#53.2-0' oof
Friday,
January 12, 2001
Part H
Environmental
Protection Agency
40 CFR Parts 122 and 412
National Pollutant Discharge Elimination
System Permit Regulation and Effluent
Limitations Guidelines and Standards for
Concentrated Animal Feeding Operations;
Proposed Rule
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2960
Federal Register/Vol. 66, No. 9/Friday, January 12, 2001/Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122 and 412
[FRL-6921-4]
RIM 204O-AD19
National Pollutant Discharge
Elimination System Permit Regulation
and Effluent Limitations Guidelines
and Standards for Concentrated
Animal Feeding Operations
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: Today the Environmental
Protection Agency proposes to revise
and update two regulations that address
the impacts of manure, wastewater, and
other process waters generated by
concentrated animal feeding operations
(CAFOs) on water quality. These two
regulations are the National Pollutant
Discharge Elimination System (NPDES)
provisions that define which operations
are CAFOs and establish permit
requirements, and the Effluent
Limitations Guidelines for feedlots
(beef, dairy, swine and poultry
subcategories), which establish the
technology-based effluent discharge
standards for CAFOs. EPA is proposing
revisions to these regulations to address
changes that have occurred in the
animal industry sectors over the last 25
years, to clarify and improve
implementation of CAFO permit
requirements, and to improve the
environmental protection achieved
under these rules.
Environmental concerns being
addressed by this rule include both
ecological and human health effects.
Manure from stockpiles, lagoons, or
excessive land application can reach
waterways through runoff, erosion,
spills, or via groundwater. These
discharges can result in excessive
nutrients (nitrogen, phosphorus, and
potassium), oxygen-depleting
substances, and other pollutants in the
water. This pollution can kill fish and
shellfish, cause excess algae growth,
harm marine mammals, and
contaminate drinking water.
Today's action co-proposes two
alternatives for how to structure the
revised NPDES program for CAFOs; the
alternatives offer comparable
. environmental benefits but differ in
their administrative approach. EPA also
requests comment on two other
alternatives that the Agency is
considering and may pursue after
evaluating the comments.
EPA is also proposing to revise
effluent guidelines applicable to beef,
dairy, swine, and poultry operations
that are defined as CAFOs, pursuant to
the NPDES revisions. The proposed
effluent guidelines include regulations
for both new and existing animal
feeding operations that meet the
definition of a CAFO. Today's effluent
guidelines revisions do not alter the
requirements for horses, ducks, sheep or
lambs.
DATES: Comments must be received or
postmarked on or before midnight May
2, 2001.
ADDRESSES: Public comments regarding
this proposed rule should be submitted
by mail to: Concentrated Animal
Feeding Operation Proposed Rule,
Office of Water, Engineering and
Analysis Division (4303), USEPA, 1200
Pennsylvania Avenue, NW.,
Washington, DC 20460. Hand deliveries
(including overnight mail) should be
submitted to the Concentrated Animal
Feeding Operation Proposed Rule,
USEPA, Waterside Mall, West Tower,
Room 611, 401 M Street, SW.,
Washington, DC 20460. You also may
submit comments electronically to
CAFOS.comments@epa.gov. Please
submit any references cited in your
comments. Please submit an original
and three copies of your written
comments and enclosures. For
additional information on how to
submit comments, see "SUPPLEMENTARY
INFORMATION, How May I Submit
Comments?"
FOR FURTHER INFORMATION CONTACT: For
additional technical information contact
Karen Metchis or Jan Goodwin at (202)
564-0766.
SUPPLEMENTARY INFORMATION:
What Entities Are Potentially Regulated
by This Action?
This proposed rule would apply to
new and existing animal feeding
operations that meet the definition of a
concentrated animal feeding operation,
or which are designated by the
permitting authority as such.
Concentrated animal feeding operations
are defined by the Clean Water Act as
point sources for the purposes of the
NPDES program. (33 U.S.C. § 1362).
The following table lists the types of
entities that are potentially subject to
this proposed rule. This table is not
intended to be exhaustive, but rather
provides a guide for readers regarding
entities likely to be regulated by this
action. Other types of entities not listed
in the table could also be regulated. To
determine whether your facility would
be regulated by this action, you should
carefully examine the applicability
criteria proposed at § 122.23(a)(2) of the
rule. If you have questions regarding the
applicability of this action to a
particular entity, consult one of the
persons listed for technical information
in the preceding FOR FURTHER
INFORMATION CONTACT section.
Category
Federal, State and Local
Government
Industry
Examples of regulated entities
Operators of animal production operations that meet
the definition of a concentrated animal feeding oper-
ation.
Beef cattle feedlots
Hogs .•
Sheep and goats
General livestock, except dairy and poultry
Dairy farms
Broilers, fryers, and roaster chickens
Chicken eggs
Turkey and turkey eggs
Poultry hatcheries
Poultry and eggs NEC
Ducks . .
Horses and other eauines
North American Industry
Code
(NAIC)
See below
112112
11221
1241, 11242
11299
112111, 11212
11232
11231
11233
11234
1 1239
1 12390
11292
Standard Industrial
Classification Codes
See below
0211
0213
0214
0219
0241
0251
0252
0253
0254
0259
0259
0272
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Federal Register /Vol. 66, No. 9 /Friday, January 12, 2001 /Proposed Rules
2961
Category
Examples of regulated entities
Meat packing or poultry processing companies that
may be a potential co-permittee because of sub-
stantial operational control over a CAFO. .
Owners or operators of crop .production operations
that may receive CAFO manure for use as a fer-
tilizer substitute.
Crop Production •
North American Industry
Code
(NAIC)
31 16
111 .-.
Standard Industrial
Classification Codes
02
01
How May I Review the Public Record?
The record (including supporting
documentation) for this proposed rule is
filed under docket number OW-00-27
(proposed rule). The record is available
for inspection from 9 a.m. to 4 p.m. on
Monday through Friday, excluding legal
holidays, at the Water Docket, Room EB
57, USEPA Headquarters, 401M Street,
SW, Washington, DC 20460. For access
to docket materials, please call (202)
260-3027 to schedule an appointment
during the hours of operation stated
above.
How May I Submit Comments?
To ensure that EPA can read,
understand, and therefore properly
respond to comments, the Agency
requests that you cite, where possible,
the paragraph(s) or sections in the
preamble, rule, or supporting
documents to which each comment
refers. You should use a separate
paragraph for each issue discussed.
If you want EPA to acknowledge
receipt of your comments, enclose a
self-addressed, stamped envelope. No
faxes will be accepted. Comments may
also be submitted electronically to
CAFOS.comments@epa.gov. Electronic
comments must be submitted as an
ASCII, WordPerfect 5.1, WP6.1, or WPS
file avoiding the use of special
characters and forms of encryption.
Electronic comments must be identified
by the docket number OW-00-27. EPA
will accept comments and data on disks
in WordPerfect 5.1, 6.1, or 8 format or
in ASCII file format. Electronic
comments on this notice may be filed
on-line at many Federal depository
libraries.
Table of Contents
I. Legal Authority.
II. Purpose and Summary of the Proposed
Regulation.
III. Background.
A. The Clean Water Act.
B. History of EPA Actions to Address
CAFOs..
C. Which Requirements Apply to CAFOs.
D. How Do Today's Proposed Revisions
Compare to the Unified National AFO
Strategy?
IV. Why is EPA Changing the Effluent
Guidelines for Feedlots and the NPDES
CAFO Regulations?
A. Main Reasons for Revising the Existing
Regulations.
B. Water Quality Impairment Associated
with Manure Discharge and Runoff.
C. Recent Changes in the Livestock and
Poultry Industry.
D. Improve Effectiveness of Regulations.
V. What Environmental and Human Health
Impacts are Potentially Caused by CAFOs?
A. Which Pollutants Do CAFOs Have the
Potential to Discharge and Why are They
of Concern?
B. How Do These Pollutants Reach Surface
Waters?
C. What are the Potential and Observed
Impacts?
VI. What are Key Characteristics of the
Livestock and Poultry Industries?
A. Introduction and Overview.
B. Beef Subcategory.
C. Dairy Subcategory.
D. Hog Subcategory.
E. Poultry Subcategory.
VII. What Changes to the NPDES CAFO
Regulations are Being Proposed?
A. Summary of Proposed NPDES
Regulations.
B. What Size AFOs Would be Considered
CAFOs?
C. Changes to the NPDES Regulations.
D. Land Application of CAFO-generated
Manure.
E. What are the Terms of an NPDES
Permit?
F. What Type of NPDES Permit is
Appropriate for CAFOs?
VIII.What Changes to the Feedlot Effluent
Limitations Guidelines are Being
Proposed?
A, ~
B
Applicability.
C. Changes to Effluent Limitations and
Standards.
IX. Implementation of Revised Regulations.
A. How do the Proposed Changes Affect
State CAFO Programs?
B. How Would EPA's Proposal to Designate
CAFOs Affect NPDES Authorized States?
C. How and When Will the Revised
Regulations be Implemented?
D. How Many CAFOs are Likely to be
Permitted in Each State and EPA Region?
E. Funding Issues.
F. What Provisions are Made for Upset and
Bypass?
G. How Would an Applicant Apply for
Variances and Modifications to Today's
Proposed Regulation?
X. What are the Costs and Economic Impacts
of the Proposed Revisions?
A. Introduction and Overview.
B. Data Collection Activities.
C. Method for Estimating Compliance
Costs.
D. Method for Estimating Economic
Impacts.
E. Estimated Annual Costs of the Proposed
Regulatory Options/Scenarios.
F. Estimated Economic Impacts of the
Proposed Regulatory Options/Scenarios.
G. Additional Impacts.
H. Cost-Effectiveness Analysis.
I. Cost-Benefit Analysis.
J. Initial Regulatory Flexibility Analysis.
XI. What are the Environmental Benefits of
the Proposed Revisions?
A. Non-Water Quality Environmental
Impacts.
B. Quantitative and Monetized Benefits.
XII. Public Outreach.
A. Introduction and Overview.
B. Joint USDA/EPA Unified AFO Strategy
Listening Sessions.
C. Advisory Committee Meeting.
D. Farm Site Visits.
E. Industry Trade Associations.
F. CAFO Regulation Workgroup.'
G. Small Business Advocacy Review Panel.
XIII. Administrative Requirements.
A. Executive Order 12866: "Regulatory
Planning and Review".
B. Regulatory Flexibility Act (RFA) as
Amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 601 et seq.
C. Unfunded Mandates Reform Act.
D. Executive Order 13045: "Protection of
Children from Environmental Health
Risks and Safety Risks".
E. Executive Order 13084: Consultation
and Coordination with Indian Tribal
Governments.
F. Paperwork Reduction Act.
G. Executive Order 13132: "Federalism".
H. Executive Order 12898: "Federal
Actions to Address Environmental
Justice in Minority Populations and Low-
Income Populations".
I. National Technology Transfer and
Advancement Act.
XIV. Solicitation of Comments.
A. Specific Solicitation'of Comment and
Data.
B. General Solicitation of Comment.
I. Legal Authority
Today's proposed rule is issued under
the authority of sections 301, 304, 306,
307, 308, 402, and 501 of the Clean
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001/Proposed Rules
Water Act (CWA), 33 U.S.C. 1311,1314,
1316,1317,1318,1342, and 1361.
II, Purpose and Summary of the
Proposed Regulation
Today, the Environmental Protection
Agency proposes to revise and update
two regulations that address the impacts
on water quality from manure,
wastewater, and other process waters
generated by concentrated animal
feeding operations (CAFOs). The
National Pollutant Discharge
Elimination System (NPDES) provisions
in 40 CFR Part 122 define which
operations are CAFOs and establish
permit requirements for those operation.
The Effluent Limitations Guidelines
(ELG), or effluent guidelines, for
feedlots in 40 CFR Part 412 establish
technology-based effluent discharge
standards that are applied to CAFOs.
Both regulations were originally
promulgated in the 1970s. EPA is
proposing revisions to these regulations
to address changes that have occurred in
the animal industry sectors over the last
25 years, to clarify and improve
implementation of CAFO permit
requirements, and to improve the
environmental protection achieved
under these rules.
Environmental concerns being
addressed by this rule include both
ecological and human health effects.
Manure from stockpiles, lagoons, or
excessive land application rates can
reach waterways through runoff,
erosion, spills, or via groundwater.
These discharges can result in excessive
nutrients (nitrogen, phosphorus, and
potassium), oxygen-depleting
substances, and other pollutants in the
water. This pollution can kill fish and
shellfish, cause excess algae growth,
harm marine mammals, and
contaminate drinking water.
On October 30,1989, Natural
Resources Defense Council, Inc., and
Public Citizen, Inc., filed an action
against EPA in which they alleged,
among other things, that EPA had failed
to comply with CWA section 304(m).
Natural Resources Defense Council,
Inc., et al. v. Reilly, Civ. No. 89-2980
(RCL) (D.D.C.). Plaintiffs and EPA
agreed to a settlement of that action in
a consent decree entered on January 31,
1992. The consent decree, which has
been modified several times, established
a schedule by which EPA is to propose
and take final action for eleven point
source categories identified by name in
the decree and for eight other point
source categories identified only as new
or revised rules, numbered 5 through
12. After completing a preliminary
study of the feedlots industry under the
decree, EPA selected the swine and
poultry portion of the feedlots industry
as the subject for New or Revised Rule
#8, and the beef and dairy portion of
that industry as the subject for New or
Revised Rule #9. Under the decree, as
modified, the Administrator was
required to sign a proposed rule for both
portions of the feedlots industry on or
before December 15, 2000, and must
take final action on that proposal no
later than December 15, 2002. As part of
EPA's negotiations with the plaintiffs
regarding the deadlines for this
rulemaking, EPA entered into a
settlement agreement dated December 6,
1999, under which EPA agreed, by
December 15, 2000, to also propose to
revise the existing NPDES permitting
regulations under 40 C.F.R. part 122 for
CAFOs. EPA also agreed to perform
certain evaluations, analyses or
assessments and to develop certain
preliminary options in connection with
the proposed CAFO rules. (The
Settlement Agreement expressly
provides that nothing in the Agreement
requires EPA to select any of these
options as the basis for its proposed •
rule.)
The existing regulation defines
facilities with 1,000 animal units
("AU") or more as CAFOs. The
regulation also states that facilities with
300-1000 AU are CAFOs if they meet
certain conditions. The term AU is a
measurement established in the 1970
regulations that attempted to equalize
the characteristics of the wastes among
different animal types.
Today's proposals presents two
alternatives for how to structure the
revised NPDES program for CAFOs. The
first alternative is a "two-tier structure"
that simplifies the definition of CAFOs
by establishing a single threshold for
each animal sector. This alternative
would establish a single threshold at the
equivalent of 500 AU above which
operations would be defined as CAFOs
and below which facilities would
become CAFOs only if designated by the
permit authority. The 500 AU
equivalent for each animal sector would
be as follows.
500 cattle excluding mature dairy or
veal cattle
500 veal cattle
350 mature dairy cattle (whether milked
or dry)
1,250 mature swine weighing over 55
pounds
5,000 immature swine weighing 55
pounds or less
50,000 chickens
27,500 turkeys
2,500 ducks
250 horses
5,000 sheep or lambs
The second proposal would retain the
"three-tier structure" of the existing
regulation. Under this alternative, all
operations with 1,000 AU or more
would be defined as CAFOs; those with
300 AU to 1,000 AU would be CAFOs
only if they meet certain conditions or
if designated by the permit authority;
and those with fewer than 300 AU
would only be CAFOs if designated by
the permit authority. These conditions
are detailed in section VII of this
preamble and differ from those in the
current rule. Facilities with 300 AU to
1,000 AU would certify that they do not
meet the conditions for being defined as
a CAFO or apply for a permit. The 300
AU and 1,000 AU equivalent number of
animals for each sector would be as
follows:
Animal type
Cattle excluding mature dairy or veal cattle
Veal
Mature Dairy Cattle
Swins weighing more than 55 pounds
Swine weighing 55 pounds or less
Chickens
Turkeys
Ducks
Horses
Sheep or Lambs
1,000 AU
equivalent
(no. of
animals)
1 000
1 noo
700
2 500
10 000
100 000
55 000
5 000
500
10 000
300 AU
equivalent
(no. of
animals)
30()
or\A
200
750
3 000
30 000
1 6 500
1 500
150
3 000
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The Agency is also taking comment
on two other alternatives that the
Agency is considering and may pursue
after evaluating comments.
. Today's proposal would also expand
the regulatory definition of CAFOs to
include all types of poultry operations
regardless of the type of manure
handling system or watering system
they use, and also would include
standalone immature swine and heifer
operations.
Under the two-tier proposal, EPA is
proposing to simplify the criteria for
being designated as a CAFO by
eliminating two specific criteria that
have proven difficult to implement, the
"direct contact" criterion and the "man
made device" criterion. Under the three-
tier proposal, EPA is proposing to retain
those criteria for designating operations
which have less than 300 AU. Both
proposals retain the existing
requirement for the permit authority to
consider a number of factors to
determine whether the facility is a,
significant contributor of pollution to
waters of the U.S., and the requirement
for an on-site inspection prior to
designation. EPA is also proposing to
clarify that EPA has the authority to
designate CAFOs both in states where
EPA is the permit authority and in
States with NPDES authorized
programs.
EPA is proposing to eliminate the 25-
year, 24-hour storm event permit
exclusion and to impose a broader,'more
explicit duty for all CAFOs to apply for
a permit (with one exception as
described below). Under the current
regulations, facilities are excluded from
being defined as, and thus subject to
permitting as, CAFOs if they discharge
only in the event of a 25-year, 24-hour
storm. This exclusion has proven to be
problematic in practice, as described
below, and ultimately unnecessary.
There are many operations that
currently may be avoiding permitting by
an inappropriate reliance on this
exclusion. The Agency believes there-is
no reason to retain this exclusion from
the definition of a CAFO. However, EPA
is proposing to retain the 25-year, 24-
hour storm standard as a design
standard in the effluent guidelines for
certain sectors (specifically, the beef and
dairy sectors). CAFOs in those sectors
would need to obtain permits, but the
permits would allow certain discharges
as long as the facility met the 25-year,
24-hour storm design standard.
In sum, under today's proposal, all
operations that meet the definition of a
CAFO under either of the two
alternative structures (as well as all
operations that are designated as
CAFOs) would be required to apply for
a permit. There would, however, be one
exception to this requirement, as
described in more detail below: If the
operator could demonstrate to the
permitting authority that the facility has
"no potential to discharge," then a
permit application and a permit would
not be required.
Under the two-tier structure, the net
effect of the revisions for determining
which facilities are CAFOs is to require
approximately 26,000 operations to
apply for a NPDES permit. Under the
three-tier structure, EPA estimates that
approximately 13,000 operations would
be required to apply for a.permit, and
an additional 26,000 operations could
either certify that they are not a CAFO
or apply for a permit. Under the existing
regulation, EPA estimates that about
12,000 facilities should be permitted but
only 2,530 have actually applied for a
permit.
Today's proposal would clarify the
definition of a CAFO as including both
the production areas (animal
confinement areas, manure storage
areas, raw materials storage areas and
waste containment areas) and the land
application areas that are under the
control of the CAFO owner or operator.
As the industry trend is to larger, more
specialized feedlots with less cropland
needing the manure for fertilizer, EPA is
concerned that manure is being land
applied in excess of agricultural uses
and, therefore, being managed as a
waste product, and that this practice is
causing runoff or leaching to waters of
the U.S. The permit would address
practices at the production area as well
as the land application area, and would
impose record keeping and other
requirements with regard to transfer of
manure off-site.
EPA is further proposing to clarify
that entities that exercise "substantial
operational control" over the CAFO are
"operators" of the CAFO and thus
would need to obtain a permit along
with the CAFO owner or operator. The
trend toward specialized animal
production under contract with
processors, packers and other
integrators has increasingly resulted in
concentrations of excess manure beyond
agricultural needs in certain geographic
areas. Especially in the poultry and
swine sector, the processor provides the
animals, feed, medication and/or
specifies growing practices. EPA
believes that clarifying that both parties
are liable for compliance with the terms
of the permit as well as responsible for
the excess manure generated by CAFOs
will lead to better management of
manure.
The proposed effluent guidelines
revisions would apply only to beef,
dairy, swine, poultry and .veal
operations that are defined or
designated as CAFOs under either of the
two alternative structures and that are
above the threshold for the effluent
guideline. For those CAFOs below the
threshold for being subject to the
•effluent guidelines, the permit writer
would use best professional judgment
(BPJ) to develop the site-specific permit
conditions.
Today's proposed effluent guidelines
revisions would not alter the existing
effluent guideline regulations for horses,
ducks, sheep or lambs. In these sectors,
only facilities with 1,000 AU or more
are subject to the effluent guidelines.
Permits for operations in these
subcategories with fewer than 1,000 AU '
would continue to be developed based
on the best professional judgement of
the permit writer.
The proposed effluent guidelines
regulations for beef, dairy, swine,
poultry and veal operations will
establish the Best Practicable Control
Technology (BPT), Best Conventional
Pollutant Control Technology (BCT),
and the Best Available Technology
(BAT) limitations as well as New Source
Performance Standards, including
specific best management practices
which ensure that manure storage and
handling systems are inspected and
maintained adequately. A description of
these requirements is in Section III.
Under the BPT requirements for all of
the subcategories, EPA is proposing to
require zero discharge from the
production area except that an overflow
due to catastrophic or chronic storms
would be allowed if the GAFO met a
certain design standard for its
containment structures. If a CAFO uses
a liquid manure handling system, the
storage structure or lagoon would be
required to be designed, constructed
and maintained to capture all process
wastewater and manure, plus all .the
storm water runoff from the 25-year, 24-
hour storm. •
The proposed BPT limitations als.o
include specific requirements on the
application of manure and wastewater
to land that is owned or under the
operational control of the CAFO. EPA is .
proposing to require that CAFOs apply
their manure at a rate calculated to meet
the requirements of the crop for either
nitrogen or phosphorus (depending on
the soil conditions for phosphorus).
Livestock manure tends to be
phosphorus rich, meaning that if
manure is applied to meet the nitrogen
requirements of a crop, then phosphorus
is being applied at rates higher than
needed by the crop. Repeated
application of manure on a nitrogen
basis may build up phosphorus levels in
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the soil, and potentially result in
saturation, thus contributing to the
contamination of surface waters through
erosion, snow melt and rainfall events.
Therefore, EPA is also proposing that
manure must be applied to cropland at
rates not to exceed the crop
requirements for nutrients and the
ability of the soil to absorb any excess
phosphorus. BPT establishes specific
record keeping requirements associated
with ensuring the achievement of the
zero discharge limitation for the
production area and that the application
of manure and wastewater is done in
accordance with land application
requirements. EPA also proposes to
require the CAFO operator to maintain
records of any excess manure that is
transported off-site.
BAT limitations for the beef and dairy
subcategories would include all of the
BPT limitations described above and, in
addition, would require CAFOs to
achieve zero discharge to ground water
beneath the production area that has a
direct hydrologic connection to surface
water. In addition, the proposed BAT
requirements for the swine, veal and
poultry subcategories would eliminate
the provision for overflow in the event
of a chronic or catastrophic storm.
CAFOs in the swine, veal and poultry
subcategories typically house their
animals under roof instead of in open
areas, thus avoiding or minimizing the
runoff of contaminated storm water and
the need to contain storm water.
EPA is also proposing to revise New
Source Performance Standards (NSPS)
based on the same technology
requirements as BAT for the beef and
dairy subcategories. For the swine, veal
and poultry subcategories, EPA
proposes revised NSPS based on the
same technology as BAT with the
additional requirement that there be no
discharge of pollutants through ground
water beneath the production area that
has a direct hydrological connection to
surface waters. Both the BAT and NSPS
requirements have the same land
application and record keeping
requirements as proposed for BPT.
Today's proposal would make several
other changes to the existing regulation,
which would:
• require the CAFO operator to
develop a Permit Nutrient Plan for
managing manure and wastewater at
both the production area'and the land
application area;
• require certain record keeping,
reporting, and monitoring;
• revise the definition of an animal
feeding operation (AFO) to more clearly
exclude areas such as pastures and
rangeland that sustain crops or forage
during the entire time that animals are
present;
, • eliminate the mixed-animal type
calculation for determining which AFOs
are CAFOs; and
• require permit authorities to
include the following conditions in
permits to:
(1) require retention of a permit until
proper facility closure; (2) establish the
method for operators to calculate the
allowable manure application rate; (3)
specify restrictions on timing and
methods of application of manure and
wastewater to assure use for an
agricultural purpose (e.g., certain
applications to frozen, snow covered or
saturated land) to prevent impairment of
water quality; (4) address risk of
contamination via groundwater with a
direct hydrological connection to
surface water; (5) address the risk of
improper manure application off-site by
either requiring that the CAFO operator
obtain from off-site recipients a
certification that they are land applying
CAFO manure according to proper
agricultural practices or requiring the
CAFO to provide information to manure
recipients and keep appropriate records
of off-site transfers, or both; and (6)
establish design standards to account for
chronic storm events.
• Today's proposal would also:
• clarify EPA's interpretation of the
agricultural storm water exemption and
its implications for land application of
manure both at the CAFO and off-site;
and
• clarify application of the CWA to
dry weather discharges at AFOs.
EPA is seeking comment on the entire
proposal. Throughout the preamble,
EPA identifies specific components of
the proposed rule on which comment is
particularly sought.
m. Background
A. The Clean Water Act
Congress passed the Federal Water
Pollution Control Act (1972), also
known as the Clean Water Act (CWA),
to "restore and maintain the chemical,
physical, and biological integrity of the
nation's waters." (33 U.S.C. § 125l(a)).
The CWA establishes a comprehensive
program for protecting our nation's
waters. Among its core provisions, the
CWA prohibits the discharge of
pollutants from a point source to waters
of the U.S. except as authorized by a
National Pollutant Discharge
Elimination System (NPDES) permit.
