflow of process wastewater from a
facility designed, constructed, operated,
and maintained to contain all process-
generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event at
the location of the point source, any
process wastewater pollutants in the
overflow may be discharged into U.S.
waters.

Subpart B—Ducks

§412.20  Applicability.

  This subpart applies to discharges
resulting from the production areas at
dry lot and wet lot duck CAFOs. This
subpart does not apply to such CAFOs
with less than the following capacities:
5,000 ducks.
§412.21  Special definitions.
  For the purposes of this subpart:
  (a) Dry lot means a facility for growing
ducks in confinement with a dry litter
floor cover and no access to swimming
areas.
  (b) Wet lot means a confinement
facility for raising ducks which is: open
to the environment, has a small number
of sheltered areas, and with open water
runs and swimming areas to which
ducks have free access.

§ 412.22  Effluent limitations attainable by
the application of the best practicable
control technology currently available
(BPT).
  (a) Except as provided in 40 CFR
125.30 through 125.32, any  existing
point source subject to this subpart shall
achieve the following effluent
limitations representing the degree of
effluent reduction attainable by the
application of the (BPT):
Regulated parameter
BOD, 	 .. .. , 	
Fecal coliform 	 ; 	
Maximum
daily1
3.66
(3)
Maximum
monthly
average 1
20
(3)
Maximum
daily2
1 66
(3)
Maximum
monthly
average2
091
;(3)
  1 Pounds per 1000 ducks.
  8 Kilograms per 1000 ducks.
  3 Not to exceed MPN of 400 per 100 ml at any time.
  (b) [Reserved]

§§412.23-412.24  [Reserved]

§412,25  Now source performance
standards (NSPS).
  (a) Except as provided in paragraph
(b) of this section, any new source
subject to this subpart must achieve the
following performance standards: There
must be no discharge of process waste
water pollutants into U.S. waters.
  (b) Whenever rainfall events cause an
overflow of process wastewater from a
facility designed, constructed, operated,
and maintained to contain all process-
generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event at
the location of the point source, any
process wastewater pollutants in the
overflow may be discharged into U.S.
waters.

§412.26  Pretreatment standards for new
sources (PSNS).
  (a) Except as provided in 40 CFR
403.7 and in paragraph (b) of this
section, any new source subject to this
subpart must achieve the following
performance standards: There must be
no introduction of process waste water
pollutants to a POTW.
  (b) Whenever rainfall events cause an
overflow of process wastewater from a
facility designed, constructed, operated,
and maintained to contain all process-
generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event at
the location of the point source, any
process wastewater pollutants in the
overflow may be introduced to a POTW.

Subpart C—Dairy Cows and Cattle
Other Than Veal Calves

§412.30  Applicability.
  This subpart applies to operations
defined as concentrated animal feeding
operations  (CAFOs) under 40 CFR
122.23 and includes the following
animals: mature dairy cows, either
milking or dry; cattle other than mature
dairy cows or veal calves. Cattle other
than mature dairy cows includes but is
not limited to heifers, steers, and bulls.
This subpart does not apply to such
CAFOs with less than the following
capacities:  700 mature dairy cows
whether milked or dry; 1,000 cattle
other than mature dairy cows or veal
calves.

§ 412.31  Effluent limitations attainable by
the application of the best practicable
control technology currently available
(BPT).
  Except as provided in 40 CFR 125.30
through 125.32, any existing point
source subject to this subpart must
achieve the following effluent
limitations representing the application
of BPT:
  (a) For CAPO production areas.
Except as provided in paragraphs. (a)(l)
through (a) (2) of this section, there must
be no discharge of manure, litter, or
process wastewater pollutants into
waters of the U.S. from the production
area.
  (1) Whenever precipitation causes an
overflow of manure, litter, or process
wastewater, pollutants in the overflow
may be discharged into U.S. waters
provided:
  (i) The production area is designed,
constructed, operated and maintained to
contain all manure, litter, and process
wastewater including the runoff and the
direct precipitation from a 25-year, 24-
hour rainfall event;
  (ii)  The production area is operated, in
accordance with the additional
measures and records required by
§412.37(a)and(b).
  (2)  Voluntary alternative performance
standards. Any CAFO subject to this
subpart may request the Director to
establish NPDES permit effluent
limitations based upon site-specific
alternative technologies that achieve a
quantity of pollutants discharged ifrorn
the production area equal to or less than
the quantity of pollutants that would be
discharged under the baseline