The CWA establishes the NPDES permit
program to authorize and regulate the
discharges of pollutants to waters of the
U.S. EPA has issued comprehensive
regulations that implement the NPDES
program at 40 CFR Part 122. The CWA
also provides for the development of
technology-based and water quality-
based effluent limitations that are
imposed through NPDES permits to
control discharges of pollutants.
1. The National Pollutant Discharge
Elimination System (NPDES) Permit
Program
Under the NPDES permit program, all
point sources that directly discharge
pollutants to waters of the U.S. must
apply for a NPDES permit and may only
discharge pollutants in compliance with
the terms of that permit. Such permits
must include any nationally established,
technology based effluent discharge
limitations (i.e., effluent guidelines)
(discussed below, in subsection III.A.2).
In the absence of national effluent
limitations, NPDES permit writers must
establish technology based limitations
and standards on a case-by-case basis,
based on their "best professional
judgement (BPJ)."
Water quality-based effluent limits
also are included in a permit where
technology-based limits are not
sufficient to ensure compliance with
State -water quality standards that apply
to the receiving water or where required
to implement a Total Maximum Daily
Load (TMDL). Permits may also include
specific best management practices to
achieve effluent limitations and
standards, typically included as special
conditions. In addition, NPDES permits
normally include monitoring and
reporting requirements, and standard
conditions (i.e., conditions that apply to
all NPDES permits, such as the duty to
properly operate and maintain
equipment and treatment systems).
NPDES permits may be issued by EPA
or a State, Territory, or Tribe authorized
by EPA to implement the NPDES
program. Currently, 43 States and the
Virgin Islands are authorized to
administer the base NPDES program
(the base program includes the federal
requirements applicable to AFOs and
CAFOs). Alaska, Arizona, the District of
Columbia, Idaho, Maine, Massachusetts,
New Hampshire, and New Mexico are
not currently authorized to implement
the NPDES program. In addition,
Oklahoma, while authorized to
administer the NPDES program, does
not have CAFO regulatory authority. No
tribe is currently authorized.
A NPDES permit may be either an
individual permit tailored for a single
facility or a general permit applicable to
multiple facilities within a specific
category. Prior to the-issuance of an
individual permit, the owner or operator
submits a permit application with
facility-specific information to 'the
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permit authority, who reviews the
information and prepares a draft permit.
The permit authority prepares a fact
sheet explaining the draft permit, and
publishes the draft permit and fact sheet
for public review and comment.
Following consideration of public
comments by the permit authority, a
final permit is issued. Specific
procedural requirements apply to the
modification, revocation and reissuance,
and termination of a NPDES permit.
NPDES permits are subject to a
maximum 5-year term.
General NPDES permits are available
to address a category of discharges that
involve similar operations with similar
wastes. General permits are not
developed based on facility-specific
information. Instead, they are developed
based on data that characterize the type
of operations being addressed and the
pollutants being discharged. Once a
general permit is drafted, it is published
for public review and comment
accompanied by a fact sheet that
explains the permit. Following EPA or
State permit authority consideration of
public comments, a final general permit
is issued. The general permit specifies
the type or category of facilities that
may obtain coverage under the permit.
Those facilities that fall within this
category then must submit a "notice of
intent" (NOI) to be covered under the
general permit to gain permit coverage.
[Under 40 CFR 122.28(b)(2)(vi), the
permit authority also may notify a
discharger that it is covered under a
general permit even where that
discharger has not submitted a notice of
intent to be covered by the permit.] EPA
anticipates that the Agency and
authorized States will use general
NPDES permits to a greater extent than
individual permits to address CAFOs.
2. Effluent Limitation Guidelines and
Standards
Effluent limitation guidelines and
standards (which we also refer to today
as "effluent guidelines" or "ELG") are
national regulations that establish
limitations on the discharge of
pollutants by industrial category and
subcategory. These limitations are
subsequently incorporated into NPDES
permits. The effluent guidelines are
based on the degree of control that can
be achieved using various levels of
pollution control technology, as
outlined below. The effluent guidelines
may also include non-numeric effluent
limitations in the form of best
management practices requirements or
directly impose best management
practices as appropriate.
a. Best Practicable Control
Technology Currently Available (BPT)—r
Section 304(b)(l) of the CWA. In the
guidelines for an industry category, EPA
defines BPT effluent limits for
conventional, toxic, and non-
conventional pollutants. In specifying
BPT, EPA looks at a number of factors.
EPA first considers the cost of achieving
effluent reductions in relation to the
effluent reduction benefits. The Agency
also considers the age of the equipment
and facilities, the processes employed
and any required process changes,
engineering aspects of the control
technologies, non-water quality
environmental impacts (including
energy requirements), and such other
factors as the Agency deems appropriate
(CWA 304(b)(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. Where
existing performance is uniformly
inadequate, EPA may require higher
levels of control than currently in place
in an industrial category if the Agency
determines that the technology can be
practically applied.
b. Best Available Technology
Economically Achievable (BAT)—
Section 304(b)(2) of the CWA. In
general, BAT effluent Limitations
represent the best existing economically
achievable performance of direct
discharging plants in the industrial
subcategory or category. The factors
considered in assessing BAT include the
cost of achieving BAT effluent
reductions, the age of equipment and
facilities involved, the processes
employed, engineering aspects of the
control technology, potential process
changes, non-water quality
environmental impacts (including
energy requirements), and such factors
as the Administrator deems appropriate.
The Agency retains considerable
discretion in assigning the weight to be
accorded to these factors. An additional
statutory factor considered in setting
BAT is economic achievability.
Generally, the achievability is
determined on the basis of the total cost
to the industrial subcategory and the
overall effect of the rule on the
industry's financial health. BAT
limitations may be based on effluent
reductions attainable through changes
hi a facility's processes and operations.
As with BPT, where existing
performance is uniformly inadequate,
BAT may be based on technology
transferred from a different subcategory
within an industry or from another
industrial category. BAT may be based
on process changes or internal controls,
even when these technologies are not
common industry practice.'
c. Best Conventional Pollutant Control
Technology (BCT)^-Section 304(b)(4) of
the CWA. The 1977 amendments to the
CWA required EPA to identify effluent
reduction levels for conventional
pollutants associated with BCT
technology for discharges from existing
industrial point sources. BCT is not an
additional limitation, but replaces Best
Available Technology (BAT) for control
of conventional pollutants. In addition
to other factors specified in Section
304(b)(4)(B), the CWA requires that EPA
establish BCT limitations after
consideration of a two part "cost-
reasonableness" test. EPA explained its
methodology for the development of
BCT limitations in July 1986 (51 FR
24974). Section 304(a)(4) designates the
following as conventional pollutants:
biochemical oxygen demand (BOD5),
total suspended solids (TSS), fecal
coliform, pH, and any additional
pollutants defined by the Administrator
as conventional. The Administrator
designated oil and grease as an
additional conventional pollutant on
July 30,1979 (44 FR 44501).
d. New Source Performance
Standards (NSPS)—Section 306 of the
CWA. NSPS reflect effluent reductions
that are achievable based on the best
available demonstrated control
technology. New facilities have the
opportunity to install the best and most
efficient production processes and
wastewater treatment technologies. As a
result, NSPS should represent the
greatest degree of effluent reduction
attainable through the application of the
best available demonstrated control
technology for all pollutants (i.e.,
conventional, non-conventional, and
priority pollutants), hi establishing
NSPS, EPA is directed to take into
consideration the cost of achieving the
effluent reduction and any non-water
quality environmental impacts and
energy requirements.
B. History of EPA Actions to Address
CAFOs
EPA's regulation of wastewater and
manure from CAFOs dates to the 1970s.
The existing NPDES CAFO regulations
were issued on March 18,1976 (41 FR
11458). The existing national effluent
limitations guideline and standards for
feedlots were issued on February 14,
1974 (39 FR 5704).
By 1992, it became apparent that the
regulation and permitting of CAFOs
needed review due to changes in the
livestock industry, specifically the
consolidation of the industry into fewer,
but larger operations. In 1992, the
Agency established a workgroup
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composed of representatives of State
agencies, EPA regional staff and EPA
headquarters staff to address issues
related to CAFOs. The workgroup
issued The Report of the EPA/State
Feedlot Workgroup in 1993. One of the .
workgroup's recommendations was that
the Agency should provide additional
guidance on how CAFOs are regulated
under the NPDES permit program. The
Agency issued such guidance, entitled
Guide Manual On NPDES Regulations
For Concentrated Animal Feeding
Operations, in December 1995.
Massive spills of hog manure (see
Section V.B.l.c) and Pfiesteria outbreaks
(see Section V.C.l.a.), continued
industry consolidation, and increased
public awareness of the potential
environmental and public health
impacts of animal feeding operations
resulted in EPA taking more
comprehensive actions to improve
existing regulatory and voluntary
programs. In 1997, dialogues were
initiated between EPA and the poultry
and pork livestock sectors. On
December 12,1997, the Pork Dialogue
participants, including representatives
from the National Pork Producers
Council (NPPC) and officials from EPA,
U.S. Department of Agriculture (USDA),
and several States, issued a
Comprehensive Environmental
Framework for Pork Production
Operations. Continued discussions
between EPA and the NPPC led to
development of a Compliance Audit
Program Agreement (CAP Agreement)
that is available to any pork producer
who participates in NPPC's
environmental assessment program. The
CAP Agreement for pork producers was
issued by the Agency on November 24,
1998. Under the agreement, pork
producers that voluntarily have their
facilities inspected are eligible for
reduced penalties for any CWA
violations discovered and corrected.
The Poultry Dialogue produced a report
in December 1998 that established a
voluntary program focused on
promoting protection of the
environment and water quality through
implementation of litter management
plans and other actions: Environmental
Framework and Implementation
Strategy: A Voluntary Program
Developed and adopted by the Poultry
Industry, Adopted at the December 8-9,
1998 meeting of the Poultry Industry
Environmental Dialogue (U.S. Poultry
and Egg Association).
President Clinton and Vice President
Gore announced the Clean Water Action
Plan (CWAP) on February 19,1998. The
CWAP describes the key water quality
problems our nation faces today and
suggests both a broad plan and specific
actions for addressing these problems.
The CWAP indicated that polluted
runoff is the greatest source of water
quality problems in the United States
today and that stronger polluted runoff
controls are needed. The CWAP goes on
to state that one important aspect of
such controls is the expansion of CWA
permit controls, including those
applicable to large facilities such as
CAFOs.
The CWAP included two key action
items that address animal feeding
operations (AFOs). First, it stated that
EPA should publish and, upon
considering public comments,
implement an AFO strategy for
important and necessary EPA actions on
standards and permits. EPA published a
Draft Strategy for Addressing
Environmental and Public Health
Impacts from Animal Feeding
Operations in March 1998 (draft AFO
Strategy). In accordance with EPA's
draft AFO Strategy, EPA's Office of
Enforcement and Compliance Assurance
(OECA) also issued the Compliance
Assurance Implementation Plan for
Animal Feeding Operations in March
1998. This plan describes compliance
and enforcement efforts being
undertaken to ensure that CAFOs
comply with existing CWA regulations.
Second, the CWAP stated that EPA and
USDA should jointly develop a unified
national strategy to minimize the water
quality and public health impacts of
AFOs. EPA and USDA jointly published
a draft Unified National Strategy for
Animal Feeding Operations (hereinafter
Unified National AFO Strategy) on
September 21,1998 and, after
sponsoring and participating in 11
public listening sessions and
considering public comments on the
draft strategy, published a final Unified
National AFO Strategy on March 9,
1999. This joint strategy was generally
consistent with and superceded EPA's
draft AFO Strategy.
The Unified National AFO Strategy
establishes national goals and
performance expectations for all AFOs.
The general goal is for AFO owners and
operators to take actions to minimize
water pollution from confinement
facilities and land where manure is
applied. To accomplish this goal, the
AFO Strategy established a national
performance expectation that all AFOs
should develop and implement
technically sound, economically
feasible, and site-specific
comprehensive nutrient management
plans (CNMPs) to minimize impacts on
water quality and public health.
The Unified National AFO Strategy
identified seven strategic issues that
should be addressed to better resolve
concerns associated with AFOs. These
include: (1) fostering CNMP
development and implementation; (2)
accelerating voluntary, incentive-based
programs; (3) implementing and
improving the existing regulatory
program; (4) coordinating research,
technical innovation, compliance
assistance, and technology transfer; (5)
encouraging industry leadership; (6)
increasing data coordination; and (7)
establishing better performance
measures and greater accountability.
Today's proposed rule primarily
addresses strategic issue three:
implementing and improving the
existing AFO regulatory program.-
The Unified National AFO Strategy
observed that, for the majority of AFOs
(estimated in the AFO Strategy as 95
percent), voluntary efforts founded on
locally led conservation, education, and
technical and financial assistance would
be the principal approach for assisting
owners and operators in developing and
implementing site-specific CNMPs and
reducing water pollution and public
health risks. Future regulatory programs
would focus permitting and
enforcement priorities on high risk
operations, which were expected to
constitute the remaining 5 percent. EPA
estimates that today's proposal would
result in permit coverage for .
approximately 7 percent of AFOs under
the two-tier structure, and between 4.5
percent and 8.5 percent of AFOs under
the three-tier structure.
Following publication of the Unified
National AFO Strategy, EPA issued on
August 6,1999 the Draft Guidance
Manual and Example NPDES Permit for
CAFOs for a 90-day public comment
period. EPA undertook development of
this new guidance manual in order to
provide permit writers with improved
guidance on applying the existing
regulations to a changing industry.
While the guidance manual has not
been finalized, many of the issues
discussed in the draft guidance manual
are also addresses in today's preamble.
EPA expects to issue final, revised
permitting guidance to reflect the
revised CAFO regulations when they are
published in final form.
C. What Requirements Apply to CAFOs?
The discussion below provides an
overview of the scope and requirements
imposed under the existing NPDES
CAFO regulations and feedlot effluent
limitations guidelines. It also explains
the relationship of these two
regulations, and summarizes other
federal and State regulations that
potentially affect AFOs.
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1. What are the Scope and Requirements
of the Existing NPDES Regulations for
CAFOs?
Under existing 40 CFR 122.23, an
operation must be defined as an animal
feeding operation (AFO) before it can be
denned as a concentrated animal
feeding operation (CAFO). The term
"animal feeding operation" is denned hi
EPA regulations as a "lot or facility"
where animals "have been, are, or will
be stabled or confined and fed or
maintained for a total of 45 days or more
in any 12 month period and crops,
vegetation!,] forage growth, or post-
harvest residues are not sustained in the
normal growing season over any portion
of the lot or facility." This definition is
intended to enable the NPDES
authorized permitting authority to
regulate facilities where animals are
stabled or confined and waste is
generated.
Once a facility meets the AFO
definition, its size, based upon the total
numbers of animals confined, is a key
factor in determining whether it is a
CAFO. To define these various livestock
sectors, EPA established the concept of
an "animal unit" (AU), which varies
according to animal type. Each livestock
type, except poultry, is assigned a
multiplication factor to facilitate
determining the total number of AU at
a facility with more than one animal
type. These multiplication factors are as
follows: Slaughter and feeder cattle—
1.0, Mature dairy cattle—1.4, Swine
weighing over 25 kilograms
(approximately 55 pounds)—0.4,
Sheep—0.1, Horses—2.0. There are
currently no animal unit conversions for
poultry operations. The regulations,
however, define the total number of
animals (subject to waste handling
technology restrictions) for specific
poultry types that make these operations
subject to the regulation. (40 GFR Part
122, Appendix B).
Under the existing regulations, an
animal feeding operation is a
concentrated animal feeding operation if
it meets the regulatory CAFO definition
or if it is designated as a CAFO. The
regulations automatically define an AFO
to be a CAFO if either more than 1,000
AU are confined at the facility, or more
than 300 AU are confined at the facility
and: (1) pollutants are discharged into
navigable waters through a manmade
ditch, flushing system,-or other similar
man-made device; or (2) pollutants are
discharged directly into waters that
originate outside of and pass over,
across, or through the facility or come
into direct contact with the confined
animals. However, no animal feeding
operation is defined as a CAFO if it
discharges only in the event of a 25-
year, 24-hour storm event (although it
sill may be designated as a CAFO).
Although they are not automatically
defined as a CAFO, facilities still may
be designated as a CAFO even if they
discharge only in a 25-year, 24-hour
storm event.
An AFO can also become a CAFO
through designation. The NPDES
permitting authority may, on a case-by-
case basis, after conducting an bn-site
inspection, designate any AFO as a
CAFO based on a finding that the
facility "is a significant contributor of
pollution to the waters of the United
States." (40 CFR 122.23(c)). Pursuant to
40 CFR 122.23(c)(l)(i)-(v) the permitting
authority shall consider several factors
making this determination, including:
(1) the size of the operation, and amount
of waste reaching waters of the U.S.; (2)
the location of the operation relative to
waters of the U.S.; (3) the means of
conveyance of animal waste and process
waste waters into waters of the U.S.; and
(4) the slope, vegetation, rainfall and
other factors affecting frequency of
discharge. A facility with 300 animal
units or less, however, may not be
designated as a CAFO unless pollutants
are discharged into waters of the U.S.
through a man-made ditch, flushing
system, or other similar man-made
device, or are discharged directly into
waters of the U.S. which originate
outside of the facility and pass over,
across or through the facility or
otherwise come into direct contact with
the animals confined in the operation.
Once defined or designated as a
CAFO, the operation is subject to
NPDES permitting. As described above,
a permit contains the specific
technology-based effluent limitations
(whether based on the effluent
guidelines or BPJ); water quality-based
limits if applicable; specific best
management practices; monitoring and
reporting requirements; and other.
standard NPDES conditions.
2. What are the Scope and Requirements
of the Existing Feedlot Effluent
Guidelines?
In 1974, EPA promulgated effluent
limitations guidelines applicable to
CAFOs (40 CFR Part 412) and
established in those regulations the
technology-based effluent discharge
standards for the facilities covered by
the guidelines. The effluent guidelines
for the feedlots point source category
have two subparts: Subpart B for ducks,
and Subpart A for all other feedlot
animals. Under the existing regulation,
Subpart A covers: beef cattle; dairy
cattle; swine; poultry; sheep; and
horses. Further, the effluent guidelines
apply only to facilities with 1,000 AU or
greater. Today's revisions to the effluent
guidelines affect only the guidelines for
the beef, dairy, swine, poultry and veal
subcategories, while the NPDES
revisions are applicable to all confined
animal types.
The current feedlot effluent
guidelines based on BAT prohibit
discharges of process wastewater
pollutants to waters of the U.S. except
when chronic or catastrophic storm
events cause an overflow from a facility
designed, constructed, and operated to
hold process-generated wastewater plus
runoff from a 25-year, 24-hours storm
event. Animal wastes and other
wastewater that must be controlled
include: (1) spillage or overflow from
animal or poultry watering systems,
washing, cleaning, or flushing pens,
barns, manure pits, or other feedlot
facilities, direct contact swimming,
washing, or spray cooling of animals,
and dust control; and (2) precipitation
(rain or snow) which comes into contact
with any manure, litter, or bedding, or
any other raw material or intermediate
or final material or product used in or ,;
resulting from the production of animals
or poultry or direct products (e.g., milk
or eggs). 40 CFR 412.11.
As described above, in those cases
where the feedlot effluent guidelines do
not apply to a CAFO (i.e., the operation
confines fewer than 1,000 animal units),
the permit writer must develop, for
inclusion in the NPDES permit,
technology-based limitations based on
best professional judgement (BPJ).
3. What Requirements May be Imposed
on AFOs Under the Coastal Zone Act
Reauthorization Amendments of 1990
(CZARA)?
In the Coastal Zone Act
Reauthorization Amendments of 1990
(CZARA), Congress required States with
federally-approved coastal zone
management programs to develop and
implement coastal nonpoint pollution
control programs. Thirty-three (33)
States and Territories currently have
federally approved Coastal Zone
Management programs. Section 6217(g)
of CZARA called for EPA, in
consultation with other federal agencies,
to develop .guidance on "management
measures" for sources of nonpoint
source pollution in coastal waters. In
January 1993, EPA issued its Guidance
Specifying Management Measures for
Sources of Nonpoint Pollution in
Coastal Waters which addresses five
major source categories of nonpoint
pollution: urban runoff, agriculture
runoff, forestry runoff, marinas and
recreational boating, and
hydromodification.
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Within the agriculture runoff
nonpoint source category, the EPA
guidance specifically included
management measures applicable to all
new and existing "confined animal
facilities." The guidance identifies
which facilities constitute large and
small confined animal facilities based
solely on the number of animals or
animal units confined (the manner of
discharge is not considered). Under the
CZARA guidance: a large beef feedlot
contains 300 head or more, a small
feedlot between 50-299 head; a large
dairy contains 70 head or more, a small
dairy between 20-69 head; a large layer
or broiler contains 15,000 head or more,
a small layer or broiler between 5,000-
14,999 head; a large turkey facility
contains 13,750 head or more, a small
turkey facility between 5,000-13,749
head; and a large swine facility contains
200 head or more, a small swine facility
between 100-199 head.
The thresholds in the CZARA
guidance for identifying large and small
confined animal facilities are lower than
those established for defining CAFOs
under the current NPDES regulations.
Thus, in coastal States the CZARA
management measures potentially apply
to a greater number of small facilities
than the existing CAFO definition.
Despite the fact that both the CZARA
management measures for confined
animal facilities and the NPDES CAFO
regulations address similar operations,
these programs do not overlap or
conflict with each other. Any CAFO
facility, defined by 40 CFR Part 122,
Appendix B, that has a NPDES CAFO
permit is exempt from the CZARA .
program. If a facility subject to CZARA
management measures is later
designated a CAFO by a NPDES
permitting authority, the facility is no
longer subject to CZARA. Thus, an AFO
cannot be subject to CZARA and NPDES
permit requirements at the same time.
EPA's CZARA guidance provides that
new confined animal facilities and
existing large confined animal facilities
should limit the discharge of facility
wastewater and runoff to surface waters
by storing such wastewater and runoff
during storms up to and including
discharge caused by a 25-year, 24-hour
frequency storm. Storage structures
should have an earthen or plastic lining,
be constructed with concrete, or
constitute a tank. All existing small
facilities should design and implement
systems that will collect solids, reduce
contaminant concentrations, and reduce
runoff to minimize the discharge of
contaminants in both facility •
wastewater and in runoff caused by
storms up to and including a 25-year, .
24-hour frequency storm. Existing small
facilities should substantially reduce
pollutant loadings to ground water. Both
large and small facilities should also
manage accumulated solids in an
appropriate waste utilization system.
Approved State CZARA programs have
management measures in conformity
with this guidance and enforceable
policies and mechanisms as necessary
to assure their implementation.
In addition to the confined animal
facility management measures, the
CZARA guidance also includes a
nutrient management measure that is
intended to be applied by States to
activities associated with the
application of nutrients to agricultural
lands (including the application of
manure). The goal of this management
measure is to minimize edge of field
delivery of nutrients and minimize the
leaching of nutrients from the root zone.
The nutrient management measures
provide for the development,
implementation, and periodic updating
of a nutrient management plan. Such
plans should address: application of
nutrients at rates necessary to achieve
realistic crop yields; improved liming of
nutrient application; and the use of
agronomic crop production technology
to increase nutrient use efficiency.
Under this management measure,
nutrient management plans include the
following core components: farm and
field maps showing acreage, crops, and
soils; realistic yield expectations for the
crops to be grown; a summary of the
nutrient resources available to the
'producer; an evaluation of field
limitations based on environmental
hazards or concerns; use of the'limiting
nutrient concept to establish the mix of
nutrient sources and requirements for
the crop based on realistic crop
expectations; identification of timing.
and application methods for nutrients;
and provisions for proper calibration
and operation of nutrient application
equipment.
4. How Are CAFOs Regulated By States?
NPDES permits may be issued by EPA
or a State authorized by EPA to
implement the NPDES program.
Currently, 43 States and the Virgin
Islands are authorized to administer the
NPDES program. Oklahoma, however,
has not been authorized to administer
the NPDES program for CAFOs.
To become an authorized NPDES
state, the State's requirements must, at
a minimum, be as stringent as the
requirements imposed under the federal
NPDES program. States, however, may
impose requirements that are broader in
scope or more stringent than the
requirements imposed at the federal
level. In States not authorized to
implement the NPDES program, the
appropriate EPA Regional office is
responsible for implementing the
program.
State efforts to control pollution from
CAFOs have been inconsistent to date
for a variety of reasons. Many States
have only recently focused attention on
the environmental challenges posed by
the emergence of increasing
consolidation of CAFOs into larger and
larger operations. Others have
traditionally viewed AFOs as
agriculture, and the reluctance to
regulate agriculture has prevented
programs from keeping pace with a
changing industry. Many states have
limited resources for identifying which
facilities are CAFOs, or which may be
inappropriately claiming the 25-year,
24-hour storm permit exclusion. Some
states with a large number of broiler and
laying operations do not aggressively try
to permit these facilities under NPDES
because the technology requirements for
these operations in the existing •
regulation are outdated.
Another reason States may not have
issued NPDES permits to CAFOs is the
concern over potentially causing
operations to lose cost-share money
available under EPA's Section 319
Nonpoint Source Program and other
assistance under USDA's Environmental
Quality Incentive Program (EQIP). Once
a facility is considered a point source
under NPDES, the operation is not
eligible for cost sharing under the
Section 319 nonpoint source program.
The USDA EQIP program, however, is
available to most facilities, and being a
permitted CAFO is not a reason for
exclusion from the EQIP program.
Although EQIP funds may not be used
to pay for construction of storage
facilities at operations with greater than
1,000 USDA animal units (USDA uses a
different definition of animal units than
EPA); EQIP is available to these
facilities for technical assistance and
financial assistance for other practices.
To gather information on State
activities concerning AFOs, EPA
assembled information into a report
entitled, "State Compendium: Programs
and Regulatory Activities Related to
Animal Feeding Operations, Final
Report," dated December 1999, and
continues to update information
concerning state operations (see "Profile
of NPDES Permits and CNMP Permit
Requirements for CAFOs," updated
periodically). The following discussion
draws on information from these
reports.
EPA estimates that, under the existing
EPA regulations, approximately 9,000
operations with more than 1,000 AU are
CAFOs and should be permitted, and
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2969
approximately 4,000 operations with
300 AU to 1,000 AU should be
permitted. However, only an estimated
2,520 CAFOs are currently covered
under either a general permit or an
individual permit. The 43 states
authorized to implement the NPDES
program for CAFOs have issued
coverage for approximately 2,270
facilities, of which about 1,150 facilities
are under general permits and about
1,120 facilities are under individual
permits. Of these states, 32 states
administer their NPDES CAFO program
in combination with some other State
permit, license, or authorization
program. Often, this additional State
authorization is a construction or
operating permit. Eight of the states
regulate CAFOs exclusively under their
State NPDES authority, while three
others have chosen to regulate CAFOs
solely under State non-NPDES
programs. EPA information indicates
that, as of December, 1999, seventeen of
the 43 states authorized to administer
the NPDES program for CAFOs have
never issued an NPDES permit to a
CAFO.
Of the seven states not authorized to
administer the NPDES program, four
rely solely on federal NPDES permits to
address CAFOs. As of December 1998,
EPA has issued coverage for
approximately 250 facilities under
general NPDES permits.
Virtually all NPDES authorized states
use the federal CAFO definition in their
State NPDES CAFO program. Most
states also use the federal definition for
State non-NPDES CAFO programs. Five
States, however, have developed unique
definitions for their non-NPDES
livestock regulatory programs that do
not follow the federal definition. These
five States typically base their definition
on the number of animals confined,
weight of animals and design capacity
of waste control system, or gross income
of agricultural operation. For example,
Alabama's new general State NPDES
permit covers all operations with at
least 250 animal units. Similarly,
Minnesota issues State (non-NPDES)
feedlot permits to facilities with more
than 10 animal units. Minnesota also
issues individual NPDES permits to
CAFOs as defined under the existing
federal regulations.
The regulation of CAFOs is
challenging, in part, because of the large
number of facilities across the country.
There are approximately 376,000 AFOs.
Regulating, for example, 5 percent of
AFOs would result in some 18,800
permittees. One way of reducing the
administrative burden associated with
permitting such large numbers of
facilities is through the use of general
permits. NPDES regulations provide that
general permits may be issued to cover
a category of dischargers that involves
similar operations with similar wastes.
Operations subject to the same effluent
limitations and operating conditions,
and requiring similar monitoring are the
types of facilities most appropriately
regulated under a general permit. EPA
and some authorized States are using
general permits to regulate CAFOs, and
this trend appears to be increasing.
As mentioned, seventeen of the 43
States authorized to issue NPDES CAFO
permits have never issued an NPDES
permit to a CAFO, although many,
regulate CAFOs under non-NPDES
programs. Under current regulations, an
animal feeding operation that discharges
only in the event of a 25-year, 24-hour
storm event is not considered to meet
the definition of a CAFO (although it
may still be designated as a CAFO). EPA
believes that many of these facilities
have in fact discharged in circumstance
other than the 25-year/24-hour storm
and should be required to obtain a
permit.
The number of non-NPDES permits
issued to AFOs greatly exceeds the
number of NPDES permits issued.
Although the information may be
incomplete on the number of state
permits issued, more than 45,000 non-
NPDES permits or formal authorizations
are known to have been issued through
state AFO programs. The non-NPDES
State authorizations often are only
operating permits or approvals required
for construction of waste disposal
systems. While some impose terms and
conditions on discharges from the •
CAFO, EPA believes that many would
not meet the standards for approval as
NPDES permits. Because these are not
NPDES permits, none meet the
requirement for federal enforceability.
Minnesota alone has issued nearly
25,000 State feedlot permits. Kansas has
issued more than 2,400 State permits, of
which 1,500 have been to facilities with
more than 300 animal units. Indiana has
issued more than 4,000 letters of
approval to AFOs within the State.
South Carolina has issued 2,000
construction permits.
With regard to the discharge
standards included in permits, 28
NPDES authorized States have adopted
the federal feedlot effluent guidelines,
while five authorized States use a more
stringent limit. These more stringent
limits partially .or totally prohibit
discharges related to storm events. For
example, Arkansas regulations prohibit
discharges from liquid' waste
management systems, including those
resulting from periods of precipitation
greater than the 25-year, 24-hour storm
event. In addition, California and North
Carolina rules provide for no discharge
from new waste control structures even
during 100 year storms. Numerous State
CAFO permit programs also impose
requirements that are broader in scope
than the existing federal CAFO
regulations.
Twenty-two States have adopted laws
that their environmental regulations
cannot be more restrictive than the
specific requirements in the federal
regulations. Should any of these states
experience environmental problems
with CAFOs, they must rely on
appropriate state regulations no more
stringent than the federal rules.
Thirty-four States explicitly impose at
least some requirements that address
land application of manure and
wastewater as part of either their NPDES
or non-NPDES program. The most
common requirements among these
States is that CAFO manure and
wastewater, when managed through
land application, be land applied in
accordance with agronomic rates and
that the operator develop and use a
waste management plan. Although some
States do not address how agronomic
rates should be determined, many base
it on the nitrogen heeds of crops, while
some require consideration of
phosphorus as well. The complexity of
waste management plans also varies
between states. Some states have very
detailed requirements for content of
waste management plans, while others
do not. Generally, CAFO operators are
asked to address estimates of annual
nutrient value of waste, schedules for
emptying and applying wastes, rates
and locations for applying wastes,
provisions for determining agronomic
rates, and provisions for conducting
required monitoring and reporting.
Although data was not available for
all States, State agency staff dedicated to
AFOs has increased over the last five
years, hi general, State staff dedicated to
AFOs is relatively small, with average
staff numbers being below four full-time
employees. Several States do not have
any staff specifically assigned to manage
water quality impacts from AFOs,
However, States such as Arkansas,
Minnesota, Wisconsin, and Nebraska
doubled their staff commitment to AFOs
within the last five years. The most
notable increases in State staff assigned
to address AFOs were in Iowa and
North Carolina. Kansas, Minnesota, and
North Carolina have the largest AFO
staffs in the country, with each having
more than 20 full time employees.
One indication that States have an
increasing interest in expanding their
efforts to control water quality impacts
from AFOs is the promulgation of new
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State AFO regulations and program
initiatives. At least twelve states have
developed new regulations related to
AFOs since 1996. (AL, IN, KS, KY, MD,
MS, NC, OK, PA, VT, WA, WY). Kansas,
Kentucky, North Carolina, and
Wyoming passed legislation regarding
swine facilities, with Kentucky and
North Carolina imposing moratoriums
on the expansion of hog AFOs until
State management/regulatory plans
could be developed. Similarly,
Mississippi also has imposed a 2-year
moratorium on any new CAFOs.
Alabama's recent efforts include
developing an NPDES general
permitting rule and a Memorandum of
Agreement with EPA outlining State
agency responsibilities as they relate to
CAFOs. Washington's Dairy Law
subjects all dairy farms with more than
300 animal units to permitting and
requires each facility to develop
nutrient management plans approved by
the National Conservation Resource
Service. Indiana's Confined Feeding
Control Law also requires AFOs to
develop waste management plans and
receive State approval for operating
AFOs.
In conclusion, the implementation of
CAFO programs varies from state-to-
state, as does the implementation of
NPDES programs for CAFOs by NPDES
authorized states. As animal production
continues to become more
industrialized nationwide, a coherent
and systematic approach to
implementing minimum standards is
needed to ensure consistent protection
of water quality. Today's proposal will
continue to promote a systematic
approach to establishing industry
standards that are protective of human
health and the environment.
D. How Do Today's Proposed Revisions
Compare to the Unified National AFO
Strategy?
As described in section III.B, on
March 9,1999, EPA and the U.S.
Department of Agriculture jointly issued
the Unified National Strategy for
Animal Feeding Operations (Unified
AFO Strategy),,which outlined USDA
and EPA's plans for achieving better
control of pollution from animal
agriculture under existing regulations.
The following is a comparison chart that
illustrates how the proposed rule
compares to the Unified AFO Strategy.
Table 3-1 compares the proposed CAFO
rule requirements with the Unified AFO
Strategy and identifies whether the
proposed requirements are consistent
with or not addressed by the Unified
AFO Strategy. The table further shows
that, overall, the proposed rule meets
the intent of the Unified AFO Strategy.
TABLE 3-1 .—PROPOSED RULE/UNIFIED NATIONAL AFO STRATEGY COMPARISON
Summary of proposed rule
Consistent
with Unified
AFO
Strategy
Not
addressed
in Unified
AFO
Strategy
Comment
Proposed Revisions to NPDES Regulations
Definition of AFO (122.23{a)(2))—
AFO includes land application area;'
Clarifies crop language.
Definition of CAFO (122.23(a)(3))—
Change 1,000 animal unit threshold
to 500.
Definition of CAFO (122.23(a)(3))—
Include dry poultry operations.
Definition of CAFO (122.23(a)(3))—
Include Immature animals.
Definition of CAFO (122.23)— Re-
moves 25 year/24-hour storm pro-
vision from definition of CAFO.
Definition of Operation
(122.23(a)(5)) — Includes a person
who exercises substantial oper-
ational control over a CAFO.
Designation as a CAFO (122.23(b))—
In authorized States EPA may des-
ignate an AFO as a CAFO. No in-
spection required a designate facil-
ity that was previously defined or
designated as a CAFO.
Who must apply for an NPDES per-
mit (122.23(c))— CAFOs must ei-
ther apply for a permit or seek a
determination of no potential to dis-
charge.
•
•
•
•
•
•
•
•
•
The Unified AFO Strategy states CNMPs should address land application
of manure. (Sec. 3.1 and 3.2)
Crop language not explicitly addressed in Unified AFO Strategy.
Alternative thresholds not explicitly addressed in Unified AFO Strategy, al-
though Strategy does state EPA will explore alternative ways of defining
CAFOs. (Sec. 5, Issue 3, Item 2.B.).
The Unified AFO Strategy states that regulatory revisions will consider risk,
burden, statutory requirements, enforceability, and ease of implementa-
tion (i.e., clarity of requirements). (Sec. 5, Issue 3, Item 2).
The Unified AFO Strategy states that 5 percent of the AFOs will be subject
to the regulatory program, however, this estimate is provided for the exr
isting regulatory program (see Figure 2). No specific percentage is speci-
fied in the Strategy for the revised regulations.
The Unified AFO Strategy states that in revising regulations EPA intends to
consider defining "...large poultry operations, consistent with the size for
other animal sectors, as CAFOs, regardless of the type of watering or
manure handling system." (Sec. 5, Issue 3, Item 2.B.).
Immature animals not explicitly addressed in Unified AFO Strategy.
The Unified AFO Strategy states EPA will consider "requiring CAFOs to
have an NPDES permit even if they only discharge during a 25-year, 24-
hour or larger storm event." (Sec. 5, Issue 3, Item 2.B.).
The Unified AFO Strategy states EPA will "explore alternative approaches
to ensuring that corporate entities support the efforts of individual
CAFOs to comply with permits and develop and implement CNMPs."
(Sec. 5, Issue 3, Item 2.B.).
The Unified AFO Strategy states EPA will consider "who may designate
and the criteria for designating certain AFOs as CAFOs." (Sec. 5, Issue
3, Item 2.B.).
The Unified AFO Strategy states "the NPDES authority will issue a permit
unless it determines that the facility does not have a potential to dis-
charge. (Sec. 4.2).
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2971
TABLE 3-1 .—PROPOSED RULE/UNIFIED NATIONAL AFO STRATEGY COMPARISON—Continued
Summary of proposed rule
Co-Permitting (1 22.23(c)(3))— Opera-
tors, including any person who ex-
ercises substantial operational con-
trol over a CAFO, must either.apply
for a permit or seek a determina-
tion of no potential to discharge. ,
Issuance of permit (122.23(d))— Di-
rector-must issue permit unless s/
he determines no potential to dis-
charge.
No potential to discharge
(122.23(e)) — Determination must
consider discharge from production
area, land application area, and via
ground waters that have a direct
hydrologic connection to surface
waters.
AFOs not defined or designated
. (122.23(g))— AFOs subject to
NPDES permitting requirements if
they have a discrete conveyance
(i.e., point source) discharge from
production or land .application that
is not entirely storm water.
Non-AFO land application
(122.23(h))— Land application in-
consistent with practices in
41 2.31 (b) arid that result in point
source discharge of pollutants to
Waters of the US may be des-
ignated under 122.26(a)(1)(v).
Agricultural Storm Water Exemp-
tion—Discharges from land applica-
tion area if manure is not applied in
quantities that exceed the land ap-
plication rates calculated using one
of the methods specified in 40 CFR
412.31(b)(1)(iv).
CAFO . permit requirement
(122.23(i)(2))— CAFOs subject to
effluent guidelines if applicable.
CAFO permit requirement
(122.23Q))— Prohibits land applica-
tion of manure that would not serve
agricultural purpose and would like-
ly result in pollutant discharge to
waters of the U.S.
CAFO permit requiremen
(122.23(j)(4))— Permittee must ei
ther provide information to recipien
or, under one co-proposal option
obtain certification that recipient wil
land apply per Permit Nutrient Plan
(PNP), obtain permit, use for othe
purpose, or transfer to 3rd party.
CAFO permit requiremen
(122.23(j)(5))— Permit must require
specified recordkeeping.
Closure (122.23(i)(3))— AFO mus
maintain permit until it no longe
has wastes generated while it wa
a CAFO.
Consistent
with Unified
AFO
Strategy
•
•
•
•
•
•
•
Not
addressed
in Unified
AFO
Strategy
•
••
•
•
Comment
The Unified AFO Strategy states EPA will "explore alternative approaches
'to ensuring that corporate entities support the efforts of individual
CAFOs to comply with permits and develop and implement CNMPs."
(Sec. 5, Issue 3, Item 2.B.).
The Unified AFO Strategy states "the NPDES authority will issue a permit
unless it determines that the facility does not have a potential to dis-
charge. (Sec. 4.2.).
The Unified AFO Strategy establishes a national performance expectation
that all AFOs should develop and implement CNMPs, and that such
CNMPs should address land application of manure. (Sec. 3.1 and 3.2).
The Unified AFO Strategy states "EPA believes that pollution of ground-
water may be a concern around CAFOs. EPA has noted in other docu-
ments that a discharge via hydrologically connected groundwater to sur-
face waters may be subject to NPDES requirements." (Sec. 4.2.).
The Unified AFO Strategy states EPA will consider protecting "sensitive or
highly valuable water bodies such as Outstanding Natural Resources,
sole source aquifers, wetlands, ground water recharge areas, zones of
significant ground/surface water interaction, and other areas." (Sec. 5,
Issue 3, Item 2.B.).
The Unified AFO Strategy states EPA will consider "clarifying whether and
under what conditions AFOs may be subject to NPDES requirements."
(Sec. 5, Issue 3, Item 2.B.).
The Unified AFO Strategy states EPA will consider "clarifying requirements
for effective management of manure and wastewater from CAFOs
whether they are handled on-site or off-site." (Sec. 5, Issue 3, Item 2.
B-). ,
The Unified AFO Strategy states EPA has in the past and will in the future
assume that discharges from the majority of agricultural operations are
exempt, but that the agricultural storm water exemption would not apply
where the discharge is associated with the land disposal of manure or
wastewater from a CAFO and the discharge is not the result of proper
agricultural practices. (Sec. 4.4).
The Unified AFO Strategy states the effluent guidelines revisions will be
closely coordinated with any charges to the NPDES permitting regula-
tions. (Sec. 5, Issue 3, Item 2. A.).
The Unified AFO Strategy provides that all AFOs should develop and im-
plement CNMPs, and that such CNMPs should address land application
of manure to minimize impacts on water quality and public health. (Sec.
3.1 and 3.2).
The Unified AFO Strategy states EPA will consider "clarifying requirements
for effective management of manure and wastewater from CAFOs
whether they are handled on-site or off-site." (Sec. 5, Issue 3, Item 2.
B.).
The Unified AFO Strategy states EPA will consider "establishing specific
monitoring and reporting requirements for permitted facilities." (Sec. 5,
Issue 3, Item 2. B.).
The Unified AFO Strategy provides records should be kept when manure
leaves the CAFO. (Sec.3.3).
Not explicitly addressed in Unified AFO Strategy.
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TABLE 3-1.—PROPOSED RULE/UNIFIED NATIONAL AFO STRATEGY COMPARISON—Continued
Summary of proposed rule
Public access (122.23(1) — Requires
public access to list of NOIsJist of
CAFOs that have prepared PNPs,
and access to executive summary
of PNP upon request.
General Permits (122.28)— Notice of
Intent must include topographic
map and statement re PNP; addi-
tional criteria specified for when in-
dividual permits may be required.
Consistent
with Unified
AFO
Strategy
•
Not
addressed
in Unified
AFO
Strategy
•
•
Comment
Not explicitly addressed in Unified AFO Stratecjv
NOI requirements not explicitly addressed in Unified AFO Strategy.
The Unified AFO Strategy states EPA will consider "requiring i
permits for CAFOs in some situations." (Sec. 5, Issue 3, Item 2.
idividual
B.).
Proposed Revisions to Feedlot Effluent Guidelines Regulations
Production Area— Beef/Dairy
(412.33(a): No discharge except
when designed for 25 year, 24-
hour storm, also inspect/ correct/
pump-out, manage mortalities.
Swine/Poultry (412.43{a)): No dis-
charge.
Land Application (412.33(b) and
412.43(b)) — Develop and Imple-
ment PNP covering the land appli-
cation areas under the control of
the CAFO. Also Include Best Man-
agement Practices.
Land Application (412.31(b)(1)(ii))—
PNP Approved by Certified Spe-
cialist.
New Source Performance Standards
(412.35/45): Various additional re-
quirements.
Additional Measures (412.37) —
Inspect/ correct/ pump-out, manage
mortalities; Land application BMPs,
sampling, training, recordkeeping.
•
•
•
•
•
•
The Unified AFO Strategy indicates the existing effluent guidelines is no
discharge when designed for 25 year, 24-hour storm. (Sec. 5, Issue 3,
Item 2. A).
Strategy states that in developing the revised effluent guidelines EPA is to
assess different management practices that minimize the discharge of
pollutants. (Sec. 5, Issue 3, Item 2. A).
PNP has been identified as a specific subset of a CNMP applicable to
AFOs subject to the regulation. In this manner it is consistent with the
Strategy. It also reinforces that the CNMP is applicable to all AFOs (reg-
ulatory/voluntary) while the PNP is only applicable to those that fall
under the regulatory program. It makes a clear distinction between the
regulatory and voluntary programs addressed in the Strategy.
The PNP is a subset of the CNMP The Strategy identified that CNMPs
"developed to meet the requirements of the NPDES program in general
must be developed by a certified specialist ". (Sec. 4.6).
Strategy states that in developing the revised effluent guidelines EPA Is to
evaluate the need for different requirements for new or expanding oper-
ations. (Sec. 5, Issue 3, Item 2..A).
Strategy states that in developing the revised effluent guidelines EPA is to
assess different management practices that minimize the discharge of
pollutants. (Sec. 5, Issue 3, Item 2. A).
Strategy states that the regulatory revision process will include the estab-
lishment of specific monitoring and reporting requirements for permitted
facilities. • . .
IV. Why is EPA Changing the Effluent
Guidelines for Feedlots and the NPDES
CAFO Regulations?
A. Main Reasons For Revising the
Existing Regulations
Despite more than twenty years of
regulation, there are persistent reports of
discharge and runoff of manure and
manure nutrients from livestock and
poultry operations. While this is partly
due to inadequate compliance with
existing regulations, EPA believes that
the regulations themselves also need
revision. Today's proposed revisions to
the existing effluent guidelines and
NPDES regulations for CAFOs are
expected to mitigate future water quality
impairment and the associated human
health and ecological risks by reducing
pollutant discharges from the animal
produQtion industry.
EPA's proposed revisions also address
the changes that have occurred in the
animal production industries in the
United States since the development of
the existing regulations. The continued
trend toward fewer but larger
operations, coupled with greater
emphasis on more intensive production
methods and specialization, is
concentrating more manure nutrients
and other animal waste constituents
within some geographic areas. This
trend has coincided with increased
reports of large-scale discharges from
these facilities, and continued runoff
that is contributing to the significant
.increase in nutrients and resulting
impairment of many U.S. waterways.
EPA's proposed revisions of the
existing regulations will make the
regulations more effective for the
purpose of protecting or restoring water
quality. The revisions will also make the
regulations easier to understand and
better clarify the conditions under
which an AFO is a CAFO and, therefore,
subject to the regulatory requirements of
today's proposed regulations.
B. Water Quality Impairment Associated
with Manure. Discharge and Runoff
EPA has made significant progress in
implementing CWA programs and in
reducing water pollution. Despite such
progress, however, serious water quality
problems persist throughout the
country. Agricultural operations,
including CAFOs, are considered a
significant source of water pollution in
the United States. The recently released
National Water Quality Inventory: 1998
Report to Congress was prepared under
Section 305(b) of the Clean Water Act.
Under this section of the Act, States
report their impaired water bodies to
EPA, including the suspected sources of
those impairments. The most recent
report indicates that the agricultural
sector (including crop production,
pasture and range grazing, concentrated
and confined animal feeding operations,
and aquaculture) is the leading
contributor to identified water quality
impairments in the nation's rivers and
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2973
' streams, and also the leading
, contributor in the nation's lakes, ponds,
and reservoirs. Agriculture is also
identified as the fifth leading
contributor to identified water quality
impairments in the nation's estuaries.
1998 National Water Quality Inventory
results are illustrated in table 4—1
below.
TABLE 4-1.—FIVE LEADING SOURCES OF WATER QUALITY IMPAIRMENT IN THE UNITED STATES
Rank
••]
A
5
Rivers
Agriculture (59%)
Hydro modification (20%)
Urban Runoff/ Storm Sewers (11%)
Municipal Point Sources (1 0%)
Resource' Extraction (9%)
Lakes
Agriculture (31%)
Hydro modification (15%)
Urban Runoff/Storm Sewers (12%)
Municipal Point Sources (11%)
Atmospheric Deposition (8%)
Estuaries
Municipal Point Sources (28%)
Urban Runoff / Storm Sewers (28%)
Atmospheric Deposition (23%)
Industrial Discharges (15%)
Agriculture (15%)
Source- National Water Quality Inventory: 1998 Report to Congress, USEPA, 2000. Percentage of impairment attributed to each source is
shown in parentheses. For example, agriculture is listed as a source of impairment in 59 percent of impaired river miles. The portion of agricul-
tural" impairment attributable to animal waste (as compared to crop production, pasture grazing, range grazing, and aquaculture) is not specified
in this value. Figure totals exceed 100 percent because water bodies may be impaired, by more than one source.
Table 4—2 presents additional
summary statistics of the 1998 National
Water Quality Inventory. These figures
indicate that the agricultural sector
contributes to the impairment of at least
170,000 river miles, 2.4 million lake
acres, and almost 2,000 estuarine square
miles. Twenty-eight states and tribes
identified specific agricultural sector
activities contributing to water quality
impacts on rivers and streams, and 16
states and tribes identified specific .
agricultural sector activities
contributing to water quality impacts on
lakes, ponds, and reservoirs. CAFOs are
a subset of the agriculture category. For
rivejrs and streams, estimates from these
states indicate that 16 percent of the
total reported agricultural sector
impairment is from the animal feeding
operation industry (including feedlots,
animal holding areas, and other animal
operations), and 17 percent of the
agricultural sector impairment is from
both range and pasture grazing. For
lakes, ponds, and reservoirs, estimates
from these states indicate that 4 percent
of the total reported agricultural sector
impairment is from the animal feeding
operation industry, and 39 percent of
the agricultural sector impairment is
from both range and pasture grazing.
Impairment due specifically to land
application of manure, was not reported.
TABLE 4-2.—SUMMARY OF U.S. WATER QUALITY IMPAIRMENT SURVEY
Total quantity in U.S.
Rivers
3,662,255 miles
Lakes, Ponds, and Reservoirs
41 .6 million acres
Estuaries
90,465 square miles
Waters assessed
23% of total
840,402 miles
42% of total
17.4 million acres
32% of total
28,687 square miles
Quantity impaired by all sources
35% of assessed
291 ,263 miles
45% of assessed
7.9 million acres
44% of assessed
12,482 square miles
Quantity impaired by agriculture3
59% of impaired.
170,750 miles.
31% of impaired.
2,417,801 acres.
15% of impaired.
1 ,827 square miles.
Source: National Water Quality Inventory: 1998 Report to Congress, USEPA, 2000.
aCAFOs are a subset of the agriculture category.
Table 4-3 below lists the leading
pollutants impairing surface water
quality in the United States as identified
in the 1998 National Water Quality
Inventory. The animal production
industry is a potential source of all of
these, but is most commonly associated
with nutrients, pathogens, oxygen-
depleting substances, and solids
{siltation). Animal production facilities
are also a potential source of the other
leading causes of water quality
impairment, such as metals and
pesticides, and can contribute to the
growth of noxious aquatic plants due to
the discharge of excess nutrients.
Animal production facilities may also
contribute' loadings of priority toxic
organic chemicals and oil and grease,
but to a lesser extent than other
pollutants.
TABLE 4-3.—FIVE LEADING CAUSES OF WATER QUALITY IMPAIRMENT IN THE UNITED STATES
Rank
2'
Q
4
5
Rivers
Siltation (38%)
Pathogens (36%)
Nutrients (29%)
Oxygen-Depleting Substances (23%)
Metals (21%)
Lakes
Nutrients (44%)
Metals (27%)
Siltation (15%) '.
Oxygen-Depleting Substances (14%)
Suspended Solids (10%)
Estuaries
Pathogens (47%)
Oxygen-Depleting Substances (42%)
Metals (27%)
Nutrients (23%)
Thermal Modifications (18%)
ini__...
mal modifications are commonly associated with L „ .. ...