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7272      Federal Register/Vol.  68,  No. 29/Wednesday, February 12, 2003/Rules and Regulations
performance standards as provided by
paragraph (a)(l) of this section.
  (i) Supporting information. In
requesting site-specific effluent
limitations to be included in the NPDES
permit, the CAFO owner or operator
must submit a supporting technical
analysis and any other relevant
information and data that would
support such site-specific effluent
limitations within the time frame
provided by the Director. The
supporting technical analysis must
include calculation of the quantity of
pollutants discharged, on a mass basis
where appropriate, based on a site-
specific analysis of a system designed,
constructed, operated, and maintained
to contain all manure, litter, and process
wastewater, including the runoff from a
25-year, 24-hour rainfall event. The
technical analysis of the discharge of
pollutants must include:
  (A) All daily inputs to the storage
system, including manure, litter, all
process waste waters, direct
precipitation, and runoff.
  (B) All daily outputs from the storage
system, including losses due to
evaporation, sludge removal, and the
removal of waste water for use on
cropland at the CAFO or transport off
site.
  (C) A calculation determining the
predicted median annual overflow
volume based on a 25-year period of
actual rainfall data applicable to the
site.
  (D) Site-specific pollutant data,
including N, P, BOD5, TSS, for the
CAFO from, representative sampling and
analysis of all sources of input to the
storage system, or other appropriate
pollutant data.
  (E) Predicted annual average
discharge of pollutants, expressed
where appropriate as a mass discharge
on a daily basis (Ibs/day), and
calculated considering paragraphs-
(a)(2)(i)(A) through (a)(2)(i)(D) of this
section.
  (ii) The Director has the discretion to
request additional information to
supplement the supporting technical
analysis, including inspection of the
CAFO.
  (3] The CAFO shall attain the
limitations and requirements of this
paragraph as  of the date of permit
coverage.
  (b) For CAFO land application areas.
Discharges from land application areas
are subject to the following
requirements:
  (1) Develop and implement the best
management  practices specified in
§412.4;
  (2) Maintain the records specified at
§ 412.37 (c);
  (3) The CAFO shall attain the
limitations and requirements of this
paragraph by December 31,- 2006.

§412.32 j Effluent limitations attainable by
the application of the best conventional
pollutant: control technology (BCT).
  Except as provided in 40 CFR 125.30
through:125.32, any existing point
source subject to this subpart must
achieve .the following effluent
limitations representing the application
of BCT:!
  (a) For CAFO production areas: the
CAFO shall attain the same limitations
and requirements  as §412.31(a).
  (b) For CAFO land application areas:
the CAFO shall attain the same
limitations and requirements as
§412.31.(b).

§412.33 Effluent limitations attainable by
the application of the best available
technology economically achievable (BAT).
  Except as provided in 40 CFR 125.30
throughi!25.32, any existing point
source subject to this subpart must
achieve jthe following effluent
limitations representing the application
of BAT:'
  (a) For CAFO production areas: the
CAFO shall attain the same limitations
and requirements  as § 412.31(a).
  (b) For CAFO land application areas:
the CAFO shall attain the same
limitations and requirements as
§412.31(b).

§412.341 [Reserved]
       . j
§412.35 > New source performance
standards (NSPS).
  Any new point source subject to this
subpart must achieve the following
effluent limitations representing the
application of NSPS:
  (a) For CAFO production areas. The
CAFO shall attain the same limitations
and requirements  as §412.31(a)(l) and
§412.3l|(a)(2).
  (b) Fojr CAFO land application areas:
The CAFO shall attain the same
limitations and requirements as
§412.3i(b)(D and §412.31(b)(2).
  (c) Thje CAFO shall attain the
limitations and requirements of this
paragraph as of the date of permit
coverage.
  (d) Any source subject to this subpart
that commenced discharging after April
14,1993, and prior to April 14, 2003,
which was a new source subject to the
standards  specified in §412.15, revised
as of July 1, 2002,  must continue to
achieve [those standards for the
applicable time period specified in 40
CFR 122.29(d)(l).  Thereafter, the source
must achieve the standards specified in
§412.3l(a)and(b).
§412.36  [Reserved]