Figure totals exceed 100 percent because water bodies may be impaired by more than one source.
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Pollutants associated with animal
production can also originate from a
variety of other sources, such as
cropland, municipal and industrial
wastewater discharges, urban runoff,
and septic systems. The national
analyses described in Section V of this
preamble are useful in assessing the
significance of animal waste as a
potential or actual contributor to water
quality degradation across the United
States. Section V also discusses the
environmental impacts and human
health effects associated with the
pollutants found in animal manure.
C. Recent Changes in the Livestock and
Poultry Industry
EPA's proposed revisions of the
existing effluent guidelines and NPDES
regulations take into account the major
structural changes that have occurred in
the livestock and poultry industries
since the 1970s when the regulatory
controls for CAFOs were first instituted.
These changes include:
• Increased number of animals
produced annually;
• Fewer animal feeding operations
and an increase in the share of larger
operations that concentrate more
animals, manure and wastewater in a
single location;
• Geographical shifts in where
animals are produced; and
• Increased coordination between
animal feeding operations and
processing firms.
1. Increased Livestock and Poultry
Production
Since the 1970s, total consumer
demand for meat, eggs, milk and dairy
products has continued to increase. To
meet this demand, U.S. livestock and
poultry production have risen sharply,
resulting in an increase in the number
of animals produced and the amount of
manure and wastewater generated
annually.
Increased sales from U.S. farms is
particularly dramatic in the poultry
sectors, as reported in the Census of
Agriculture (various years). In 1997,
turkey sales totaled 299 million birds. In
comparison, 141 million turkeys were
sold for slaughter in 1978. Broiler sales
totaled 6.4 billion chickens in 1997, up
from 2.5 billion chickens sold in 1974.
The existing CAFO regulations
effectively do not cover broiler
operations because they exclude
operations that use dry manure
management systems. Red meat
production also rose during the 1974-
1997 period. The number of hogs and
pigs sold increased from 79.9 million
hogs in 1974 to 142.6 million hogs in
1997. Sales data for fed cattle (i.e., '
USDA's data category on "cattle
fattened on grain and concentrates") for
1975 show that 20.5 million head were
marketed. By 1997, fed cattle marketings
totaled 22.8 million head. The total
number of egg laying hens rose from 0.3
million birds in 1974 to 0.4 million
birds in 1997. The number of dairy cows
on U.S. farms, however, dropped from
more than 10.7 million cows to 9.1
million cows over the same period.
Not only are more animals produced
and sold each year, but the animals are
also larger in size. Efficiency gains have
raised animal yields in terms of higher
average slaughter weight. Likewise,
production efficiency gains at egg laying
and dairy operations have resulted in
higher per-animal yields of eggs and
milk. USDA reports that the average
number of eggs produced per egg laying
hen was 218 eggs per bird in 1970
compared to 255 eggs per bird in 1997.
The National Milk Producers Federation
reports that average annual milk
production rose from under 10,000
pounds per cow in 1970 to more than
16,000 pounds per cow in 1997. In the
case of milk production, these efficiency
gains have allowed farmers to maintain
or increase production levels with fewer
animals. Although animal inventories at
dairy farms,may be lower, however, this
may not necessarily translate to reduced
manure volumes generated because
higher yields are largely attributable to
improved and often more intensive
feeding strategies that may exceed the
animal's ability for uptake. This excess
is not always incorporated by the
animal and may be excreted.
2. Increasing Share of Larger, More
Industrialized Operations
The number of U.S. livestock and
poultry operations is declining due to
ongoing consolidation in the animal
production industry. Increasingly,
larger, more industrialized, highly
specialized operations account for a
greater share of all animal production.
This has the effect of concentrating
more animals, and thus more manure
and wastewater, in a single location,
and raising the potential for significant
environmental damages unless manure
is properly stored and handled.
USDA reports that there were 1.1
million livestock and poultry farms in
the United States in 1997, about 40
percent fewer than the 1.7 million farms
reported in 1974. Farms are closing,
especially smaller operations that
cannot compete with large-scale, highly
specialized, often lower cost, producers.
Consequently, the livestock and poultry
industries are increasingly dominated
by larger operations. At the same time,
cost and efficiency considerations are
pushing farms to become more
specialized and intensive. Steep gains in
production efficiency have allowed
farmers to produce more with fewer
animals because of higher per-animal
yields and quicker turnover of animals
between farm production and consumer
market. As a result, annual production
and sales have increased, even though
the number of animals on farms at any
one time has declined (i.e., an increase
in the number of marketing cycles over
the course of the year allows operators
to maintain production levels with
fewer animals at any given time,
although the total number of animals
produced by the facility over the year
may be greater).
The increase in animal densities at
operations is evident by comparing the
average number of animals per
operation between 1974 and 1997, as
derived from Census of Agriculture
data. In the poultry sectors, the average
number of birds across all operations is
four to five times greater in 1997 than
in 1974. In 1997, the number of broilers
per operation averaged 281,700 birds,
up from 73,300 birds in 1974. Over the
same period, the average number of egg
laying hens per operation rose from
1,100 layers to 5,100 layers per farm,
and the average number of turkeys per
operation rose from'2,100 turkeys to
8,600 turkeys. The average number of
hogs raised per operation rose from
under 100 hogs to more than 500 hogs
between 1974 and 1997. The average
number of fed cattle and dairy cows per
operation more than doubled during the
period, rising to nearly 250 fed cattle
and 80 milking cows by 1997.
This trend toward fewer, larger, and
more industrialized operations has
contributed to large amounts of manure
being produced at a single geographic
location. The greatest potential risk is
from the largest operations with the
most animals given the sheer volume of
manure generated at these facilities.
Larger, specialized facilities often do not
have an adequate land base for manure
disposal through land application. A
USDA analysis of 1997 Census data
shows that animal operations with more
than 1,000 AU account for more than 42
percent of all confined animals but only
3 percent of cropland held by livestock
and poultry operations. As a result,
large facilities need to store significant
volumes of manure and wastewater
which have the potential, if not properly
handled, to cause significant water
quality impacts. By comparison, smaller
operations manage fewer animals and
tend to concentrate less manure at a
single farming location. Smaller
operations also tend to be more
diversified, engaging in both animal and
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crop production. These operations often
have sufficient cropland and fertilizer
needs to land apply manure generated
by the farm's livestock or poultry
business, without exceeding that land's
nutrient requirements.
Another recent analysis from USDA
confirms that as animal production
operations have become larger and more
specialized operations, the opportunity
to jointly manage animal waste and crop
nutrients has decreased. Larger
'operations typically have inadequate
land available for utilizing manure
nutrients. USDA estimates that the
amount of nitrogen from manure
produced by confinement operations
.increased about 20 percent between
1982 and 1997, while average acreage
on livestock and poultry farms declined.
Overall, USDA estimates that cropland
controlled by operations with confined
animals has the assimilative capacity to
absorb about 40 percent of the
calculated manure nitrogen generated
by these operations. EPA expects this
excess will need to be transported
offsite.
3. Geographic Shifts in Where Animals
are Raised
During the 1970s, the majority of
, farming operations were concentrated in
rural, agricultural areas and manure
nutrients generated by animal feeding
operations were readily incorporated as
a fertilizer for crop production. In an
effort to reduce transportation costs and
streamline distribution between the
animal production and food processing
sectors, livestock and poultry operations
, have tended to cluster near slaughtering
arid manufacturing plants as well as
near end-consumer markets. Ongoing
structural and technological change in
these industries also influences where
facilities operate and contributes to
locational shifts from the more
traditional farm production regions to
the more emergent regions.
Operations in more traditional
producing states tend to grow both
livestock and crops and tend to have
adequate cropland for land application
of manure. Operations in these regions
also tend to be smaller in size. In
contrast, confinement operations in
more emergent areas, such as hog
operations in North Carolina or dairy
operations in the Southwest, tend to be
larger in size and more intensive types
of operations. These operations tend to
be more specialized and often do not
have adequate land for application of
manure nutrients. Production is growing
rapidly in these regions due to
competitive pressures from more
specialized producers who face lower
per-unit costs of production. This may
be shifting the flow of manure nutrients
away from more traditional agricultural
areas, often to areas where these
nutrients cannot be easily absorbed.
As reported by Census data, shifts in
where animals are grown is especially
pronounced in the pork sector.
Traditionally, Iowa has been the top
ranked pork producing state. Between
1982 and 1997, however, the number of
hogs raised in that state remained
relatively constant with a year-end
inventory average of about 14.2 million
pigs. In comparison, year-end hog
inventories in North Carolina increased
from 2.0 million pigs in 1982 to 9.6
million pigs in 1997. This locational
shift has coincided with reported
nutrient enrichment of the waters of the
Pamlico Sound in North Carolina.
Growth in hog production also occurred
in other emergent areas, including
South Dakota, Oklahoma, Wyoming,
Colorado, Arizona, and Utah.
Meanwhile, production dropped in
Illinois, Indiana, Wisconsin, and Ohio.
The dairy industry has seen similar
shifts in where milk is produced,
moving from the more traditional
Midwest and Northeast states to the
Pacific and Southwestern states.
Between 1982 and 1997, the number of
milk cows in Wisconsin dropped from
1.9 million to 1.3 million. MiJk cow
inventories have also declined in other
traditional states, including Illinois,
Indiana, Iowa, Minnesota, Missouri,
New York, Pennsylvania, Ohio,
Connecticut, Maryland, and Vermont.
During the same period, milk cow
inventories in California rose from 0.9
million in 1982 to 1.4 million in 1997.
In 1994, California replaced Wisconsin
as the top milk producing state. Milk
cow inventories have also increased in
Texas, Idaho, Washington, Oregon,
Colorado, Arizona, Nevada, and Utah.
.These locational shifts have coincided
with reported nutrient enrichment of
waters, including the Puget Sound and
Tillamook Bay in the northwest, the
Everglades in Florida, and Erath County
in Texas, and also elevated salinity
levels due to excess manure near milk
production areas in southern
California's Chino Basin.
4. Increased Linkages between Animal
Production Facility and Food Processors
Over the past few decades, closer ties
have been forged between growers and
various industry middlemen, including
packers, processors, and cooperatives.
Increased integration and coordination
is being driven by, the competitive
nature of agricultural production and
the dynamics of the food marketing
system, in general, as well as seasonal
fluctuations of production, perishability
of farm products, and the inability to
store and handle raw farm output.
Closer ties between the animal
production facility and processing
firms—either through contractual
agreement or through corporate
ownership of CAFOs—raises questions
of who is responsible for ensuring
proper manure disposal and
management at the animal feeding site.
This is especially true given the current
trend toward larger animal confinement
operations and the resultant need for
increased animal waste management. As
operations become larger and more
specialized, they may contract out some
phases of the production process.
Farmers ana ranchers have long used
contracts to market agricultural
commodities. However, increased use of
production contracts is changing the
organizational structure of the
individual industries. Under a
production contract, a business other
than the feedlot where the animals are
raised and housed, such as a processing
firm, feed mill, or animal feeding
operation, may own the animals and
may exercise further substantial
operational control over the operations
of the feedlot. In some cases, the
processor may specify in detail the
production inputs used, including the
genetic material of the animals, the
types of feed used, and the production
facilities where the animals are raised.
The processor may also influence the
number of animals produced at a site. In
general, these contracts do not deal with
management of manure and waste
disposal. Recently, however, some
processors have become increasingly
involved in how manure and waste is
managed at the animal production site.
The use of production contracts in the
livestock and poultry industries varies
by commodity group. Information from
USDA indicates that production
contracts are widely used in the poultry
industry and dominate broiler
production. Production contracting is
becoming increasingly common in the
hog sector, particularly for the finishing
stage of production in regions outside
the Corn Belt.
Production contracting has played a
critical role in the growth of integrators
in the poultry sectors. Vertical
integration has progressed to the point
where large, multifunction producer-
packer-processor-distributor firms are
the dominant force in poultry and egg
production and marketing. Data from
USDA on animal ownership at U.S.
farms illustrates the use of production
contracts in these sectors. In 1997,
USDA reported that 97 percent of all
broilers raised on U.S. farms were not
owned by the farmer. In the turkey £ind
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lor
egg laying sectors, use of production
contracts is less extensive since 70
percent and 43 percent of all birds in
these sectors, respectively, were not
owned by the farmer. In the hog sector,
data from USDA indicate that
production contracting may account fc
66 percent of hog production among
larger producers in the Southern and
Mid-Atlantic states. This differs from
the Midwest, where production
contracting accounted for 18 percent of
hog production in 1997.
By comparison, production contracts
are not widely used in the beef and
dairy sectors. Data from USDA indicate
that less than 4 percent of all beef cattle
and 1 percent of all milking cows were
not owned by the farmer in 1997.
However, production contracts are used
in these industries that specialize in a
single stage of livestock production,
such as to "finish" cattle prior to
slaughter or to produce replacement
breeding stock. However, this use
constitutes a small share of overall
production across all producers.
To further examine the linkages
between the animal production facility
and the food processing firms, and to
evaluate the geographical implications
of this affiliation, EPA conducted an
analysis that shows a relationship
between areas of the country with an
excess of manure nutrients from animal
production operations and areas with a
large number of meat packing and
poultry slaughtering facilities. This
manure—if land applied—would be in
excess of crop uptake needs and result
in over application and enrichment of
nutrients. Across the pork and poultry •
sectors, this relationship is strongest in
northwest Arkansas, where EPA
estimates a high concentration of excess
manure nutrients and a large number of
poultry and hog processing facilities. By
sector, EPA's analysis shows that there
is excess poultry manure nutrients and
a large number of poultry processing
plants in the Delmarva Peninsula in the
mid-Atlantic, North Carolina, northern
Alabama, and also northern Georgia. In
the hog sector, the analysis shows
excess manure nutrients and a large
number of meat packing plants in Iowa,
Nebraska and Alabama. The analysis
also shows excess manure, nutrients
from hogs in North Carolina, but
relatively fewer meat packing facilities,
which is likely explained by continuing
processing plant closure and
consolidation in that state. More
information on this analysis is provided
in the rulemaMng record.
D. Improve Effectiveness of Regulations.
As noted in Section IV.B, reports of
continued discharges and runoff from
animal production facilities have
persisted in spite of regulatory controls
that were first instituted in the 1970s.
EPA is proposing to revise the effluent
guidelines and NPDES regulations to
improve their effectiveness by making
the regulations simpler and easier to
understand and implement. Another
change intended to improve the
. effectiveness of the regulations is
clarification of the conditions under
which an AFO is a CAFO and is,
therefore, subject to the NPDES
regulatory requirements.,!]! addition,
EPA is revising the existing regulation
to remove certain provisions that are no
longer appropriate..
The existing regulations were
designed, to prohibit the release of
wastewater from the feedlot site, but did
not specifically address discharges that
may occur when wastewater or solid
manure mixtures are applied to crop,
pasture, or hayland. The proposed
regulations address the environmental
risks associated with manure
management. The proposed revisions
also are more reflective of current farm
production practices and waste
management controls.
Today's proposed revised regulations
also seek to improve the effectiveness of
the existing regulations by focusing on
those operations that produce the
majority of the animal manure and
wastewater generated annually. EPA
estimates that the proposed regulations
will regulate, as CAFOs, about 7 to 10
percent of all animal confinement
operations nationwide, and will capture
between 64 percent and 70 percent of
the total amount of manure generated at
CAFOs annually, depending on the
proposed regulatory alternative
(discussed in more detail'in Section
VIA). Under the existing regulations,
few operations have obtained NPDES
permits. Presently, EPA and authorized
States have issued approximately 2,500
NPDES permits. This is less than 1
percent of the estimated 376,000 animal
confinement operations in the United
States. EPA's proposed revisions are
intended to ensure that all CAFOs, as
defined under the proposed regulations,
will apply for and obtain a permit.
V. What Environmental and Human
Health Impacts Are Potentially Caused
by CAFOs?
The 1998 National Water Quality
Inventory, prepared under Section
305(b) of the Clean Water Act, presents
information on impaired water bodies
based on reports from the States. This
recent report indicates that the
agricultural sector (which includes
concentrated and confined animal
feeding operations, along with
aquaculture, crop production, pasture
grazing, and range grazing) is the
leading contributor to identified water
quality impairments in the nation's
rivers and lakes, and the fifth leading
contributor in the nation's estuaries.
The leading pollutants or stressors of
rivers and streams include (in order of
rank) siltation, pathogens (bacteria),
nutrients, and oxygen depleting
substances. For lakes, ponds, and
reservoirs, the leading pollutants or
stressors include nutrients (ranked first),
siltation (ranked third), oxygen
depleting substances (ranked fourth),
and suspended solids (ranked fifth). For
estuaries, the leading pollutants or
stressors include pathogens (bacteria) as
the leading cause, oxygen depleting
substances (ranked second), and
nutrients (ranked fourth).
The sections which follow present the
pollutants associated with livestock and
poultry operators, of which CAFOs are
a subset, the pathways by which the
pollutants reach surface water, and their
impacts on the environment and human
health. Detailed information can be
found in the Environmental Assessment
of the Proposed Revisions to the
National Pollutant Discharge
Elimination System Regulation and
Effluent Guidelines for Concentrated
Animal Feeding Operations. The
Environmental Assessment and the
supporting references mentioned here
are included in Section 8.1 of the
Record for this proposal.
A. Which Pollutants Do CAFOs Have the
Potential to Discharge and Why Are .
They of Concern?
The primary pollutants associated
with animal Waste are nutrients
(particularly nitrogen and phosphorus),
organic matter, solids, pathogens, and
odorous/volatile compounds. Animal
waste is also a source of salts and trace
elements, and to a lesser extent,
antibiotics, pesticides, and hormones.
Each of these types of pollutants is
discussed hi the sections which follow.
The actual composition of manure
depends on the animal species, size,
maturity, and health, as well as on the
composition (e.g., protein content) of
animal feed.
I. Nutrients (Nitrogen, Phosphorus, and
Potassium)
The 1998 National Water Quality
Inventory indicates that nutrients are
the leading stressor in impaired lakes,
ponds, and reservoirs. They are the
third most frequent stressor in impaired
rivers and streams, and the fourth
greatest stressor in impaired estuaries.
The three primary nutrients in manure
are nitrogen, phosphorus, and
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potassium. (Potassium also contributes
to salinity.)
• Nitrogen in fresh, manure exists in
both organic forms -(including urea) and
inorganic forms (including ammonium,
ammonia, nitrate, and nitrite). In fresh
manure, 60 to 90 percent of total
nitrogen is present in organic forms.
Organic nitrogen is transformed via
microbial processes to inorganic forms,
which are bioavailable and therefore
have fertilizer value. As an example of
the quantities of nutrients discharged
from AFOs, EPA estimates that hog
operations in eastern North Carolina
generated 135 million pounds of
nitrogen per year as of 1995.
Phosphorus exists in solid and
dissolved phases, in both organic and
inorganic forms. Over 70 percent of the
phosphorus in animal manure is in the
organic form. As the waste ages,
phosphorus mineralizes to inorganic
phosphate compounds which are
available to plants. Organic phosphorus
compounds are generally water soluble
and may leach through soil to
groundwater and run off into surface
waters. Inorganic phosphorus tends to
adhere to soils and is less likely to leach
into groundwater. Animal wastes
typically have lower
nitrogen:phosphorus ratios than crop
requirements. The application of
manure at a nitrogen-based agronomic
rate can, therefore, result in application
of phosphorus at several times the
agronomic rate. Soil test data in the
United States confirm that many soils in
areas dominated by animal-based
agriculture have elevated levels of
phosphorus.
Potassium contributes to the salinity
of animal manure which may in turn
contribute salinity to surface water
polluted by manure. Actual or
anticipated levels of potassium in
surface water and groundwater are
unlikely to pose hazards to human
health or aquatic life. However,
applications of high salinity manure are
likely to decrease the fertility of the soil.
In 1998, USDA studied the amount of
manure nitrogen and phosphorus
production for confined animals relative
to crop uptake potential. USDA
evaluated the quantity of nutrients
available from recoverable livestock
manure relative to crop growth
requirements, by county, based on data
from the 1997 Census of Agriculture.
The analyses were intended to
determine the amount of manure that
can be recovered and used. The analyses
did not consider manure from grazing
animals in pasture, excluded manure
lost to the environment, and also
excluded manure lost in dry storage and
treatment. It is not currently possible to
completely recover all manure.
Losses to the environment can occur
through runoff, erosion, leaching to
groundwater, and volatilization
(especially for nitrogen in the form of
ammonia). These losses can be
significant. Considering typical
management systems, the 1998 USDA
study reported that average manure
nitrogen losses range from 31 to 50
percent for poultry, 60 to 70 percent for
cattle (including the beef and dairy
categories), and 75 percent for swine.
The typical phosphorus loss is 15
percent.
The USDA study also looked at the
potential for available manure nitrogen
and phosphorus generated in a county
to meet or exceed plant uptake and
removal in each of the 3,141 mainland
counties. Based on this analysis of 1992
conditions, available manure nitrogen
exceeds crop system needs in 266
counties, and available manure
phosphorus exceeds crop system needs
in 485 counties. The relative excess of •
phosphorus compared to nitrogen is not
surprising, since manure is typically
nitrogen-deficient relative to crop needs.
Therefore, when manure is applied to
meet a crop's nitrogen requirement,
phosphorus is typically over-applied.
USDA's analyses do not evaluate
environmental transport of applied
manure nutrients. Therefore, an excess
of nutrients iii a particular county does
not necessarily indicate that a water
quality problem exists. Likewise, a lack
of excess'nutrients does not imply the
absence of water quality problems.
Nevertheless, the analyses provide a
general indicator of excess nutrients on
a broad basis. •
2. Organic Matter
Livestock manures contain many
carbon-based, biodegradable
compounds. Once these compounds •
reach surface water, they are
decomposed by aquatic bacteria and
other microorganisms. During this
process dissolved oxygen is consumed,
which in turn reduces the amount of
oxygen available for aquatic animals.
The 1998 National Water Quality
Inventory indicates that oxygen-
depleting substances are the second
leading stressor in estuaries. They are
the fourth greatest stressor both in
impaired rivers and streams, and in
impaired lakes, ponds, and reservoirs.
Biochemical oxygen demand (BOD) is
an indirect measure of the concentration
of biodegradable substances present in
an aqueous solution.
3. Solids
The 1998 National Water Quality
Inventory indicates that suspended
solids are the fifth leading stressor in
lakes, ponds, and reservoirs. Solids are
measured as total suspended solids, or
TSS. (Solids can also be measured as
total dissolved solids, or TDS.) Solids
from animal manure include the manure
itself and any other elements that have
been mixed with it. These elements can
include spilled feed, bedding and litter
materials, hair, feathers, and corpses. In
general, the impacts of solids include
increasing the turbidity of surface
waters, physically hindering the
functioning of aquatic plants aiid
animals, and providing a protected
environment for pathogens.
4. Pathogens
Pathogens are disease-causing
organisms including bacteria, viruses,
protozoa, fungi, and algae. The 1998
National Water Quality Inventory
indicates that pathogens (specifically
bacteria) are the leading stressor in
impaired estuaries and the second most
prevalent stressor in impaired rivers and
streams. Livestock manure contains
countless microorganisms, including
bacteria, viruses, protozoa, and
parasites. Multiple species of pathogens
may be transmitted directly from a host
animal's manure to surface water, and
pathogens already in surface water may
increase in number due to loadings of
animal manure nutrients and organic
matter. In 1998, the Centers for Disease
Control and Prevention reported on an
Iowa investigation of chemical and
microbial contamination near large scale
swine operations. The investigation
demonstrated the presence of pathogens
not only in manure lagoons used to
store swine waste before it is land
applied, but also in drainage ditches,
agricultural drainage wells, tile line
inlets and outlets, and an adjacent river.
Over 150 pathogens found in
livestock manure are associated with
risks to humans. The protozoa
Cryptosporidium parvum and Giardia
species are frequently found in animal
manure and relatively low doses can
cause infection in humans. Bacteria
such as Escherichia coli O157:H7 and
Salmonella species are. also often found
in livestock manure and have also been
associated with waterborne .disease. A
recent study by USDA revealed that
about half the cattle at the nation's
feedlots carry E. coli. The bacteria
Listeria monocytogenes is ubiquitous in
nature, and is commonly found in the
intestines of wild and domestic animals
without causing illness. L.
monocytogenes is commonly associated
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with foodborne disease. The pathogens
C. parvum, Giardia, E. coli O157:H7,
and L. monocytogenes are able to
survive and remain infectious in the
environment for long periods of time.
Although the pathogen Pfiesteria
piscicida is not found in manure,
researchers have documented
stimulation of Pfiesteria growth by
swine effluent discharges, and have
strong field evidence that the same is
true for poultry, waste. Research has also
shown that this organism's growth can
be highly stimulated by both inorganic
and organic nitrogen and phosphorus
enrichments. Discussions of Pfiesteria
impacts on the environment and on
human health are presented later in this
section.
5. Salts
The salinity of animal manure is
directly related to the presence of
dissolved mineral salts. In particular,
significant concentrations of soluble
salts containing sodium and potassium
remain from undigested feed that passes
unabsorbed through animals. Other
major cations contributing to manure
salinity are calcium and magnesium; the
major anions are chloride, sulfate,
bicarbonate, carbonate, and nitrate.
Salinity tends to increase as the volume
of manure decreases during
decomposition and evaporation. Salt
buildup deteriorates soil structure,
reduces permeability, contaminates
groundwater, and reduces crop yields.
In fresh waters, increasing salinity can
disrupt the balance of the ecosystem,
making it difficult for resident species to
remain. Li laboratory settings, drinking
water high in salt content has inhibited
growth and slowed molting of mallard
ducklings. Salts also contribute to
degradation of drinking water supplies.
6. Trace Elements
The 1998 National Water Quality
Inventory indicates that metals are the
fifth leading stressor in impaired rivers,
the second leading stressor in impaired
lakes, and the third leading stressor in
impaired estuaries. Trace elements in
manure that are of environmental
concern include arsenic, copper,
selenium, zinc, cadmium, molybdenum,
nickel, lead, iron, manganese,
aluminum, and boron. Of these, arsenic,
copper, selenium, and zinc are often
added to animal feed as growth
stimulants orbiocides. Trace elements
may also end up in manure through use
of pesticides, which are applied to
livestock to suppress houseflies and
other pests. Trace elements have been
found in manure lagoons used to store
swine waste before it is land applied,
and in drainage ditches, agricultural
drainage wells, and tile line inlets and
outlets. They have also been found in
rivers adjacent to hog and cattle
operations.
Several of the trace elements in
manure are regulated in treated
municipal sewage sludge (but not
manure) by the Standards for the Use or
Disposal of Sewage Sludge, promulgated
under the Clean Water Act and
published in 40 C.F.R. Part 503. These
include arsenic, cadmium, chromium,
copper, lead, mercury, molybdenum,
nickel, selenium, and zinc. Total
concentrations of trace elements in
animal manures have been reported as
comparable to those in some municipal
sludges, with typical values well below
the maximum concentrations allowed
by Part 503 for land-applied sewage
sludge. Based on this information, trace
elements in agronomically applied
manures should pose little risk to
human health and the environment.
However, repeated application of
manures above agronomic rates could
result in exceedances of the cumulative
metal loading rates established in Part
503, thereby potentially impacting
human health and the environment.
There is some evidence that this is
happening. For example, in 1995, zinc
and copper were found building to
potentially harmful levels on the fields
of a hog farm in North Carolina.
7. Odorous/Volatile Compounds
Sources of odor and volatile
compounds include animal confinement
buildings, manure piles, waste lagoons,
and land application sites. As animal
wastes are degraded by microorganisms,
a variety of gases are produced. The four
main gases generated are carbon
dioxide, methane, hydrogen sulfide, and
ammonia. Over 150 other odorous
compounds have also been identified
with animal manure. Aerobic conditions
yield mainly carbon dioxide, while
anaerobic conditions generate both
methane (60 percent to 70 percent) and
carbon dioxide (30 percent). Anaerobic
conditions, which dominate in typical,
unaerated animal waste .lagoons, are
also associated with the generation of
hydrogen sulfide and about 40 other
odorous compounds, including volatile
fatty acids, phenols, mercaptans,
aromatics, sulfides, and various esters,
carbonyls, and amines. Once airborne,
these volatile pollutants have the .
potential to be deposited onto nearby
streams, rivers, and lakes.
Up to 50 percent or more of the
nitrogen in fresh manure may be in
ammonia form or converted to ammonia
relatively quickly once manure is
excreted. Ammonia is volatile and
ammonia losses from animal feeding
operations can be considerable. A study
of atmospheric nitrogen published in
1998 reported that, in North Carolina,
animal agriculture is responsible for
over 90 percent of all ammonia
emissions. Ammonia from manure
comprises more than 40 percent of the
total estimated nitrogen emissions from
all sources.
8. Antibiotics
Antibiotics are used in animal feeding
operations and can be expected to
appear in animal wastes. The practice of
feeding antibiotics to poultry, swine,
and cattle evolved from the 1949
discovery that very low levels usually
improved growth. Antibiotics are used
both to treat illness and as feed
additives to promote growth or to
improve feed conversion efficiency. In
1991, an estimated 19 million pounds of
antibiotics were used for disease
prevention and growth promotion in
animals. Between 60 and 80 percent of
all livestock and poultry receive
antibiotics during their productive
lifespan. The primary mechanisms of
elimination are in urine and bile.
Essentially all of an antibiotic
administered is eventually excreted,
whether unchanged or in metabolite
form. Little information is available
regarding the concentrations of
antibiotics in animal wastes, or on their
fate and transport in the environment.
Of greater concern than the presence
of antibiotics in animal manure is the
development of antibiotic resistant
pathogens. Use of antibiotics in raising
animals, especially broad spectrum
antibiotics, is increasing. As a result,
more strains of antibiotic resistant
pathogens are emerging, along with
strains that are growing more resistant.
Normally, about 2 percent of a bacterial
population are resistant to a given
antibiotic; however, up to 10 percent of
bacterial populations from animals'
regularly exposed to antibiotics have
been found to be resistant. In a study of
poultry litter suitable for land
application, about 80 to 100 percent of
bacterial populations isolated from the
litter were found to be resistant to
multiple antibiotics. Antibiotic-resistant
forms of Salmonella, Campylobacter, E.
coli, and Listeria are known or
suspected to exist. An antibiotic-
resistant strain of the bacteria
Clostridium perfringens was detected in
the groundwater below plots of land
treated with pig manure, while it was
nearly absent beneath unmanured plots.
9. Pesticides and Hormones
Pesticides and hormones are
compounds which are used in animal
feeding operations and can be expected
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to appear in animal wastes. Both of
these types of pollutants have been
linked with endocrine disruption.
Pesticides are applied to livestock to
suppress houseflies and other pests.
There has been very little research on
losses of pesticides in runoff from
manured lands. A 1994 study showed
that losses of cyromazine (used to
control flies in poultry litter) in runoff
increased with the rate of poultry
manure applied and the intensity of
rainfall.
Specific hormones are used to
increase productivity in the beef and
dairy industries. Several studies have
shown hormones are present in animal
manures. Poultry manure has been
shown to contain both estrogen and
testosterone. Runoff from fields with
• land-applied manure has been reported
to contain estrogens, estradiol,
progesterone, and testosterone, as well
as their synthetic counterparts. In 1995,
an irrigation pond and three streams in
the Conestoga River watershed near the
Chesapeake Bay had both estrogen and
testosterone present. All of these sites
were affected by fields receiving poultry
litter.
B. How Do These Pollutants Reach
Surface Waters?
Pollutants found in animal manures
can reach surface water by several
mechanisms. These can be categorized
as either surface discharges or other
discharges. Surface discharges can occur
as the result of runoff, erosion, spills,
and dry-weather discharges. In surface
discharges, the pollutant travels
overland or through drain tiles with
surface inlets to a nearby stream, river,
or lake. Direct contact between confined
animals and surface waters is another
means of surface discharge. For other
types of discharges, the pollutant travels
via another environmental medium
(groundwater or air) to surface water.
1. Surface Discharges
a. Runoff. Water that falls on man-
made surfaces or soil and fails to be
absorbed will flow across the surface
and is called runoff. Surface discharges
of manure pollutants can originate from
feedlots and from overland runoff at
land application sites. Runoff is
especially likely at open-air feedlots if
rainfall occurs soon after application, or
if manure is over-applied, or
misapplied. For example, experiments
by Edwards and Daniels in the early
1990s show that, for all animal wastes,
the application rate had a significant
effect on the runoff concentration. In
addition, manure applied to water-
saturated or frozen soils is more likely
to run off the soil surface. Other factors
that promote runoff to surface waters are
•steep land slope, high rainfall, low soil
porosity or permeability, and close
proximity to surface waters. Runoff of
pollutants dissolved into rainwater is a
significant transport mechanism for
water soluble pollutants, which
includes nitrate, nitrite, and organic
forms of phosphorus.
Runoff of manure pollutants has been
identified by states, citizen's groups,
and the media as a factor in a number
of documented impacts from AFOs,
including hog, cattle, and chicken
operations. For example, in 1994,
multiple runoff problems were cited for
a hog operation in Minnesota, and in
1996 runoff from manure spread on land
was identified at hog and chicken
operations in Ohio. In 1997, runoff
problems were identified for several
cattle operations in numerous counties'
in Minnesota. More discussion of runoff
and its impacts on the environment and
human health is provided later in this
section.
b. Erosion. In addition to runoff,
surface discharges can occur by erosion,
in which the soil surface is worn away
by the action of water or wind. Erosion
is a significant transport mechanism for
land-applied pollutants that are strongly
sorbed to soils, of which phosphorus is
one example. A 1999 report by the
Agricultural Research Service (ARS)
noted that phosphorus bound to eroded
sediment particles makes up 60 to 90
percent of phosphorus transported in
surface runoff from cultivated land. For
this reason, most agricultural
phosphorus control measures have
focused on soil erosion control to limit
transport of particulate phosphorus.
However, soils do not have infinite
adsorption capacity for phosphate or
any other adsorbing pollutant, and
dissolved pollutants including
phosphates can still enter waterways via
runoff and leachate even if soil erosion
is controlled.
In 1998, the USDA Natural Resources
Conservation Service (NRCS) reviewed
the manure production of a watershed
in South Carolina. Agricultural
activities in the project area are a major
influence on the streams and ponds in
the watershed, and contribute to
nutrient-related water quality problems
in the headwaters of Lake Murray.
NRCS found that bacteria, nutrients, and
sediment from soil erosion are the
primary contaminants affecting these
resources. The NRCS has calculated that
soil erosion, occurring on over 13,000
acres of cropland in the watershed,
ranges from 9.6 to 41.5 tons per acre per
year.
c. Spills and Dry-Weather Discharges.
Surface discharges can occur through
spills or other discharges from lagoons.
Some causes of spills include
malfunctions such as pump failures,
manure irrigation gun malfunctions, and
pipes or retaining walls breaking.
Manure entering tile drains has a direct
route to surface water. (Tile drains are
a network of pipes buried in fields
below the root zone of plants to remove
subsurface drainage water from the root
zone to a stream, drainage ditch, or
evaporation pond. EPA does not
regulate most tile fields.) hi 1997, the
Ohio Department of Natural Resources
documented chicken manure traveling
through tile drains into a nearby stream.
In addition, spills can occur as a result
of lagoon overflows and washouts from
floodwaters when lagoons are sited on
floodplains. There^are also indications
that discharges from siphoning lagoons
occur deliberately as a means to reduce
the volume in overfull lagoons. Acute
discharges of this kind frequently result
in dramatic fish kills. In 1997, an
independent review of Indiana
Department of Environmental
Management records indicated that the
most common causes of waste releases
in that state were intentional discharge
and lack of operator knowledge, rather
than spills due to severe rainfall
conditions.
Numerous such dry-weather
discharges have been identified. For
example, in 1995, two separate
discharges of 25 million gallons of
manure from hog farms in North
Carolina were documented, and both
resulted in fish kills. Subsequent
discharges of hundreds of thousands of
gallons of manure were documented
from hog operations in Iowa (1996),
Illinois (1997), and Minnesota (1997).
Fish kills were also reported as a result
of two of these discharges. Discharges of
over 8 million gallons of manure from
a poultry operation in North Carolina in
1995 likewise resulted in a fish kill.
Between 1994 and 1996, half a dozen
discharges from poultry operations in
Ohio resulted when manure entered
field tiles. In 1998, 125,000 gallons of
manure were discharged from a dairy
feedlot in Minnesota.
d. Direct Contact between Confined
Animals and Surface Water. Finally,
surface discharges can occur as a result
of direct contact between confined
animals and the rivers or ponds that are
located within their reach. Historically,
farms were located near waterways for
both water access for animals and
discharge of wastes. This practice is
now restricted for CAFOs; however,
despite this restriction, enforcement.
actions are the primary means for
reducing direct access.
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In the more traditional farm
production regions of the Midwest and
Northeast, dairy barns and feedlots are
often in close proximity to streams or
other water sources. This close
proximity to streams was necessary in
order to provide drinking water for the
dairy cows, direct access to cool the
animals in hot weather, and to cool the
milk prior to the wide-spread use of
refrigeration. For CAFO-size facilities
this practice is now replaced with more
efficient means of providing drinking
water for the dairy herd. In addition, the
use of freestall barns and modern
milking centers minimizes the exposure
of dairy cows to the environment. For
example, in New York direct access is
more of a problem for the smaller
traditional dairy farms that use older
methods of housing animals.
In the arid west, feedlots are typically
located near waterbodies to allow for
cheap and easy stock watering. Many
existing lots were configured to allow
the animals direct access to the water.
Certain animals, particularly cattle, will
wade into the water, linger to drink, and
will often urinate and defecate there as
well. This direct deposition of manure
and urine contributes greatly to water v
quality problems. Environmental
problems associated with allowing farm
animals access to waters that are
adjacent to the production area are well
documented in the literature. EPA
Region X staff have documented
dramatically elevated levels of
Escherichia coli in rivers downstream of
AFOs (including CAFOs) with direct
access to surface water. Recent
enforcement actions against direct
access facilities have resulted in the
assessment of tens of thousands of
dollars in civil penalties.
2. Other Discharges to Surface Waters
a. Leaching to Groundwater. Leaching
of land-applied pollutants such as
nitrate dissolved into rainwater is a
significant transport mechanism for
water soluble pollutants. In addition,
leaking lagoons are a source of manure
pollutants to ground water. Although
manure solids purportedly "self-seal"
lagoons to prevent groundwater
contamination, some studies have
shown otherwise. A study for the Iowa
legislature published in 1999 indicates
that leaking is part of design standards
for earthen lagoons and that all lagoons
should be expected to leak. A1995
survey of hog and poultry lagoons in the
Carolines found that nearly two-thirds
of the 36 lagoons sampled had leaked
into the groundwater. Even clay-lined
lagoons have the potential to leak, since
they Can crack or break as they age, and
can be susceptible to burrowing worms.
hi a three-year study (1988-1990) of
clay-lined swine lagoons on the
Delmarva Peninsula, researchers found
that leachate from lagoons located in
well-drained loamy sand had a severe
impact on groundwater quality. •
Pollutant transport to groundwater is
, also greater in areas with high soil
permeability and shallow water tables.
Percolating water can transport
pollutants to groundwater, as well as to
surface waters via interflow.
Contaminated groundwater can deliver
pollutants to surface waters through
.hydrologic connections. Nationally,
about 40 percent of the average annual
stream flow is from groundwater. hi the
Chesapeake Bay watershed, the U.S.
Geological Survey (USGS) estimates that
about half of the nitrogen loads from all
sources to nontidal streams and rivers
originate from groundwater.
b. Discharge to the Air and
Subsequent Deposition. Discharges to
air can occur as a result of volatilization
of both pollutants already present in the
manure and pollutants generated as the
manure decomposes. Ammonia is very
volatile, and can have significant
impacts on water quality through
atmospheric deposition. Other ways that
manure pollutants can enter the air is
from spray application methods for land
applying manure and as particulates
wind-borne hi dust. Once airborne,
these pollutants can find their way into
nearby streams, rivers, and lakes. The
1998 National Water Quality Inventory
indicates that atmospheric deposition is
the third greatest cause of water quality
impairment for estuaries, and the fifth
greatest cause of water quality
impairment for lakes, ponds, and
reservoirs.
The degree of volatilization of manure
pollutants is dependent on the manure
management system. For example,
losses are greater when manure remains
on the land surface rather than being
incorporated into the soil, and are
particularly high when spray
application is performed.
Environmental conditions such as soil
acidity and moisture content also affect
the extent of volatilization.-Losses are
reduced by the presence of growing
plants. Ammonia also readily volatilizes
from lagoons.
Particulate emissions from AFOs may
include dried manure, feed, epithelial
cells, hair, and feathers. The airborne
particles make up an organic dust,
which includes endotoxin (the toxic
protoplasm liberated when a
microorganism dies and disintegrates),
adsorbed gases, and possibly steroids.
At least 50 percent of dust emissions
from swine operations are believed to be
respirable (small enough to be inhaled
deeply into the lungs).
3. A National Study of Nitrogen Sources
to Watersheds
In 1994, the USGS analyzed nitrogen
sources to 107 watersheds. Potential
sources included manure (both point
and nonpoint sources), fertilizers; point
sources, and atmospheric deposition.
The "manure" source estimates include
waste from both confined and
unconfined animals. As may be.
expected, the USGS found that
proportions of nitrogen originating from
various sources differ according to
climate, hydrologic conditions, land
use, population, and physical
geography. Results of the analysis for
selected watersheds for the 1987 base
year show that in some instances,
manure nitrogen is a large portion of the
total nitrogen added to the watershed.
The study showed that, for following
nine watersheds, more than 25 percent
of nitrogen originates from manure:
Trinity River, Texas; White River,
Arkansas; Apalachicola River, Florida;
Altamaha River, Georgia; Potomac
River, Washington, D.C.; Susquehanna
River, Pennsylvania; Platte River,
Nebraska; Snake River, Idaho; and San.
Joaquin River, California. Of these,
California, Texas, Florida, Arkansas,
and Idaho have large populations of
confined animals.
4. State Level Studies of Feedlot
Pollutants Reaching Surface Waters.
There are many studies demonstrating
surface water impacts from animal
feeding operations. These impacts have
been documented for at least the past
decade. For example, in 1991, the U.S.
Fish and Wildlife Service (FWS)
reported on suspected impacts from a
large number of cattle feedlots on Tierra
Blanca Creek, upstream of the Buffalo
Lake National Wildlife Refuge in the
Texas Panhandle. FWS found elevated.
aqueous concentrations of ammonia,
chemical oxygen demand, coliform
bacteria, chloride, nitrogen, and volatile
suspended solids; they also found
elevated concentrations of the feed
additives copper and zinc in the .creek
sediment.
According to Arkansas' 1996 Water
Quality Inventory Report, a publication
of the Arkansas Department of
Environmental Protection, water in the
Grand Neosho basin only partially
supports aquatic life. Land uses there,
primarily confined animal feeding
operations including poultry production
and pasture management, are major
sources of nutrients and chronic high
turbidity. Pathogens sampled in the
Muddy Fork Hydrologic Unit Area, in
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the Arkansas River basin, also exceed
acceptable limits for primary contact
recreation (swimming). This problem
was reported in the 1994 water quality
inventory, and it, too, was traced to
extensive poultry, swine, and dairy
operations in the Moore's Creek basin.
Essentially, all parts of the
subwatershed are impacted by these
activities. Currently, the Muddy Fork
Hydrologic Unit Area Project is a USDA
agricultural assistance, technology
transfer, and demonstration project. A
section 319 water quality monitoring
operation is also ongoing in the
hydrologic unit area.
In 1997, the Hoosier Environmental
Council documented the reduction in
biodiversity due to AFOs in a study of
three Indiana stream systems. That
study found that waters downstream of
animal feedlots (mainly hog and dairy
operations) contained fewer fish and a
limited number of species of fish in
comparison with reference sites. It also
found excessive algal growth, altered
oxygen content, and increased levels of
ammonia, turbidity, pH, and total
dissolved solids.
C. What Are the Potential and Observed
Impacts?
Pollutants in animal manures can
impair surface waters. Such
impairments have resulted in fish kills;
eutrophication and algal blooms;
contamination of shellfish, and
subsequent toxin and pathogen
transmission up the food chain;
increased turbidity and negative
impacts to benthic organisms; and
reduced biodiversity when rivers and
streams become uninhabitable by
resident species. These manure
pollutants can also deteriorate soil
quality and make it toxic to plants. In
addition to these ecological impacts,
pollutants in animal manures can
present a range of risks to human health
when they contaminate drinking water
or shellfish, and when they are present
in recreational waters.
1. Ecological Impacts . .
a. Fish Kills and Other Fishery
Impacts. Fish kills are one of the most
dramatic impacts associated with
manure reaching surface water. Spills,
dry-weather discharges, and runoff can
carry pollutants in manure to rivers and
streams and can result in serious fish
kills. During the years 1987 through
1997, at least 47 incidents of fish kills
have been associated with hog manure.
Another 8 fish kills were attributed to
poultry waste, and 2 with beef/dairy
manure. An additional 20 fish kills were
associated with animal manure for
which one specific animal type was not
identified. These incidents were
reporte'd by the Iowa Department of
Natural Resources, the Maryland
Department of the Environment, the
Natural Resources Defense Council,
several citizen's groups, and numerous
newspapers. These incidents are not
reflective of all states. In Illinois alone,
records indicate that 171 fish kills
attributable to manure discharges were
investigated by Illinois Environmental
Protection Agency personnel between
1979 and 1998. Thousands of fish are
typically killed by one of these events.
Ammonia is highly toxic to aquatic
life and is a leading cause of fish kills.
In a May 1997 incident in Wabasha
County, Minnesota, ammonia in a dairy
cattle manure discharge killed 16,500
minnows and white suckers. Ammonia
and other pollutants in manure exert a
direct biochemical oxygen demand
(BOD) on the receiving water. As
ammonia is oxidized, dissolved oxygen
is consumed. Moderate depressions of
dissolved oxygen are associated with
reduced species diversity, while more
severe depressions can produce fish
kills.
Nitrites pose additional risks to
aquatic life: if sediments are enriched
with nutrients, the concentrations of
nitrites on the overlying water may be
raised enough to cause nitrite poisoning
or "brown blood disease" in fish.
Excess nutrients result in
eutrophication (see section V.C.I.b,
which follows). Eutrophication is
associated with blooms of a variety of
organisms that are toxic to both fish and
humans. This includes the estuarine
dinoflagellate Pfiesteria piscicida,
'which is implicated in several fish kills
and fish disease events. Pfiesteria has
been implicated as the primary
causative agent of many major fish kills
and fish disease events in North
Carolina estuaries and coastal areas, as
well as in Maryland and Virginia
tributaries to the Chesapeake Bay. In
1997, hog operations were identified as
a potential cause of a Pfiesteria outbreak
in North Carolina rivers that resulted in
450,000 fish killed. Also that same year,'
poultry operations were linked to
Pfiesteria outbreaks in the Pokomoke
River and Kings Creek (both in
Maryland) and in the Chesapeake Bay,
in which tens of thousands of fish were
killed.
The presence of estrogen and
estrogen-like compounds in surface
water has caused much concern. These
hormones have been found in animal.
manures and runoff from fields where
manure has been applied. The ultimate
fate of hormones in the environment is
unknown, although early studies
indicate that common soil or fecal
bacteria cannot 'metabolize estrogen.
When present in high enough
concentrations in the environment,
hormones and other endocrine
disrupters including pesticides are
linked to reduced fertility, mutations,
and the death of fish. Estrogen
hormones have been implicated in
widespread reproductive disorders in a
variety of wildlife. There is evidence
that fish in some streams are
experiencing endocrine disruption and
that contaminants including pesticides
may be the cause, though there is no
evidence linking these effects to CAFOs.
b. Eutrophication and Algal Growth.
Eutrophication is the'process in which
phosphorus and nitrogen over-enrich
water bodies and disrupt the balance of
life in that water body. As a result, the
excess nutrients cause fast-growing
algae blooms. The 1998 National Water
Quality Inventory indicates that excess
algal growth is the seventh leading
stressor in lakes, ponds, and reservoirs.
Rapid growth of algae can lower the
dissolved oxygen content of a water
body to levels insufficient to support
fish and invertebrates. Eutrophication
can also affect phytoplankton and
zooplankton population diversity,
abundance, and biomass, and increase
the mortality rates of aquatic species.
Floating algal mats can reduce the
penetration of sunlight in the water
column and thereby limit growth of
seagrass beds and other submerged
vegetation. This in turn reduces fish and
shellfish habitat. This reduction in
submerged aquatic vegetation adversely
affects both fish and shellfish
populations.
Increased algal growth can also raise
the pH of waterbodies, as algae consume
dissolved carbon dioxide to support
photosynthesis. This elevated pH can
harm the gill epithelium of aquatic
organisms. The pH may then drop
rapidly at night, when algal
photosynthesis stops. In extreme cases,
such pH fluctuations can severely stress
aquatic organisms.
Eutrophication is also a factor in the
growth of toxic microorganisms, such as
cyanobacteria (a toxic algae) and
Pfiesteria piscicida, which can affect
human health as well. Decay of algal
blooms and night-time respiration can
further depress dissolved oxygen levels,
potentially leading to fish kills and
reduced biodiversity. In addition, toxic
algae such as cyanobacteria release
toxins as they die, which can severely
impact wildlife as well as humans.
Researchers have documented
stimulation of Pfiesteria growth by
swine effluent discharges, and have
shown that the organism's growth can
be highly stimulated by both inorganic
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and organic nitrogen and phosphorus
enrichments.
c. Wildlife Impacts. As noted earlier,
reduction in submerged aquatic
vegetation due to algal blooms is the
leading cause of biological decline in
Chesapeake Bay, adversely affecting
both fish and shellfish populations. In
marine ecosystems, blooms known as
red or brown tides have caused
significant mortality in marine
mammals. In freshwater, cyanobacterial
toxins have caused many incidents of
poisoning of wild and domestic animals
that have consumed impacted waters.
Even with no visible signs of the algae
blooms, shellfish such as oysters, clams
and mussels can carry the toxins
produced by some types of algae in their
tissue. Shellfish are filter feeders which
pass large volumes of water over their
gills. As a result, they can concentrate
a broad range of microorganisms in their
tissues. Concentration of toxins in
shellfish provides a pathway for
pathogen transmission to higher trophic
organisms. Information is becoming
available to assess the health effects of
contaminated shellfish on wildlife
receptors. Earlier this year, the death of
over 400 California sea lions was linked
to ingestion of mussels contaminated by
a bloom of toxic algae. Previous
incidents associated the deaths of
manatees and whales with toxic and
harmful algae blooms.
In August 1997, the National Oceanic
and Atmospheric Administration
(NOAA) released The 1995 National
Shellfish Register of Classified Growing
Waters. The register characterizes the
Status of 4,230 shellfish-growing water
areas in 21 coastal states, reflecting an
assessment of nearly 25 million acres of
estuarine and non-estuarine waters.
NOAA found that 3,404 shellfish areas
had some level of impairment. Of these,
110 (3 percent) were impaired to
varying degrees by feedlots, and 280 (8
percent) were impaired by "other
agriculture" which could include land
where manure is applied.
Avian botulism and avian cholera
have killed hundreds of thousands of
migratory waterfowl in the past.