§412.37  Additional measures.
  (a) Each CAFO subject to this subpart
must implement the following
requirements:
  (1) Visual inspections. There must be
routine visual inspections of the GAFO
production area. At a minimum, the
following must be visually inspected:
  (i) Weekly inspections of all storm
water diversion devices, runoff  ;
diversion structures, and devices;
channelling contaminated storm water
to the wastewater and manure storage
and containment structure;
  (ii) Daily inspection of water lines,
including drinking water or cooling
water lines;
  (iii) Weekly inspections of the •
manure, litter, and process wastewater
impoundments; the inspection will note
the level in liquid impoundments as
indicated by the depth marker in
paragraph (a)(2) of this section.
  (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, or, in the case of new
sources subject to the requirements in
§ 412.46 of this part, the runoff and
direct precipitation from a 100-year, 24-
hour rainfall event.
  (3) Corrective actions. Any
deficiencies found as a result of these
inspections must be corrected as soon as
possible.                      :
  (4) Mortality handling. Mortalities
must not be disposed of in any liquid
manure or process wastewater system,
and must be handled in such a way as
to prevent the discharge of pollutants to
surface water, unless alternative
technologies pursuant to §412.31[a)(2)
and approved by the Director are
designed to handle mortalities.
  (b) Record keeping requirements for
the production area. Each CAFO must
maintain on-site for a period of five
years from the date they are created a
complete copy of the information
required by 40 CFR 122.21(i)(l) and 40
CFR 122.42(e)(l)(ix) and the records
specified in paragraphs (b)(l) through
(b)(6) of this section. The CAFO must
make these records available to the
Director and, in an authorized State, the
Regional Administrator, or his orlier
designee, for review upon request.
  (1) Records documenting the  :
inspections required under paragraph
(a)(l) of this section;
  (2) Weekly records of the depth of the
manure and process wastewater in the
liquid impoundment as indicated by the

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            Federal Register/Vol. 68, No.  29 / Wednesday, February 12, 2003/Rules and Regulations      7273
 depth marker under paragraph. (a)(2) of
 this section;
   (3) Records documenting any actions
 taken to correct deficiencies required
 under paragraph (a)(3) of this section.
 Deficiencies not corrected within 30
 days must be accompanied by an
 explanation of the factors preventing
 immediate correction;
   (4) Records of mortalities management
 and practices used by the CAFO to meet
 the requirements of paragraph (a)(4) of
 this section.
   (5) Records documenting the current
 design of any manure or litter storage
 structures, including volume for solids
 accumulation, design treatment volume,
 total design volume, and approximate
 number of days of storage capacity;
   (6) Records of the date, time, and
- estimated volume of any overflow.
   (c) Recordkeeping requirements for
 the land application areas. Each CAFO
 must maintain on-site a copy of its site-
 specific nutrient management plan.
 Each CAFO must maintain on-site for  a
 period of five years from the date they
 are created a complete copy of the
 information required by § 412.4 and 40
 CFR 122.42(e)(lKix) and the records
 specified in paragraphs (c)(l) through
 (cKlO) of this section. The CAFO must
 make these records available to the
 Director and, in an authorized State, the
 Regional Administrator, or his or her
 designee, for review upon request.
   (1) Expected crop yields;
   (2) The date(s) manure, litter, or
 process waste water is applied to each
 field;
   (3) Weather conditions at time of
 application and for 24 hours prior to
 and following application;
   (4) Test methods used to sample and
 analyze manure, litter, process waste
 water, and soil;
   (5) Results from manure, litter,
 process waste water, and soil sampling;
   (6) Explanation of the basis for
 determining manure application rates,
 as provided in the technical standards
 established by the Director.
   (7) Calculations showing the total
 nitrogen and phosphorus to be applied
 to each field, including sources  other
 than manure, litter, or process
 wastewater;
   (8) Total amount of nitrogen and
 phosphorus actually applied to each
 held, including documentation of
 calculations for the total amount
 applied;
   (9) The method used to apply the
 manure, litter, or process wastewater;
   (10) Date(s) of manure application
 equipment inspection.
Subpart D—Swipe, Poultry, and Veal
Calves

§412.40  Applicability.
  This subpart applies to operations
denned as concentrated animal feeding
operations (CAFOs) under 40 CFR
122.23 and includes the following
animals: swine; chickens; turkeys; and
veal calves. This subpart does not apply
to such CAFOs with less than the
following capacities: 2,500 swine each
weighing 55 Ibs. or more; 10,000 swine
each weighing less than 55 Ibs.; 30,000
laying hens or broilers if the facility
uses a liquid manure handling system;
82,000 laying hens if the facility uses
other than a liquid manure handling
system; 125,000 chickens other than
laying hens if the facility uses other
than a liquid manure handling system;
55,000 turkeys; and  1,000 veal calves.