Although outbreaks of avian botulism
have occurred since the beginning of the
century, most occurrences have been
reported in the past twenty years, which
coincides with the trend toward fewer
and larger AFOs. The connection
between nutrient runoff, fish kills, and
subsequent outbreaks of avian botulism
was made in 1999 at California's Salton
Sea, when almost 8 million fish died in
one day. The fish kill was associated
with runoff from surrounding farms,
which carried nutrients and salts into
the Salton Sea. Those nutrients caused
algae blooms which in turn lead to large
and sudden fish kills. Since the 1999
die off, the number of endangered
brown pelicans infected with avian
botulism increased to about 35 birds a
day. In addition, bottom feeding birds
can be quite susceptible to metal
toxicity, because they are attracted to
shallow feedlot wastewater ponds and
waters adjacent to feedlots. Metals can
remain in aquatic ecosystems for long
periods of time because of adsorption to
suspended or bed sediments or uptake
by aquatic biota.
Reduction in biodiversity due to
AFOs has been documented in a 1997
study of three Indiana stream systems.
That study shows that waters
downstream of animal feedlots (mainly
hog and dairy operations) contained
fewer fish and a limited number of
species of fish in comparison with
•reference sites. The study also found
excessive algal growth, altered oxygen
content, and increased levels of
ammonia, turbidity, pH, and total
dissolved solids. Multi-generation
animal studies have found decreases in
birth weight, post-natal growth, and
organ weights among mammals
prenatally exposed to nitrite. Finally,
hormones and pesticides have been
implicated in widespread reproductive
disorders in a variety of wildlife.
d. Other Aquatic Ecosystem
Imbalances. Changes to the pH balance
of surface water also threaten the
survival of the fish and other aquatic
organisms. Data from Sampson County,
North Carolina show that "ammonia
rain" has increased as the hog industry
has grown, with ammonia levels in rain
more than doubling between 1985 and
1995. In addition, excess nitrogen can
contribute to water quality decline by
increasing the acidity of surface waters.
In fresh waters, increasing salinity can
also disrupt the balance of the
ecosystem, making it difficult for
resident species to remain. Salts also
contribute to the degradation of
drinking water supplies.
Trace elements (e.g., arsenic, copper,
selenium, and zinc) may also present
ecological risks. Antibiotics, pesticides,
and hormones may have low-level, long-
term ecosystem effects.
2. Drinking Water Impacts
Nitrogen in manure is easily
transformed into nitrate form, which
can be transported to drinking water
sources and present a range of health
risks. In 1990, PA found that nitrate is
the most widespread agricultural
contaminant in drinking water wells,
and estimated that 4.5 million people
are exposed to elevated nitrate levels
from wells. In 1995, several private
wells in North Carolina were found to
be contaminated with nitrates at levels
10 times higher than the State's health.
standard; this contamination was linked
with a nearby hog operation. The
national primary drinking water
standard (Maximum Contaminant Level,
or MCL) for nitrogen (nitrate, nitrite) is
10 milligrams per liter (mg/L). In 1982,
nitrate levels greater than 10 mg/L were
found in 32 percent of the wells in
Sussex County, Delaware; these levels
were associated with local poultry
operations. In southeastern Delaware
and the Eastern Shore of Maryland,
where poultry production is prominent,
over 20 percent of wells were found to
have nitrate levels exceeding 10 mg/L.
Nitrate is not removed by conventional
drinking water treatment processes. Its
removal requires additional, relatively
expensive treatment units.
Algae blooms triggered by nutrient
pollution can affect drinking water by
clogging treatment plant intakes,
producing objectionable tastes and
odors, and increasing production of
harmful chlorinated byproducts (e.g.,
trihalomethanes) by reacting with
chlorine used to disinfect drinking
water. As aquatic bacteria and other
microorganisms degrade the organic
matter in manure, they consume
dissolved oxygen. This can lead to foul
odors and reduce the water's value as a
source of drinking water. Increased
organic matter in drinking water sources
can also lead to excessive production of
harmful chlorinated byproducts,
resulting in higher drinking water
treatment costs.
Pathogens can also threaten drinking
water sources. Surface waters are
typically expected to be more prone
than groundwater to contamination by
pathogens such as Escherichia coli and
Cryptosporidium parvum. However,
groundwater in areas of sandy soils,
limestone formations, or sinkholes are
particularly vulnerable. In a 1997 survey
of drinking water standard violations in
six states over a four-year period, the
U.S. General Accounting Office noted in
its 1997 report Drinking Water:
Information on the Quality of Water
Found at Community Water Systems
and Private Wells that bacterial standard
violations occurred in up to 6 percent of
community water systems each year arid
in up to 42 percent of private wells.
(Private wells are more prone than
public wells to contamination, since
they tend to be shallower and therefore
more susceptible to contaminants
leaching from the surface.) In cow
pasture areas of Door County,
Wisconsin, where a thin topsoil layer is
underlain by fractured limestone
bedrock, groundwater wells have
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2983
commonly been shut down due, to high
bacteria levels.
Each of these impacts can result in
increased drinking water treatment
costs. For example, California's Chino
Basin estimates a cost of over $1 million
per year to remove the nitrates from
drinking water due to loadings from
local dairies. Salt load into the Chino
Basin from local'dairies is over 1,500
tons per year, and the cost to remove
that salt by the drinking water treatment
system ranges from $320 to $690 for
every ton. In Iowa, Des Moines Water
Works planned to spend approximately
$5 million in the early 1990's to install
a treatment system to remove nitrates
from their main sources of drinking
water, the Raccoon and Des Moines
Rivers. Agriculture was cited as a major
source of the nitrate contamination,
although the portion attributable to
animal waste is unknown. In Wisconsin,
the City of Oshkosh has spent an extra
$30,000 per year on copper sulfate to
kill the algae in the water it draws from
Lake Winnebago. The thick mats of
algae in the lake have been attributed to
excess nutrients from manure,
commercial fertilizers, and soil. In
Tulsa, Oklahoma, excessive algal growth
in Lake Eucha is associated with poultry
farming. The city spends $100,000 per
year to address taste and odor problems
in the drinking water.
3. Human Health Impacts
Human and animal health impacts are
primarily associated with drinking
contaminated water, contact with
contaminated water, and consuming
contaminated shellfish. :
a. Nutrients. The main hazard to
human health from nutrients is 'elevated
nitrate levels in drinking water. In
particular, infants are at risk from
nitrate poisoning (also referred to as
methemoglobinemia or "blue baby
syndrome"), which results in oxygen
starvation and is potentially fatal.
Nitrate toxicity is due to its metabolite
. nitrite, which is formed in the
environment, in foods, and in the
human digestive system. In addition to
blue baby syndrome, low blood oxygen
due to methemoglobinemia has also
been linked to birth defects,
miscarriages, and poor health in
humans and animals. These effects are
"' exacerbated by concurrent exposure to
many species of bacteria in water.
Studies in Australia compiled in a
1993 review by Bruning-Fann and
Kaneene showed an increased risk of
congenital malformations with
consumption of high-nitrate
groundwater. Multi-generation animal
studies have found decreases in birth
weight and post-natal growth and organ
weights associated with nitrite exposure
among prenatally exposed mammals.
Nitrate-and nitrite-containing
compounds also have the ability to
cause hypotension or circulatory
collapse. Nitrate metabolites such as N-
nitroso compounds (especially
nitrosamines) have been linked to
, severe human health effects such as
gastric cancer.
Eutrophication can also affect human
health by enhancing growth of harmful
algal blooms that release toxins as they
die. In marine ecosystems, harmful algal
blooms such as red tides can result in
human health impacts via shellfish
poisoning and recreational contact. In
freshwater, blooms of cyanobacteria
(blue-green algae) may pose a serious
health hazard to humans via water
consumption. When cyanobacterial
• blooms die or are ingested, they release
water-soluble compounds that are toxic
to the nervous system and liver. Algal
blooms'can also increase production of
harmful chlorinated byproducts (e.g.,
trihalomethanes) by reacting with
chlorine used to disinfect drinking
water. These substances can result in
increased health risks.
b. Pathogens. Livestock manure has
been identified as a potential source of
pathogens by public health officials.
Humans may be exposed to pathogens
via consumption of contaminated
drinking water and shellfish, or by
contact and incidental ingestion during
recreation in contaminated waters.
Relatively few microbial agents are
responsible for the majority of human
disease outbreaks from water-based
exposure routes. Intestinal infections are
the most common type of waterborne
infection, and affect the most people. A
May, 2000 outbreak of Escherichia coli
O157:H7 in Walkerton, Ontario resulted
in at least seven deaths and 1,000 cases
of intestinal problems; public health
officials theorize.that flood waters
washed manure contaminated with E.
coli into the town's drinking water well.
A study for the period 1989 to 1996
revealed that infections caused by the
protozoa Giardia sp. and
Cryptosporidium parvum were the
leading cause of infectious water-borne
disease outbreaks in which an agent was
identified. C. parvum is particularly
associated with cows, and can produce
gastrointestinal illness, with symptoms
such as severe diarrhea. Healthy people
typically recover relatively quickly from
gastrointestinal illnesses such as
cryptosporidiosis, but such diseases can
be fatal in people with weakened
immune systems. This subpopulation
includes children, the elderly, people
with HIV infection, chemotherapy
patients, and those taking medications
that suppress the immune system. In
Milwaukee, Wisconsin in 1993-, C.
parvum contamination of a public water
supply caused more than 100 deaths
and an estimated 403,000 illnesses. The
source was not identified, but possible
sources include runoff from cow
manure application sites.
In 1999, an E. coli outbreak occurred
at the Washington County Fair in New
York State. This outbreak, possibly the
largest waterborne outbreak of E. coli
O157:H7 in U.S. history, took the lives
of two fair attendees and sent 71 others
to the hospital. An investigation
identified 781 persons with confirmed
or suspected illness related to this
outbreak. The outbreak is thought to
have been caused by contamination of
the Fair's Well 6 by either a dormitory
septic system or manure runoff from the
nearby Youth Cattle Barn.
Contact with pathogens during
recreational activities in surface water
can also result in infections of the skin,
eye, ear, riose, and throat. In 1989, ear
and skin infections and intestinal
illnesses were reported in swimmers as
a result of discharges from a dairy
operation in Wisconsin.
As discussed in the previous section,
excess nutrients result in
eutrophication, which is associated with
the growth of a variety of organisms that
are toxic to humans either through
ingestion or contact. This includes the
estuarine dinoflagellate Pfiesteria
piscicida. While Pfiesteria is primarily
associated with fish kills and fish
disease events, the organism has also
been linked with human health impacts
through dermal exposure. Researchers
working with dilute toxic cultures of
Pfiesteria exhibited symptoms such as
skin sores, severe headaches, blurred
vision, nausea/vomiting, sustained
difficulty breathing, kidney and liver
dysfunction, acute short-term memory
loss, and severe cognitive impairment.
People with heavy environmental
exposure have exhibited symptoms as
well. In a 1998 study, such
environmental exposure was
definitively linked with cognitive
impairment, and less consistently
linked with physical symptoms.
Even with no visible signs of the algae
blooms, shellfish such as oysters, clams
and mussels can carry the toxins
produced by some types of algae in their
tissue. These can then affect people who
eat the contaminated shellfish. The 1995
National Shellfish Register of Classified
Growing Waters published by the
National Oceanic and Atmospheric
Administration (NOAA) identifies over
100 shellfish bed impairments (shellfish
not approved for harvest) due to
feedlots.
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c. Trace Elements. Some of the trace
elements in manure are essential
nutrients for human physiology;
however, they can induce toxicity at
elevated concentrations. These elements
include the feed additives zinc, arsenic,
copper, and selenium. Although these
elements are typically present in
relatively low concentrations in manure,
they are of concern because of their
ability to persist in the environment and
to bioconcentrate in plant and animal
tissues. These elements could pose a
hazard if manure is overapplied to land.
Trace elements are associated with a
variety of illnesses. For example, arsenic
is carcinogenic to humans, based on
evidence from human studies; some of
these studies have found increased skin
cancer and mortality from multiple
internal organ cancers in populations
who consumed drinking water with
high levels of inorganic arsenic. Arsenic
is also linked with noncancer effects,
including hyperpigmentation and
possible vascular complications.
Selenium is associated with liver
dysfunction and loss of hair and nails,
and zinc can result in changes in copper
and iron balances, particularly copper
deficiency anemia.
d. Odors. Odor is a significant
concern because of its documented
effect on moods, such as increased
tension, depression, and fatigue; Odor
also has the potential for vector
attraction, and has been associated with
a negative impact on property values.
Additionally, many of the odor-causing
compounds in manure can cause
physical health impacts. For example,
hydrogen sulfide is toxic, and ammonia
gas is a nasal and respiratory irritant.
4. Recreational Impacts
As discussed above, CAFO pollutants
contribute to the increase in turbidity,
increase in eutrophication and algal
blooms, and reduction of aquatic
populations in rivers, lakes, and
estuaries. Impaired conditions interfere
with recreational activities and aesthetic
enjoyment of these water bodies.
Recreational activities include fishing,
swimming, and boating. Fishing is
reduced when fish populations
decrease. Swimming is limited by
increased risk of infection when
pathogens are present. Boating and
aesthetic enjoyment decline with the
decreased aesthetic appeal caused by
loss of water clarity and water surfaces
clogged by algae. These impacts are
more fully discussed in Section XI of
this preamble.
VI. What Are Key Characteristics of the
Livestock and Poultry Industries?
A. Introduction and Overview
1. Total Number and Size of Animal
Confinement Operations
USDA reports that there were 1.1
million livestock and poultry farms in
the United States in 1997. This number
includes all operations that raise beef,
dairy, pork, broilers, egg layers, and
turkeys, and includes both confinement
and non-confinement (grazing and
rangefed) production. Only operations
that raise animals in confinement will
be subject to today's proposed .
regulations.
For many of the animal sectors, it is
not possible to precisely determine what
proportion of the total livestock
operations are confinement operations
and what proportion are grazing
operations only. Data on the number of
beef and hog operations that raise
animals in confinement are available
from USDA. Since most large dairies
have milking parlors, EPA assumes that
all dairy operations are potentially
confinement operations. In the poultry
sectors, there are few small non-
confinement operations and EPA
assumes that all poultry operations
confine animals. EPA's analysis focuses
on the largest facilities in these sectors
only.
Using available 1997 data from USDA,
EPA estimates that there are about
376,000 AFOs that raise or house
animals in confinement, as defined by
the existing regulations (Table 6-1).
Table 6-1 presents the estimated
number of AFOs and the corresponding
animal inventories for 1997 across select
size groupings. These estimates are
based on the number of "animal units"
(AU) as defined in the existing
regulations at 40 CFR 122, with the
addition of the revisions that are being
proposed for immature animals and
chickens. Data shown in Table 6-1 are
grouped by operations with more than
1,000 AU and operations with fewer
than 300 AU.
As shown in Table 6-1, there were an
estimated 12,660 AFOs with more that
1,000 AU in 1997 that accounted for
about 3 percent of all confinement
operation. In most sectors, these larger-
sized operations account for the
majority of animal production. For
example, in the beef, turkey and egg
laying sectors, operations with more
than 1,000 AU accounted for more than
70 percent of all animal inventories in
1997; operations with more than 1,000
AU accounted for more than 50 percent
of all hog, broiler, and heifer operations
(Table 6-1). In contrast, operations with
fewer than 300 AU accounted for 90
percent of all operations, but a relatively
smaller share of animal production.
USDA personnel have reviewed the
data and assumptions used to derive
EPA's estimates of the number of
confinement operations. Detailed
information on how EPA estimated the
number of AFOs that may be subject to
today's proposed regulations can be
found in the Development Document for
the Proposed Revisions to the National
Pollutant Discharge Elimination System
Regulation and the Effluent Guidelines
for Concentrated Animal Feeding
Operations (referred to as the
"Development Document").
TABLE 6-1.—NUMBER OF AFOs AND ANIMAL ON-SITE, BY SIZE GROUP, 1997
Sector/Size category
Cattle
Veal
Heifers
Dairy
Hogs: GF* ;.
Hogs: FF*
Broilers
Layers: wet3
Layers: dry3
Turkeys
Total
AFOs
>1000 AU
1
<300 AU
(Number of operations)
106,080
850
1,250
116,870
53,620
64,260
34,860
3,110
72,060 '
13,720
2,080
10
300
1,450
1,670
2,420
3,940
50
590
370
102,000
640
200
109,740
48,700
54,810
20,720
2,750
70,370
12,020
Total
>1000AU
<300 AU
(Number of animals, 1000's)
26,840
270
850
9,100
, 18,000
38,740
1,905,070
392,940
392,940
112,800
22,790
10
450
2.050
9,500
21,460
1,143,040
275,060
275,060
95,880
2,420
210
80
5,000
2,700
5,810
476,270
58,940
58,940
2,260
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2985
TABLE 6-1.—NUMBER OF AFOs AND ANIMAL ON-SITE, BY SIZE GROUP, 1997—Continued
Sector/Size category
Total4
Total
AFOs
375,700
>1000 AU
1
12,660
<300 AU
336,590
Total
NA
>1000 AU
NA
<300 AU
NA
Source: Derived by USDA from published USDA/NASS data, including 1997 Census of Agriculture. In some cases, available data are used to
interpolate data for some AU size categories (see EPA's Development Document). Data for veal and heifer operations are estimated by USDA.
1 As defined for the proposed CAFO regulations, one AU is equivalent to: one slaughter or feeder cattle, calf or heifer; 0.7 mature dairy cattle;
2 5 hogs (over 55 pounds) or 5 nursery pigs; 55 turkeys; and 100 chickens regardless of the animal waste system used.
2 "Hogs: FF" are farrow-finish (includes breeder and nursery pigs); "Hogs: GF" are grower-finish only.
3 "Layers: wet" are operations with liquid manure systems; "Layers: dry7'are operations with dry systems.
4 "Total AFOs" eliminates double counting of operations with mixed animal types. Based on survey level Census data for 1992, operations with
mixed animal types account for roughly 25 percent of total AFOs.
2. Total Number of CAFOs" Subject to
the Proposed Regulations
Table 6-2 presents the estimated
number of operations that would be
denned as a CAFO under each of the
two regulatory alternatives being
proposed. The "two-tier structure"
would define as CAFOs all animal
feeding operations with more than 500
AU. The "three-tier structure" would •
define as CAFOs all animal feeding
operations with more than 1,000 AU
and any operation with more than 300
AU, if they meet certain "risk-based"
conditions, as defined in Section VII.
Table 6-2 presents the estimated
number of CAFOs in terms of number of
operations with more than 1,000 AU
and operations for each co-proposed
middle category (operations with
between 500 and 1,000 AU and between
300 and 1,000 AU, respectively).
Based on available USDA data for
1997, EPA estimates that both proposed
alternative structures would regulate
about 12,660 operations with more than
1,000 AU. This estimate adjusts for
operations with more than a single
animal type. The two alternatives differ
in the manner in which operations with
less than 1,000 AU would be defined as
CAFOs and, therefore, subject to
regulation, as described in Section VTI.
As shown in Table 6-2, in addition to
the 12,660 facilities with more than
1,000 AU, the two-tier structure at 500
AU threshold would regulate an
additional 12,880 operations with
between 500 and 1,000 AU.. Including
operations with more than 1,000 AU,
the two-tier structure regulates a total of
25,540 AFOs that would be subject to
the proposed regulations (7 percent of
all AFOs).
Under the three-tier structure, an
estimated 39,330 operations would be
subject to the proposed regulations (10
percent of all AFOs), estimated as the
total number of animal confinement
operations with more than 300 AU, See
Table 6-1. Of these, EPA estimates that
a total of 31,930 AFOs would be defined
as CAFOs (9 percent of all AFOs) and
would need to obtain a permit (Table 6-
2), while an estimated 7,400 operations
would certify that they do not need to
obtain a permit. Among those
operations needing a permit, an
estimated 19,270 operations have
between 300 to 1,000 AU. For more
information, see the Economic Analysis.
TABLE 6-2. NUMBER OF POTENTIAL CAFOs BY SELECT REGULATORY ALTERNATIVE, 1997
Sector/Size category
Cattle
Veal
Heifers
Hogs' GF1 .'.
Hogs1 FF1 •
Turkeys •••
Total 3
"Two-tier"
>300 AU
>500 AU
>750 AU
(#Operations)
4,080
210
1,050
7,140
4,920
9,450
14,140
360
1,690
2,100
39,320
3,080
90
800
3,760
2,690
5,860
9,780
360
1,280
1,280
25,540
2,480
40
420
2,260
2,300
3,460
7,780
210
1,250
740
19,100
>300 AU
>500 AU
(%Total)
4
25
84
6
9
15
41
12
2
15
10.5
3
10
64
3
5
9
28
12
2
9
6.8
>750AU
2
4
34
2
4
'• 5
22
7
2
5
5.1
"Three-
Tier"
>300 AU
(#) (%Total)
• 3,210 3
140, 16
980 78
6,480 6
2,650 5
5,700 9
13,740 39
360 12
1,650 2
2,060 15
31,930 8.5
Source: See Table 6-1. ,
1FF=farrow-finish (includes breeder and nursery pigs); GF=grower finish.
2 "Layers: wet" are operations with liquid manure systems. "Layers: dry" are operations with dry systems.
3 "Total" eliminates double counting of operations with mixed animal types (see Table 6-1).
EPA estimated the number of
operations that may be defined as
CAFOs under the three-tier structure
using available information and
compiled data from USDA, State
Extension experts, and agricultural
professionals. These estimates rely on
information about the percentage of
operations in each sector that would be
impacted by the "risk-based" criteria
described in Section VII. In some cases,
this information is available on a state
or regional basis only and is
extrapolated to all operations
nationwide. EPA's estimates reflect
information from a majority of
professional experts in the field. Greater
weight is given to information obtained
by State Extension agents, since they
have broader knowledge of the industry
in then- state. More detailed information
on how EPA estimated the number of
operations that may be affected by the
proposed regulations under the three-
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tier structure is available in the
rulemaking record and in the
Development Document.
EPA is also requesting comment on
two additional options for the scope of
the rule. One of these is an alternative
two-tier structure with a threshold of
750 AU. Under this option, an estimated
19,100 operations, adjusting for
operations with more than a single
animal type, would be denned as
CAFOs. This represents about 5 percent
of all CAFOs, and would affect an
estimated 2,930 beef, veal, and heifer
operations, 2,260 dairies, and 5,750
swine and 9,980 poultry operations
(including mixed operations). Under the
other alternative, a variation of the
three-tier structure being co-proposed
today, the same 39,320 operations with
300 AU or greater would potentially be
denned as CAFOs. However, the
certification conditions for being
defined as a CAFO would be different
for operations with 300 to 1,000 AU (as
described later in Section Vn). EPA has
not estimated how many operations
would be denned as CAFOs under this
alternative three-tier approach, although
EPA expects that it would be fewer than
the 31,930 estimated for the three-tier
approach being proposed today. If after
considering comments, EPA decides to
further explore this approach, it will
conduct a full analysis of the number of
potentially affected operations.
EPA does not anticipate that many
AFOs with less than 500 AU (two-tier
structure) or 300 AU (three-tier
structure) will be subject to the '
proposed requirements. In the past 20
years, EPA is aware of very few AFOs
that have been designated as CAFOs.
Based on available USDA analyses that
measure excessive nutrient application
on cropland in some production areas
and other farm level data by sector,
facility size and region, EPA estimates
that designation may bring an additional
50 operations under the proposed two-
tier structure each year nationwide. EPA
assumed this estimate to be cumulative
such that over a 10-year period
approximately 500 AFOs may become
designated as CAFOs and therefore
subject to the proposed regulations. EPA
expects these operations to consist of
beef, dairy, farrow-finish hog, broiler
and egg laying operations that are
determined to be significant
contributors to water quality
impairment. Under the three-tier
structure, EPA estimates that fewer
operations would be designated as
CAFOs, with 10 dairy and hog
operations may be designated each year,
or 100 operations over a 10-year period.
Additional information is provided in
the Economic Analysis.
EPA expects that today's proposed
regulations would mainly affect
livestock and poultry operations that
confine animals. In addition to CAFOs,
however, the proposed regulations
would also affect businesses that
contract out the raising or finishing
production phase to a CAFO but
exercise "substantial operational
control" over the CAFO (as described in
Section VII.C.6).
EPA expects that affected businesses
may include packing plants and
slaughtering facilities that enter into a
production contract with a CAFO.
Under a production contract, a
contractor (such as a processing firm,
feed mill, or other animal feeding
operation) may either own the animals
and/or may maintain control over the
type of production practices used by the
CAFO. Processor firms that enter into a
marketing contract with a CAFO are not
expected to be subject to co-permitting
requirements since the mechanism for
"substantial operational control"
generally do not exist. Given the types
of contract arrangements that are
common in the hog and poultry
industries, EPA expects that packers/
slaughterers in these sectors may be
subject to the proposed co-permitting
requirements.
As discussed later in Sections VI.D.l
and VLE.l, EPA estimates that 94 meat
packing plants that slaughter hogs and
270 poultry processing facilities may be
subject to the proposed co-permitting
requirements. Other types of processing
firms, such as further processors, 'food
manufacturers, dairy cooperatives, and
Tenderers, are not expected to be
affected by the co-permitting
requirements since these operations are
further up the marketing chain and do
not likely contract with CAFOs to raise
animals. Fully vertically integrated
companies (e.g., where the packer owns
the CAFO) are not expected to require
a co-permit since the firm as the owner
of the CAFO would require only a single
permit. EPA solicits comment on these
assumptions as part of today's
rulemaking proposal. EPA also expects
that non-CAFO, crop farmers who
receive manure from CAFOs would be
affected under one of the two co-
proposed options relating to offsite
management of manure (see Section
VII).
Additional information is provided in
the Economic Impact Analysis of
Proposed Effluent Limitations
Guidelines and National Pollutant
Discharge Elimination System for
Concentrated Animal Feeding
Operations (referred-to as "Economic
Impact Analysis").
3. Manure and Manure Nutrients
Generated Annually at AFOs
USDA's National Resources
Conservation Service (NRCS) estimates
that 128;2 billion pounds of manure are
"available for land application from
confined AU" from the major livestock
and poultry sectors. EPA believes these
estimates equate to the amount of
manure that is generated at animal
feeding operations since USDA's
methodology accounts for all manure
generated at confinement facilities.
USDA reports that manure nutrients
available for land application totaled 2.6
billion pounds of nitrogen and 1.4
billion pounds of phosphorus in 1997
(Table 6-3). USDA's estimates do not
include manure generated from other
animal agricultural operations, such as
sheep and lamb, goats, horses, and other
farm animal species.
TABLE 6-3. MANURE AND MANURE NUTRIENTS "AVAILABLE FOR LAND APPLICATION", 1997
Sector
Cattle'
Dairy
Hogs
All Poultry
USDA estimates: "available for
application" from confined AU"a
Total
manure
(bill. Ibs)
32.9
45.5
16.3
33.5
Total
nitrogen
Total
phos-
phorus
(Million pounds)
521
636
274
1.153
362
244
277
554
EPA estimates: Percentage share by facility
size group b
>1000
AU
>750 AU
>500 AU
>300AU
(Percent of total manure nutrients applied)
83
23
55
4Q
85
31
6'3
fifi
86
37
69
77
go
43
78
on
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2987
TABLE 6-3. MANURE AND MANURE NUTRIENTS "AVAILABLE FOR LAND APPLICATION", 1997—Continued
Sector
Total
USDA estimates: "available for
application" from confined AU" a
Total
manure
128.2
Total
nitrogen
2,583
Total
phos-
phorus
1,437
EPA estimates: Percentage share by facility
size group"
>1000
AU
49
>750 AU
58,
>500 AU
64
>300AU
72
are
^Manure and nutrients are from USDA/NRCS using 1997 Census of Agriculture and procedures documented developed by USDA Cumbers
e "dr} stafe" andreflect the amount of manure nutrient "available for application from confined AU" and are assumed by EPA to co.ncide w.th
iare of animals within each facility size group for each sector (shown in Table 6-1) across three facility
Si?'Cattle'?'is the sum of USDA's estimate for livestock operations "with fattened cattle" and "with cattle other than fattened cattle and milk
' cows." '
The contribution of manure and
manure nutrients varies by animal type.
Table 6-3 shows that the poultry
industry was the largest producer of
manure nutrients in 1997, accounting
for 45 percent (1.2 billion pounds) of all
nitrogen and 39 percent (0.6 billion
pounds) of all phosphorus available for
land application that year. Among the
poultry sectors, EPA estimates that
approximately 55 percent of all poultry
manure was generated by broilers, while
layers generated 20 percent and turkeys
generated 25 percent. The dairy
industry was.the second largest
producer of manure nutrients,
generating 25 percent (0.6 billion
pounds) of all nitrogen and 17 percent
(0.2 billion pounds) of all phosphorus
(Table 6-3). Together, the hog and beef
sectors accounted for about one-fourth
of all nitrogen and nearly 40 percent of
all phosphorus from manure.
Table 6-3 shows EPA's estimate of the
relative contribution of manure
generated by select major facility size
groupings, including coverage for all
operations with more than 1,000 AU, all
operations with more than 750 AU or
500 AU (two-tier structure), and all
operations with more than 300 AU
' (three-tier structure). EPA estimated
these shares based on the share of
animals within each facility size group
for each sector, as shown in Table 6—1.
Given the number of AFOs that may be
denned as CAFOs and subject to the
proposed regulations (Table 6—1), EPA
estimates that the proposed effluent
guidelines and NPDES regulations will
regulate 5 to 7 percent (two-tier
structure) to 10 percent (three-tier
structure) percent of AFOs nationwide.
Coverage in terms of manure nutrients
generated will vary by the proposed
regulatory approach. As shown in Table
6-3, under the 500 AU two-tier
structure, EPA estimates that the
proposed requirements will capture 64
percent.of all CAFO manure; under the
750 AU two-tier structure, EPA
estimates that the proposed
requirements will capture 58 percent of
all CAFO manure. Under the three-tier
structure, EPA estimates that the
proposed requirements will capture 72
. percent of all CAFO manure generated
annually (Table 6-3). The majority of
this coverage (49 percent) is attributable
to regulation of operations with more
than 1,000 AU.
' Additional information on the
constituents found in livestock and
poultry manure and wastewater is
described in Section V. Information on
USDA's estimates of nutrients available
for land application and on the relative
consistency of manure for the main
animal types is provided in the
Development Document..
B.BeefSubcategory
\. General Industry Characteristics
Cattle feedlots are identified under
NAICS 112112 (SIC 0211, beef cattle
feedlots) and NAICS 112111, beef cattle
ranching and farming (SIC 0212, beef
cattle, except feedlots). This sector
comprises establishments primarily
engaged in feeding cattle and calves for
fattening, including beef cattle feedlots
and feed yards (except stockyards for
transportation).
" The beef cattle industry can be
divided into four separate producer
segments: ^
• Feedlot operations fatten or
"finish" feeder cattle prior to slaughter
and constitute the final phase of fed
cattle production. Calves usually begin
the finishing stage after 6 months of age
or after reaching at least 400 pounds.
Cattle are typically held for 150 to 180
days and weigh between 1,150 to 1,250
pounds (for steers) or 1,050 to 1,150
pounds (for heifers) at slaughter.
• Veal operations raise male dairy
calves for slaughter. The majority of
calves are "special fed" or raised on a
low-fiber diet until about 16 to 20 weeks
of age, when they weigh about 450
pounds.
• Stacker or backgrounding
operations coordinate the flow of
animals from breeding operations to
feedlots by feeding calves after weaning
and before they enter a feedlot. Calves
are kept between 60 days to 6 months
or until they reach a weight of about 400
pounds.
• Cow-calfproducer^ typically
maintain a herd of manure cows, some
replacement heifers,/and a few bulls,
and breed and raise calves to prepare
them for fattening at a feedlot. Calves
typically reach maturity on pasture and
hay and are usually sold at weaning.
Cow-calf operators may also retain the
calves and continue to raise them on
pasture until they reach 600 to 800
pounds and are ready for the feedlot.
Animal feeding operations in this
sector that may be affected by today's
proposed regulations include facilities
that confine animals. Information on the
types of facilities in this sector that may
be covered by the proposed regulations
is provided in Section VII.
USDA reports that there were more
than 106,000 beef feedlots in 1997, with
a total inventory of 26.8 million cattle
(Table 6.1). Due to ongoing
consolidation in the beef sector, the
total number of operations has dropped
by more than one-half since 1982, when
there were 240,000 operations raising
fed cattle. EPA also estimates that there
were 850 veal operations raising 0.3
million head and 1,250 stand-alone
heifer operations raising 0.9 million
head in 1997. Only a portion of these
operations would be subject to the
proposed regulations.
As shown in Table 6-2, under the
two-tier structure, EPA estimates that
there are 3,080 beef feedlots with more
than 500 head (500 AU of beef cattle).
EPA also estimates that there are about
90 veal operations and 800 heifer
operations that may be subject to the
proposed regulations. Under the three-
tier structure, EPA estimates that 3,210
beef feedlots, 140 veal and 980 heifer
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operations with more than 300 head
(300 AU) would meet the "risk-based"
conditions described in Section VII and
thus require a permit.
EPA expects that few operations that
confine fewer than 500 AU of beef, veal,
or heifers, would be designated by the
permit authority. For the purpose of
estimating costs, EPA assumes that no
beef, veal, or heifer operations would be
designated as CAFOs and subject to the
proposed regulations under the three-
tier structure. Under the two-tier
structure, EPA assumes that about four
beef feedlots located in. the Midwest
would be designated annually, or 40
beef feedlots projected over a 10-year
period.
The cattle feeding industry is
concentrated in the Great Flams and
Midwestern states. The majority of
feedlots are located in the Midwest.
However, the majority of large feedlots
(i.e., operations with more than 1,000
head) are located in four Great Plains
states—Texas, Kansas, Nebraska, and
Colorado—accounting for nearly 80
percent of annual fed cattle marketings.
Table 6-1 shows that, although the
majority of beef feedlots (over 98
percent) have capacity below 1,000
head, larger feedlots with more than
1,000 head accounted for the majority of
animal production. In 1997, feedlots
with more than 1,000 head accounted
for 85 percent of the nation's fed cattle
inventory and sales. Cattle feeding has
become increasingly concentrated over
the last few decades. Feedlots have
decreased in number, but increased in
capacity. The decline in the number of
operations is mostly among feedlots
with less than 1,000 head.
The majority of cattle and calves are
sold through private arrangements and
spot market agreements. Production
contracting is not common in the beef
sector. Most beef sector contracts are
marketing based where operations agree
to sell packers a certain amount of cattle
on a predetermined schedule.
Production contracts are uncommon,
but may be used to specialize in a single
stage of livestock production. For
example, custom feeding operations
provide finish feeding under contract.
Backgrounding or stacker operations
raise cattle under contract from the time
the calves are weaned until they are on
a finishing ration in a feedlot. As shown
by 1997 USDA data of animal
ownership, production contracts
account for a relatively small share (4
percent) of beef production. These same
data show that production contracts are
used to grow replacement breeding
stock.
Despite the limited use of contracts
for the finishing and raising phase of
production, EPA expects that no
businesses, other than the CAFO where
the animals are raised, will be subject to
the proposed co-permitting
requirements. Reasons for this
assumption are based on data from
USDA on the use of production
contracts and on animal ownership at
operations in this sector. Additional
information is provided in Section 2 of
the Economic Analysis. EPA is seeking
comment on this assumption as part of
today's notice.
2. Farm Production and Waste
Management Practices
Beef cattle may be kept on unpaved,
partly paved, or totally paved lots. The
majority of beef feedlots use unpaved
open feedlots. In open feedlots,
protection from the weather is often
limited to a windbreak near the fence in
the winter and/or sunshade in the
summer; however, treatment facilities
for the cattle and the hospital area are
usually covered. Confinement feeding
barns with concrete floors are also
sometimes used at feedlots in cold or
high rainfall areas, but account for only
1 to 2 percent of all operations. Smaller
beef feedlots with less than 1,000 head,
especially in areas with severe winter
weather and high rainfall, may use
open-front barns, slotted floor housing,
or housing with sloped gutters.
Wastes produced from beef operations
include manure, bedding, and
contaminated runoff. Paved lots
generally produce more runoff than
unpaved lots. Unroofed confinement
areas typically have a system for
collecting and confining contaminated
runoff. Excessively wet lots result in
decreased animal mobility and
performance. For this reason, manure is
often stacked into mounds for improved
drainage and drying, as well as
providing dry areas for the animals. If
the barn has slotted floors, the manure
is collected beneath slotted floors, and
is scraped or flushed to the end of the
barn where it flows or is pumped to a
storage area for later application via
irrigation or transported in a tank
wagon. Waste may also be collected
using flushing systems.
Waste from a beef feedlot may be
handled as a solid or liquid. Solid
manure storage can range from simply
constructed mounds within the pens to
large stockpiles. In some areas, beef
feedlot operations may use a settling
basin to remove bulk solids from the
pen runoff, reducing the volume of
solids prior to entering a storage pond,
therefore increasing storage capacity. A
storage pond is typically designed to
hold the volume of manure and
wastewater accumulated during the
storage period, including additional
storage volume for normal precipitation,
minus evaporation, and storage volume
to contain a 25-year, 24-hour storm
event. An additional safety volume
termed "freeboard" is also typically
built into the storage pond design.
Veal are raised almost exclusively in
confinement housing, generally using
individual stalls or pens. Veal calves are
raised on a liquid diet and their manure
is highly liquid. Manure is typically
removed from housing facilities by
scraping or flushing from collection
channels and then flushing or pumping
into liquid waste storage structures,
ponds, or lagoons.
Waste collected from the feedlot may
be transported within the site to storage,
treatment, and use or disposal areas.
Solids and semisolids are typically
transported using mechanical
conveyance equipment, pushing the
waste down alleys,' and transporting lie
waste in solid manure spreaders. Flail-
type spreaders, dump trucks, or earth
movers may also be used to transport
these wastes. Liquids and slurries are
transferred through open channels,
pipes, or in a portable liquid tank. The
most common form of utilization is land
application. However, the amount of
cropland and pastureland that is
available for manure application varies
at each operation. Cattle waste may also
be used as a bedding for livestock,
marketed as compost, or used as an
energy source.
Additional information on the types
of farm production and waste
management practices is provided in the
Development Document.
C. Dairy Subcategory
1. General Industry Characteristics
Operations that produce milk are
identified under NAICS 11212, dairy
cattle and milk production (SIC 0241,
dairy farms).
A dairy operation may have several
types of animal groups present,
including:
• Calves (0-5 months);
• Heifers (6-24 months);
• Lactating dairy cows (i.e., currently
producing milk); and;
• Cows close to calving and dry cows
(i.e., not currently producing milk); and
• Bulls.
. Animal feeding operations in this
sector that may be affected by today's
proposed regulations include facilities
that confine animals. Information on the
types of facilities in this sector that may
be covered by the proposed regulations
is provided in Section VII.
In 1997, there were 116,900 dairy
operations with a year-end inventory of
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2989
9.1 million milk cows that produced
156.1 billion pounds of milk (Table 6,1).
Only a portion of these operations
would be subject to the proposed
regulations. As shown in Table 6.2,
under the two-tier structure, EPA
estimates that there are 3,760 dairy
operations that confine more than 350
milk cows (i.e., 500 AU equivalent).
Under the three-tier structure, EPA
estimates that 6,480 dairy operations
with more than 200 head (i.e., 300 AU
equivalent) would meet the "risk-based"
conditions described in Section VII and
thus require a permit.
Table 6-1 shows that dairies with
fewer than 200 head account for the
majority (95 percent) of milking
, operations and account for 55 percent of
the nation's milk cow herd. EPA expects
that under the two-tier structure
designation of dairies with fewer than
350 milk cows would be limited to
about 22 operations annually, or 220
dairies projected over a 10-year time
period. Under the three-tier structure,
EPA expects annual designation of
dairies with fewer than 200 milk cows
would be limited to about 5 operations,
or 50 operations over a 10-year period.
: EPA expects that designated facilities
will be located in more traditional
farming regions. ,
More than one-half of all milk
produced nationally is concentrated
among the top five producing states:
California, Wisconsin, New York,
Pennsylvania, and Minnesota. Other
major producing states include Texas,
Michigan, Washington, Idaho, and Ohio.
Combined, these ten states accounted
for nearly 70 percent of milk production
in 1997. Milk production has been
shifting from traditional to
nontraditional milk producing states.
Operations in the more traditional milk
producing regions of the Midwest and
Mid-Atlantic tend to be smaller and less
industrialized. Milk production at larger
operations using newer technologies
and production methods is emerging in
California, Texas, Arizona, New Mexico,
and Idaho. Milk production in these
states is among the fastest-growing in
the nation, relying on economies of
scale and a specialization in milk
production to lower per-unit production
costs. (Additional data on these trends
are provided in Section IV.C).
Over the past few decades,'the
.number of dairy operations and milk
cow inventories has dropped, while
overall milk production has been
increasing. USDA reports that while the
number of dairy operations dropped by
more than one-half from 277,800 in
1982 to 116,900 in 1997, the amount of
milk produced annually at these
operations rose from 135.5 billion
pounds to 156.1 billion pounds. These,
figures signal trends toward increased
consolidation, large gains in per-cow
output, and increases in average herd
size per facility. From 1982 to 1997, the
average number'of dairy cows per
.facility doubled from 40 cows to.80
cows per facility.
Although milk and dairy food
production has become increasingly
specialized, it has not experienced
vertical integration in the same way. as
other livestock industries. The use of
production contracts is uncommon in
milk production. In part, this is
attributable to the large role of farmer-
owned, farmer-controlled dairy
cooperatives, which handle about 80
percent of the milk delivered to plants
and dealers. Milk is generally produced
under marketing-type contracts through
verbal agreement with their buyer or
cooperative. Data from USDA indicate
that little more than 1 percent of milk
was produced under a production
contract in 1997. Use of production
contracts in the dairy sector is mostly
limited to contracts between two animal
feeding operations to raise replacement
heifers.
Despite the limited use of contracts
between operations to raise replacement
herd, EPA expects that no businesses
other than the CAFO where the animals
are raised will be subject to the
proposed co-permitting requirements.
Reasons for this assumption are based
on data from USDA on the use of
production contracts and on animal
ownership at operations in this sector.
Additional information is provided in
Section 2 of the Economic Analysis..
EPA is seeking comment on this
assumption as part of today's notice of
the proposed rulemaking.
2. Farm Production and Waste
' Management Practices
Animals at dairy operations may be
confined in free-stalls, drylots, tie-stalls,
or loose housing. Some may be allowed
access to exercise yards or open pasture.
The holding area confines cows that are
ready for milking. Usually, this area is
, enclosed and is part of the milking
center, which in turn may be connected
to the barn or located in the immediate
vicinity of the cow housing. Milking
parlors are separate facilities where the
cows are milked and are typically
cleaned several times each day to
remove manure and dirt. Large dairies
tend to have automatic flush systems,
while smaller dairies simply hose down
the area. Larger dairies in the northern
states, however, may be more likely to
use continuous mechanical scraping of
alleys in barns. Cows that are kept in
tie-stalls may be milked directly from
their stalls.
Waste associated with dairy
production includes manure,
contaminated runoff, milking house
waste, bedding, spilled feed and cooling
water. Dairies may either scrape or flush
manure, depending on the solids
content in manure and wastewater.
Scraping systems utilize manual,
mechanical, or tractor-mounted
equipment to collect and transport
manure from the production area.
Flushing systems use fresh or recycled
lagoon water to move manure. Dairy
manure as excreted has a solids content
of about 12 percent and tends to act as
a slurry; however, it can be handled as
a semisolid or a solid if bedding is
added. Semisolid manure has a solids
content ranging from 10 to 16 percent.
Dilution water may be added to the
manure to create a slurry with a solids
content of 4 to 10 percent. If enough
dilution water is added to the manure
to reduce the solids content below 4
percent, the waste is considered to be a
liquid.
Manure in a solid or semisolid state
minimizes the volume of manure that is
handled. In a dry system, the manure is
collected on a regular basis and covered
to prevent exposure to rain and runoff;
sources of liquid waste, such as milking
center waste, are typically handled
separately. In a liquid or slurry system,
the manure is typically mixed with
flushing system water from lagoons; the
milking center effluent is usually mixed
in with the animal manure in the lagoon
or in the manure transfer system to ease
Eumping. Liquid systems are usually
ivored by large dairies because they
have lower labor cost and because the
dairies tend to use automatic flushing
systems.
Methods used at dairy operations to
collect waste include mechanical/tractor
scraper, flushing systems, gutter
cleaner/gravity gutters, and slotted
floors. Manure is typically stored as a
slurry or liquid in a waste storage pond
or in structural tanks. Milking house
waste and contaminated runoff must be
stored as liquid in a waste storage pond
or structure. One common practice for
the treatment of waste at dairies
includes solids separation. Another
common practice for the treatment of
liquid waste at dairies includes
anaerobic lagoons. The transfer of dairy
waste depends on its consistency: liquid
and slurry wastes can be transferred
through open channels, pumps, pipes,
or in a portable tank; solid and semi-
solid waste can be transferred by
.mechanical conveyance, solid manure
spreaders, or by being pushed down
curbed concrete alleys. The majority of
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001/Proposed Rules
dairy operations dispose of their waste
through land application. The amount
of crop and pastureland available for
land application of manure varies by
operation.
Additional information on the types
of farm production and waste
management practices is provided in the
Development Document.
D. Hog Subcategory
1. General Industry Characteristics
Hog operations that raise or feed hogs
and pigs either independently or on a
contract basis are identified under
NAICS 11221, hog and pig farming (SIC
0213, hogs).
Hog operations may be categorized by
six facility types based on the life stage
of the animal in which they specialize: ,
• Farrow-to-wean operations that
breed pigs and ship 10- to 15-pound
pigs to nursery operations.
• Farrowing-nursery operations that
breed pigs and ship 40- to 60-pound
"feeder" pigs to growing-finishing
operations.
• Nursery operations that manage
weaned pigs (more than 10 to 15
pounds) and ship 40- to 60-pound
"feeder" pigs to growing-finishing
operations.
• Growing-finishing or feeder-to-
finish operations that handle 40- to 60-
pound pigs and "finish" these to market
weights of about 255 pounds.
• Farrow-to-finish operations that
handle all stages of production from
breeding through finishing.
• Wean-to-finish operations that
handle all stages of production, except
breeding, from weaning (10- to 15-
pound pigs) through finishing.'
Animal feeding operations in this
sector that may be affected by today's
proposed regulations include facilities
that confine animals. Information on the
types of facilities in this sector that may
be covered by the proposed regulations
is provided in Section vn.
In 1997, USDA reports that there were
117,880 hog operations with 56.7
million market and breeding hogs (Table
6-1). Not all of these operations would
be subject to the proposed regulations.
As shown in Table 6-2, under the two-
tier structure, EPA estimates that there
are 5,860 farrow-finish feedlots
(including breeder and nursery
operations) and 2,690 grower-finish
feedlots with more than 1,250 head (i.e.,
500 All equivalent). Under the three-tier
structure, EPA estimates that 5,700
farrow-finish feedlots (including breeder
and nursery operations) and 2,650
grower-finish feedlots with more than
750 head (i.e., 300 AU equivalent)
would meet the "risk-based" conditions
described in Section VII and thus
require a permit.
Table 6-1 shows that the majority of
hog operations (93 percent) have fewer
than 1,250 head, accounting for about
one-third of overall inventories. Nearly
half the inventories are concentrated
among the 3 percent of operations with
more than 2,500 head. Under the two-
tier structure EPA expects that
designation of hog operations with
fewer than 1,250 head will be limited to
about 20 confinement operations
annually, or 200 operations over a 10-
year time period. Under the three-tier
structure, EPA expects that about 5 hog
operations with fewer than 750 head
would be designated annually, or 50
operations over a 10-year time period.
EPA expects that designated facilities
will be located in more traditional
farming regions.
Hog production is concentrated
among the top five producing states,
including Iowa, North Carolina,
Minnesota, Illinois, and Missouri.
Together these states supply 60 percent
of annual pork supplies. The majority of
operations are located in the Midwest;
however, the Southeast has seen rapid
growth in hog production in the past
decade. Recent growth in this region is
due to increased vertical integration,
proximity to growing consumer markets,
and the mild climate, which offers
lower energy costs and improved feed
efficiency. (Additional data on these
trends are provided in Section IV.C).
The hog sector is undergoing rapid
consolidation and becoming
increasingly specialized. USDA reports
that while the number of hog operations
dropped by nearly two-thirds between
1982 and 1997 (from 329,800 to 109,800
operations), the number of feeder pigs
sold has risen from 20.0 million to 35.0
million marketed head over the same
period. As in other livestock sectors,
increasing production from fewer
operations is attributable to expansion
at remaining operations. Data from
USDA indicate that the average number
of hogs per facility increased from 170
pigs in 1982 to 560 pigs in 1997.
Increasing production is also .
attributable to substantial gains in
production efficiency and more rapid
turnover, which has allowed hog
farmers to produce as much output with
fewer animals.
The hog sector is rapidly evolving
from an industry of small, independent
firms linked by spot markets to an
industry of larger firms that are
specialized and vertically coordinated
through production contracting. This is
particularly true of large-scale hog
production in rapidly growing hog
production states such as North
Carolina. Production contracting is less
common in the Midwest where
coordination efforts are more
diversified.
Information from USDA on animal
ownership at U.S. farms provides ari
indication of the potential degree of
processor control in this sector. Data
from USDA indicate the use of
production contracts accounted for 66
percent of hog production in the
Southern and Mid-Atlantic states in
1997, especially among the larger
producers. This indicates that a large
share of hog production may be under
the ownership or control of processing
firms that are affiliated with hog
operations in this region. This compares
to the Midwest, where production
contracting accounted for 18 percent of
hog production. Production contracting
in the hog sector differs from that in the
beef and dairy sectors since it is
becoming increasingly focused on the
finishing stage of production, with the
farmer ("grower") entering into an
agreement with a meat packing or
processing firm ("integrator").
Production contracts are also used
between two independent animal
feeding operations to raise immature
hogs.
Businesses that contract out the
growing or finishing phase of
production to an AFO may also be
affected by the proposed co-permitting
requirements. Affected businesses may
include other animal feeding operations
as well as processing sector firms. By
NAICS code, meat packing plants are
classified as NAICS 311611, animal
slaughtering (SIC 2011, meat packing
plants). The Department of Commerce
reports that there were a total of 1,393
red meat slaughtering facilities that
slaughter hogs as well as other animals,
including cattle and calves, sheep, and
lamb. Of these, Department of
Commerce's 1997 product class
specialization identifies 83
establishments that process fresh and
frozen pork and 11 establishments that
process or cure pork. These data
generally account for larger processing
facilities that have more than 20
employees. EPA believes that processing
firms that may be affected by the
proposed co-permitting requirements
will mostly be larger facilities that have
the administrative and production
capacity to take advantage of various
contract mechanisms. This assumption
is supported by information from USEA
that indicates that production contracts
in the hog sector are generally
associated with the largest producers
and processors. Section 2 of the
Economic Analysis provides additional
information on the basis for EPA's
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2991
estimate of potential co-permittees. EPA
is seeking comment on this assumption
as part of today's notice of the proposed
rulemaking.
Using these Department of Commerce
data, EPA estimates that 94 companies
engaged in pork processing may be
' subject to the proposed co-permitting
requirements. This estimate does not
include other processors under NAICS
311611, including sausage makers and
facilities that "further process" hog
, hides and other by-products because
these operations are considered to be
further up the marketing chain and
likely do not contract out to CAFOs.
2. Farm Production and Waste
Management Practices
Many operations continue to have the
traditional full range of pork production
phases at one facility, known as farrow-
to-finish operations. More frequently at
new facilities, operations are specialized
and linked into a chain of production
and marketing. The evolution hi farm
structures has resulted in three distinct
production system's-to create pork
products: (1) farrow-to-finish; (2)
farrowing, nursery, and grow-finish
operations; and (3) farrow-to-wean and
wean-finish operations. Most nursery
and farrowing operations, as well as
practically all large operations of any
type, raise pigs in pens or stalls in
environmentally controlled confinement
Chousing. These houses commonly use
slatted floors to separate manure and
wastes from the animal. Open buildings
with or without outside access are
relatively uncommon at large
operations, but can be used in all phases
of pork production. Smaller operations,
particularly in the Midwest, may utilize
open lots or pasture to raise pigs.