§§412.41-412.42  [Reserved]

§ 412.43  Effluent limitations attainable by
the application of the best practicable
control technology currently available
(BPT).
  Except as provided in 40 CFR 125.30
through 125.32, any existing point
source subject to this subpart must
achieve the following effluent
limitations representing the application
of BPT:
  (a) For CAFO production areas.
  (1) The CAFO shall attain the same
limitations and requirements as
§412.31(a)(l) through (a)(2).
  (2) The CAFO shall attain the
limitations and requirements of this
paragraph as of the date of permit
coverage.
  (b) For CAFO land application areas.
  (I] The CAFO shall attain the same
limitations and requirements as
§412.31(bXl) and (b)(2).
  (2) The CAFO shall attain the
limitations and requirements of this
paragraph by December 31, 2006.

§412.44  Effluent limitations attainable by
the application of the best conventional
pollutant control technology (BCT).
  Except as provided in 40 CFR 125.30
through 125.32, any existing point
source subject to this subpart must
achieve the following effluent
limitations representing the application
of BCT:
  (a) For CAFO production areas: the
CAFO shall attain the same limitations
and requirements as § 412.43(a).
  (b) For CAFO land application areas:
the CAFO shall attain the same
limitations and requirements as
§412.43(b).
§412.45 Effluent limitations attainable by
the application of the best available :
technology economically achievable fBAT).
  Except as provided in 40 CFR 125.30
through 125.32, any existing poin;t
source subject to this subpart must
achieve the following effluent
limitations representing the application
of BAT:                       •
  (a) For CAFO production areasi the
CAFO shall attain the same limitations
and requirements as § 412.43(a). ;
  (b) For CAFO land application areas:
the CAFO shall attain the same
limitations and requirements as
§412.43(b),

§ 412.46 New source performance
standards (NSPS).
  Any new source subject to this
subpart must achieve the following
effluent limitations representing the
application of NSPS:
   (a) For CAFO production areasi There
must be no discharge of manure, litter,
or process wastewater pollutants into
waters of the U.S. from the production
area, subject to paragraphs (a)(l)
through (a) (3) of this section.
   (1) Waste management and storage
facilities designed, constructed,
operated, and maintained to contain all
manure, litter, and process wastewater
including the runoff and the direct
precipitation from a 100-year, 24-hour
rainfall event and operated in
accordance with the additional ,
measures and records required by
§ 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
§412.47(a)and(b).
   (3) Provisions for upset/bypass; as
provided in 40 CFR 122.41(m]-(n),
apply to a new source subject to this
provision.
   (b) For CAFO land application areas:
the CAFO shall attain the same
limitations and requirements as
§412.43(b)(l).
   (c) The CAFO shall attain the
limitations and requirements of this
paragraph as of the date of permit
coverage.
   (d] Voluntary superior environmental
performance standards. Any new source
CAFO subject to this subpart may
request the Director to establish
alternative NPDES permit limitations
based upon a demonstration that site-
specific innovative technologies will
achieve overall environmental
performance across all media which is
equal to or superior to the reductions
achieved by baseline standards as
provided by § 412.46(a). The quantity of
pollutants discharged from the

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7274      Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations.
production area must 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) and/or land application areas
for all manure, litter, and process
wastewater at on-site and off-site
locations. The comparison of quantity of
pollutants must be made on a mass basis
where appropriate. The Director has the
discretion to request supporting
information to supplement such a
request,  i
  fe) Any source subject to this subpart
that commenced discharging after April
14,1993, and prior to April 14, 2003,
which was a new source subject to the
standards specified in §412.15, revised
as of July 1, 2002, must continue to
achieve those standards for the
applicable time period specified in 40
CFR 122.29(d)(l). Thereafter, the source
must achieve the standards specified in
§41.2.43(a)and(b).
§412.47  Additional measures.
  (a) Each CAFO subject to this subpart
must implement the requirements of
§412.37(a).
  (b) Each CAFO subject to this subpart
must comply with the record-keeping
requirements of § 412.3 7 (b).
  (c) Each CAFO subject to this subpart
must comply with the record-keeping
requirements of § 4l2.37(c).     i
[FR Doc. 03-3074 Filed 2-11-03; 8:45 am]
BILLING CODE 6560-50-P

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