Hog waste includes manure and
contaminated runoff. Most confinement
hog operations use one of three waste .
handling systems: flush under slats, pit
recharge, or deep underhouse pits.
Flush housing uses fresh water or
recycled lagoon water to remove manure
from sloped floor gutters or shallow
pits. The flushed manure is stored in
lagoons or tanks along with any
precipitation or runoff that may come
into contact with the manure. Flushing
occurs several times a day. Pit recharge
systems are shallow pits under slatted
floors with 6 to 8 inches of pre-charge
water. The liquid manure is pumped or
' gravity fed to a lagoon approximately
once a week. Deep pit systems start with
several inches of water, and the manure
is stored under the house until it is
pumped out for field application on the
order of twice a year. Most large
operations have 90 to 365 days storage.
• The deep pit system uses less water,
creating a slurry that has higher nutrient
concentrations than the liquid manure
systems. Slurry systems are more
common in the Midwest and the cooler
climates.
Dry manure handling systems include
those used at open buildings and lots,
scraped lots, hoop houses, deep bedded
systems, andhigh rise hog houses.
These systems produce a more solid
manure material that is readily handled
with a tractor or front end loader. The
solids are stored in stacks or covered
until used as fertilizer. In some cases,
solids are composted.
Storage lagoons are used to provide
. anaerobic bacterial decomposition of
organic materials. When only the top
liquid is removed for irrigation or some
other use, a limited amount of
phosphorus-rich sludge accumulates in
the lagoon, which requires periodic
removal. Vigorous lagoon mixing with
an agitator or a chopper prior to
irrigation is sometimes done to
minimize the sludge accumulation. In
certain climates, a settling and
evaporation pond is used to remove
solids, which are dried in a separate
storage area. Some lagoons and tanks are
covered with a synthetic material that
reduces ammonia volatilization. Covers
also prevent rainfall from entering the
system and, ^therefore, reduce disposal
costs.
Land application is the most common
form of utilization. To mitigate odor
problems and volatization of ammonia,
liquid waste can be injected below the
soil surface. Waste may also be
distributed through an irrigation
process. Waste management systems for
hogs often incorporate odor control
measures, where possible.
Additional information on the types
of farm production and waste
management practices is provided in the
Development Document.
E. Poultry Subcategory
1. General Industry Characteristics
Poultry operations can be classified
into three individual sectors based on
the type of commodity in which they
specialize. These sectors include
operations that breed and/or raise:
• Broilers or young meat chickens
that are raised to a live weight of 4 to
4.5 pounds and other meat-type
chickens, including roasters that are
raised to 8 to 9 pounds. Classification:
NAICS 11232, broilers and other meat-
type chickens (SIC 0251, broiler, fryer
and roaster chickens).
• Turkeys and turkey hens, including
whole turkey hens that range from 8 to
15 pounds at slaughter, depending on
market, and also turkey "canners and
cut-ups" that range from 22 to.40
pounds. Classification: NAICS 11233,
turkey production (SIC 0253, turkey and
turkey eggs).
• Hens that lay shell eggs, including
eggs that are sold for human
consumption and eggs that are produced
for hatching purposes. Classification:
NAICS 11231, Chicken egg production
(SIC 0252, chicken eggs) and NAICS
11234, poultry hatcheries (SIC 0254,
poultry hatcheries).
Animal feeding operations in this
sector that may be affected by today's
proposed regulations include facilities
that confine animals. Information on the
types of facilities in this.sector that may
be covered by the proposed regulations
is provided in Section VII.
In 1997, the USDA reports that there
were 34,860 broiler operations that
raised a total of 1.9 billion broilers
during the year. There were also 13,720
turkey operations raising a total 112.8
million turkeys. Operations with egg
layers and pullets totaled 75,170 with
an average annual inventory of 393
million egg layers on-site. (See Table 6—
1). Not all of these operations would be
subject to the proposed regulations.
Under the two-tier structure, EPA
estimates that there are 9,780 broiler
operations, 1,280 turkey operations and .
1,640 egg laying and pullet operations
that have more than 500 AU (i.e.,
operations with more than 50,000
chickens and more than 27,500 turkeys).
Under the three-tier structure, EPA
estimates that 13,740 broiler operations,
2,060 turkey operations and 2,010 egg
laying operations with more than 300
AU (i.e., operations with more than
30,000 chickens and more than 16,500
turkeys) would meet the "risk-based"
conditions described in Section VII and
thus require a permit.
EPA expects few, if any, poultry AFOs
with fewer than 500 AU will be subject
to the revised requirements. As shown
in Table 6-1, most poultry operations
have fewer than 500 AU. Under the two-
tier structure, EPA expects that
designation of broiler operations with
fewer than 50,000 chickens will be
limited to two broiler and two egg
operations being designated annually, or
a total of 40 poultry operations over a
10-year period. EPA expects that no
turkey operations would be designated
as CAFOs and subject to the proposed
regulations. EPA expects that no
confinement poultry operations will be
designated as CAFOs under the
proposed requirements under the three-
tier structure.
Overall, most poultry production is
concentrated in the Southeast and in
key Midwestern states. As in the pork
sector, the Southeast offers advantages
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such as lower labor, land, and energy
costs; proximity to end markets; and
milder weather, which contributes to
greater feed efficiency. Nearly 60
percent of all broiler production is
concentrated among the top five
producing states, including Georgia,
Arkansas, Alabama, Mississippi, and
North Carolina. The top five turkey
producing states also account for about
60 percent of all turkeys sold
commercially. These include North
Carolina, Minnesota, Virginia, Arkansas,
and California. Missouri and Texas are
also major broiler and turkey producing
states. The top five states for egg
production account for more than 40
percent of all egg production, including
Ohio, California, Pennsylvania, Indiana,
and Iowa. Other major egg producing
states include Georgia, Texas, Arkansas,
and North Carolina.
The number of operations in each of
the poultry sectors has been declining
while production has continued to rise.
USDA reports that while the number of
both turkey and broiler operations
decreased by about 10,000 operations
between 1982 and 1997, the number of
animals sold for slaughter rose nearly
twofold: the number of broilers sold
rose from 3.5 billion to 6.7 billion arid
the number of turkeys sold rose from
167.5 million to 299.5 million. During
the same period, the number of egg
operations dropped nearly two-thirds
(from 215,800 operations in 1982),
while the number of eggs produced
annually has increased from 5.8 billion
dozen to 6.2 billion dozen. Increased
production from fewer operations is due
to expanded production from the
remaining operations. This is
attributable to increases in the average
number of animals raised at these
operations as well as substantial gains
in production efficiency and more rapid
turnover, which has allowed operators
to produce more with fewer animals.
Data from USDA indicate that average
inventory size on poultry operations
increased twofold on broiler operations
and rose threefold at layer and turkey
operations between 1982 and 1997.
(Additional data on these trends are
provided in Section IV.C). As in other
sectors, larger operations control most
animal inventories and sales.
The poultry industry is characterized
by increasing integration and
coordination between the animal
production facility and the processing
sector. Vertical integration has
progressed to the point where large
multifunction producer-packer-
processor-distributor firms are the
dominant force in poultry meat and egg
production and marketing. Coordination
through production contracting now
dominates the poultry industry. Today's
integrators are subsidiaries of feed
companies, independent processors, '
cooperatives, meat packers, or retailers,
or affiliates of conglomerate
corporations. These firms may own and/
or direct the entire process from the
production of hatching eggs to the
merchandising of ready-to-eat-sized
poultry portions to restaurants.
Production contracting in the poultry
sector differs from that in the other
livestock sectors since it is dominated
by near vertical integration between a
' farmer ("grower") and a processing firm
("integrator"). Information from USDA
on animal ownership at U.S. farms
provides an indication of the potential
degree of processor control in this
sector. Data from USDA indicate
production contracting accounted for
virtually all (98 percent) of U.S. broiler
production in 1997. This indicates that
nearly all broiler production may be
under the ownership or control of
processing firms that are affiliated with
broiler operations. Production
contracting accounts for a relatively
smaller share of turkey and egg
production, accounting for 70 percent
and 37 percent, respectively.
Businesses that contract out the
growing or finishing phase of
production to an AFO may also be
affected by the proposed co-permitting
requirements. Affected businesses may
include other animal feeding operations
as well as processing sector firms.
Poultry processing facilities are
classified under NAICS 311615, poultry
processing, and NAICS 311999, all other
miscellaneous (SIC 2015, poultry
slaughtering facilities). The Department
of Commerce reports that there were a
total of 558 poultry and egg slaughtering
and processing facilities in 1997. Of
these, Department of Commerce's 1997
product class specialization for poultry
identifies 212 establishments that
process young chickens, 15 that process
hens or fowl, and 39 that process
turkeys (rounded to the nearest ten).
These data generally account for larger
processing facilities that have more than
20 employees. EPA believes that
processing firms that may be affected by
the proposed co-permitting
requirements will mostly be larger
facilities that have the administrative
and production capacity to take
advantage of various contract
mechanisms. Section 2 of the Economic
Analysis provides additional
information on the basis for EPA's
estimate of potential co-permittees. EPA
is seeking comment on this assumption
as part of today's notice of the proposed
rulemaking.
Using these Department of Commerce
data, EPA estimates that about 270
companies engaged in poultry
slaughtering may be subject to the
proposed co-permitting requirements.
This estimate does not include egg
processors under NAICS 311999
because these operations are considered
to be further up the marketing chain and
likely do not contract out to CAFOs.
2. Farm Production and Waste
Management Practices
There are two types of basic poultry
confinement facilities—those that are
used to raise turkeys and broilers for
meat and those that are used to house
layers. Broilers and young turkeys are
grown on floors on beds of litter
shavings, sawdust, or peanut hulls;
layers are confined to cages. Broilers are
reared in houses where an absorbent
bedding'material such as wood shavings
or peanut hulls are placed on 'the floor
at a depth of several inches. Breeder
houses contain additional rows of slate
for birds to roost. Broilers may also be
provided supplementary heat during the
early phases of growth. Turkeys as well
as some pullets and layers are produced
in a similar fashion. Pullets or chickens
that are not yet of egg laying age are
raised in houses on litter, or in cages.
Most commercial layer facilities employ
cages to house the birds, although
smaller laying facilities and facilities
dedicated to specialty eggs such as
brown eggs or free range eggs may use
pastures or houses with bedded floors.
Layer cages are suspended over a r
bottom story in a high-rise house, or
over a belt or scrape gutter. The gutter
may be a shallow sloped pit, in which
case water is used to flush the wastes to
a lagoon. Flush systems are more likely
to be found at smaller facilities in the
South.
Poultry waste includes manure,
poultry mortalities, litter, spilt water,
waste feed, egg wash water, and also
flush water at operations with liquid
manure systems. Manure from broiler,
breeder, some pullet operations, and
turkey operations is allowed to
accumulate on the floor where it is
mixed with the litter. In the chicken
houses, litter close to drinking water
access forms a cake that is removed
between flocks. The rest of the litter
pack generally has low moisture content
and is removed every 6 months to 2
years, or between flocks to prevent
disease. This whole house clean-out
may also require storage, depending on
the time of year it occurs. The litter is
stored in temporary field stacks, in
covered piles, or in stacks within a
roofed facility to help keep it dry.
Commonly, treatment of broiler and
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2993
turkey litter includes composting which
stabilizes the litter into a relatively
odorless material and which increases
the market value of the litter. Proper
composting raises the temperature
within the litter such that pathogens are
reduced, allowing reuse of the litter in
the poultry house.
The majority of egg laying operations
also use dry manure handling. Laying
hens are kept in cages and the manure
drops below the cages in both dry and
liquid manure handling systems. Most
of the dry manure laying operations are
constructed as high rise houses where
the birds are kept on the second floor
and the manure drops to the first floor
sometimes referred to as the pit.
Ventilation flows through the house
from the roof down over the birds and
into the pit over the manure before it is
forced out through the sides of the
house. The ventilation drys the manure
as it piles up into cones. Manure can be
stored in high rise houses for up to a
year before requiring removal. In dry
layer houses with belts, the manure that
drops below the cage collects on belts
and is transported to a separate covered
storage area. Layer houses with liquid
systems use either a shallow pit or
alleyway located beneath the cages for
flushing. Flushed wastes are pumped to
a lagoon.
Because of the large number of
routine mortalities associated with large
poultry operations, the disposal of dead
birds is occasionally a resource concern.
Poultry facilities must have .adequate
means for disposal of dead birds in a
sanitary manner. To prevent the spread
of disease, dead birds are usually
collected daily. Disposal alternatives
include incineration, rendering,
composting, and in-ground burial or
burial in disposal tanks. Much of the
waste from poultry facilities is land
applied.
• Additional information on the types
of farm production and waste
management practices is provided in the
Development Document.
VII. What Changes to the NPDES CAFO
Regulations Are Being Proposed?
A. Summary of Proposed NPDES
Regulations
EPA is co-proposing, for public
comment, two alternative ways to
structure the NPDES regulation for
defining which AFOs are CAFOs. Both
structures represent significant
improvements to the existing regulation
and offer increased environmental
protection. The first alternative proposal
is a "two-tier structure," and the second
is a "three-tier structure." Owners or
operators of all facilities that are defined
as CAFOs in today's proposal, under .
either alternative, would be required to
apply for an NPDES permit.
In the first co-proposed alternative,
EPA is proposing to replace the current
three-tier structure.in 40 CFR 122.23
with a two-tier structure. See proposed
§ 122.23(a)(3) for the two-tier structure,
included at the end of this preamble. All
AFOs with 500 or more animal units
would be defined as, CAFOs, and those
with fewer than 500 animal units would '
be CAFOs only if they are designated as
such by EPA or the State NPDES permit
authority.
In the second co-proposed alternative,
EPA is proposing to retain the current
three-tier structure. All AFOs with 1,000
or more animal units would be defined
as CAFOs, and those with less than 300
animals units would be CAFOs only if
they are designated by EPA or the State
NPDES permit authority. Those with
300 to 1,000 animal units would be
CAFOs if they meet one or more of
several specific conditions, and today's
proposal would revise the existing
conditions. These facilities could also
be designated as CAFOs if they are
found to be significant contributors of
pollutants to waters of the United
States. Further, all AFOs between 300
and 1,000 animal units would be
required to certify to the permit
authority that they do not meet any of
the conditions. Those facilities unable
to certify would be required to apply for
a permit.
These regulatory alternatives are two
of six different approaches that the
Agency considered. Two of the
approaches are also being seriously
considered, but are not being proposed
in today's action because they have not
been fully analyzed. However, EPA is
soliciting public comment on these two
alternatives. One of the alternatives is a
two-tier structure, similar to what is
being proposed today, but would
establish a threshold at the equivalent of
750 AU. The other alternative under
consideration is a three-tier structure,
with different certification and
permitting requirements for facilities in
the 300 AU to 1,000 AU tier. These
alternatives are described in more detail
in Section VII.B.5. After reviewing
public comment, EPA may decide to
pursue either of these alternatives.
In addition, EPA considered two other
alternative approaches that are not being
proposed. One would retain the existing
three-tier structure for determining
which AFOs are CAFOs, and would
retain the existing conditions for
determining which of the middle tier
facilities are CAFOs while incorporating
all other proposed changes to the CAFO
regulations (e.g., the definition of CAFO,
the duty to apply, etc.). The sixth
approach that was not proposed which .
is similar to today's second alternative
proposal, would retain the three-tiered
structure and would revise the
conditions for determining which of the
middle tier facilities are CAFOs in the
same manner as today's proposal, hi
contrast with today's proposal, it would
not require all AFOs in the middle tier
to certify they are not CAFOs.
EPA is soliciting comment on all six
scenarios for structuring how to
determine which facilities are CAFOs.
TABLE 7-1 .—PROPOSED REVISION TO THE STRUCTURE OF THE CAFO REGULATION
Proposed revision
Section
Historical Record ••
Two-Tier Structure
Three-Tier Structure
Comparative Analysis
Alternative Scenarios Considered but not Proposed
B.1
B.2
B.3
B.4
B.5
Besides changing the structure of the
regulation, under both of today's
proposals, EPA is also proposing
changes to clarify, simplify, and
strengthen the NPDES regulation,
including to: clarify the definition of an
AFO; discontinue the use of the term
"animal unit" and eliminate the mixed
animal type multiplier when calculating
numbers of animals; eliminate the 25-
year, 24-hour storm permit exemption;
and impose a clearer and more broad
duty to apply for a permit on all
operations defined or designated as a
CAFO.
EPA is also proposing several changes
that determine whether a facility is an
AFO or whether it is a CAFO and
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therefore must apply for an NPDES
permit on that basis. Specifically, EPA
is proposing to formally define a CAFO
to: include both the animal production
area and the land application area;
broaden coverage in the poultry sector
to include all chicken operations, both
wet and dry; add coverage for stand-
alone immature swine and heifer
operations; lower the NPDES threshold
that defines which facilities are CAFOs
for other animal sectors, including
horses, sheep, lambs and ducks; and
require facilities that are no longer
active CAFOs to remain permitted until
their manure and storage facilities are
properly closed and they have no
potential to discharge CAFO manure or
wastewater. This section also discusses
the concept of "direct hydrologic
connection" between ground water and
surface water and its application to
CAFOs. Considerations for providing
regulatory relief to small businesses are
also discussed.
EPA is also proposing changes that
clarify the scope of NPDES regulation of
CAFO manure and process wastewater.
Today's proposal modifies the criteria
for designation of AFOs as CAFOs on a
case-by-case basis and explicitly
describes EPA's authority to designate
facilities as CAFOs in States with
approved NPDES programs. EPA is also
proposing that the permit authority
must require entities that have
"substantial operational control" over a
CAFO to be co-permitted, and is
requesting comment on an option for
States to waive this requirement if they
provide another means of ensuring that
excess manure transported from CAFOs
to off-site recipients is properly land
applied. EPA also is clarifying Clean
Water Act requirements concerning
point source discharges at non-CAFOs.
These changes are summarized in
Table 7-2 and described in the noted
sections..
TABLE 7-2.—PROPOSED REVISIONS FOR DEFINING CAFOs OTHER POINT SOURCES
Proposed revision
Clarify the vegetation language in the definition of an AFO
Discontinue use of the term animal unit
Eliminate the mixed animal type multiplier
Remove the 25-year, 24-hour storm event exemption from the definition of a CAFO
Clarify the duty to apply, that all CAFOs must apply for an NPDES permit ..
Definition of a CAFO includes both production area and land application area
Include dry poultry operations
Include stand-alone immature swine and heifer operations
Coverage of other sectors besides beef, dairy, swine and poultry
Require facilities that are no longer CAFOs to remain permitted until proper closure
Applicability of direct hydrologica! connection to surface water
Regulatory relief for small businesses
Designation criteria
Designation of CAFOs by EPA in States with NPDES authorized programs
Co-permitting of entities that exert substantial operational control over a CAFO
Point source discharges at AFOs that are not CAFOs
Section
C 1
C2a
C2 b
C2c
C2d
C2e
C2f
C 2 a
C2h
C2i
C2i
C2 k
C 3
C4
C5
C.6
We also extensively discuss matters
associated with the land application of
CAFO-generated manure and
wastewater, including how the
agricultural storm water exemption
applies to the application of CAFO-
generated manure both on land under
the control of the CAFO operator and
off-site. EPA is proposing to require
CAFO owners or operators to land apply
manure in accordance with proper
agricultural practices, as defined in
today's regulation. EPA is also co-
proposing two different means of
addressing the off-site transfer of CAFO-
generated manure. In one proposal,
CAFO owners or operators would be
allowed to transfer manure off-site only
to recipients who certify to land apply
according to proper agricultural
practices; to maintain records of all off-
site transfers; and to provide adequate
information to off-site manure recipients
to facilitate proper application.
Alternately, the certification would not
be required, and CAFOs owners or
operators would simply be required to
maintain records and provide the
required information to recipients. See
Table 7—3 for references.
TABLE 7-3.—UNO APPLICATION OF CAFO-GENERATED MANURE AND WASTEWATER
Proposed revision
Section
Why Is EPA Regulating Land Application of CAFO Waste?
How Is EPA Interpreting the Agricultural Storm Water Exemption with Respect to Land Application of CAFO-generated Manure?
How Is EPA Proposing to Regulate Discharges from Land Application of CAFO-generated Manure by CAFOs?
How is EPA Proposing to Regulate Land Application of Manure and Wastewater by non-CAFOs?
D.1
D.2
D.3
D.3
EPA is proposing several revisions to
requirements contained in CAFO
permits. The requirement that CAFO
owners or operators develop and
implement a "Permit Nutrient Plan," or
"PNP," is discussed extensively,
including clarifying that a PNP is the
EPA-enforceable subset of a
Comprehensive Nutrient Management
Plan, or "CNMP."
EPA is also proposing to apply
revised Effluent Limitation Guidelines
and standards (and hereafter referred to
as effluent guidelines or ELG) to beef,
dairy, swine, poultry and veal
operations that are CAFOs by definition
in either of the two proposed structures,
or that have 300 AU to 1,000 AU in the
three-tier structure and are designated.
NPDES permits issued to small
operations that are CAFOs by
designation (those with fewer than 500
AU in the two tier structure, and those
with fewer than 300 AU in the three tier
structure) would continue to be based
on Best Professional Judgment (BPJ) of
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2D95
the permit authority. Similarly, CAFOs
in other sectors (i.e., horse, sheep,
lambs, and ducks) that have greater than
1,000 AU will continue to be subject to
the existing effluent guidelines and
standards (as they are in the existing
regulation), while those with 1,000 AU
or fewer would be issued permits based
on BPJ, as today's proposed effluent
guidelines does not include revisions to
sectors other than beef, dairy, swine,
poultry and veal.
Today's NPDES proposal includes
monitoring, reporting and record
keeping requirements that are consistent
with those required by today's proposed
effluent guidelines (discussed in section
VIII). In addition, EPA is proposing to
require all individual permit applicants,
as well as new facilities applying for
coverage under general NPDES permits,
to submit a copy of the cover sheed and
Executive Summary of their draft Permit
Nutrient Plan (PNP) to the permit
authority along with the permit
application or Notice of Intent (NOI).
EPA is proposing to require all CAFOs
to submit a notification to the permit
authority, within three months of
obtaining permit coverage, that their
Permit Nutrient Plans (PNPs) have been
developed, along with a fact sheet
summarizing the PNP. Further, EPA is
proposing to require permittees to
submit a notification to the permit
authority whenever the PNP has been
modified.
EPA is also proposing to require that
the permit authority include certain
conditions in its general and individual
permits that specify: (1) Requirements
for land application of manure and
wastewater, including methods for
developing the allowable manure
application rate; (2) restrictions on
timing of land application if determined
to be necessary, including restrictions
with regard to frozen, saturated or snow
covered ground; (3) requirements for the
facility to be permitted until manure
storage facilities are properly closed and
therefore the facility has no potential to
discharge; (4) conditions for facilities in
certain types of topographical regions to
prevent discharges to ground water with
a direct hydrological connection to
surface water; and (5) under one co-
proposed option, requirements that the
CAFO owner or operator obtain a signed
certification from off-site recipients of
more than twelve tons annually, that
manure will be land applied according
to proper agricultural practices (co-
proposed with omitting such a
requirement). Comments are also
requested on whether EPA should
include erosion controls in the NPDES
permit, and whether EPA should
establish an additional .design standard
that would address chronic rainfall.
Table 7-4 summarizes the proposed
revisions that address minimum permit
conditions, as well as issues for which
comment are being sought.
TABLE 7-4.—PROPOSED REVISIONS FOR PERMIT REQUIREMENTS
Proposed revision
Effluent Limitations
Discharge to around water with a direct hydrological connection to surface water
Obtain certification from off-site recipients of manure of appropriate land application
Solicitation of comment on defining chronic rainfall
Section
E.1
E.2
E.3
E.4
E.5
E.5.a
E.S.b
E.S.c
E.S.d
E.S.e
E.5.f
E.S.g
Finally, EPA is proposing to amend
certain aspects of the general and
individual permit process to improve
public access and public involvement in
permitting CAFOs. While the NPDES
regulations already provide a process for,
public involvement in issuing
individual NPDES permits, today EPA is
proposing to require the permit
authority to issue quarterly public
notices of all Notices of Intent (NOIs)
received for coverage under general
NPDES permits for CAFOs, as well as of
notices from CAFOs that their Permit
Nutrient Plans have been developed or
amended. Today's proposal discusses
public availability of NOIs, Permit
Nutrient Plans and PNP notifications.
EPA is proposing several new criteria
for which CAFOs may be ineligible for
general permits, and would require the
permit authority to conduct a public
process for determining, in light of those
criteria, when individual permits would'
be required.
Owners or operators of all facilities
that are defined as CAFOs in today's
proposed regulation would be required
to apply for an NPDES permit. However,
EPA also is proposing that they may,
instead, seek to obtain from the permit
authority a determination of "no
potential to discharge" in lieu of
submitting a permit application. (EPA
notes that, because of the stringency of
demonstrating that a facility has no
potential to discharge, EPA expects that
few facilities will receive such
determinations.) Finally, EPA is
proposing to amend the CAFO
individual permit application
requirements and corresponding Form
2B. See Table 7-5.
TABLE 7-5.—PROPOSED REVISIONS TO PERMIT PROCESS
Proposed revision
Section
General Permit and NOI provisions ...
Individual permits
Requests not to have a permit issued by demonstrating "no potential to discharge"
Amendments to NPDES Permit Application For CAFOs Form 2B
F.1
F.2
F.3
F.4
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B. What Size AFOs Would be
Considered CAFOs?
EPA is proposing two alternative
structures for establishing which AFOs
would be regulated as CAFOs. Each
proposal reflects the Agency's efforts to
balance the goals of ease of
implementation and effectively
addressing the sources of water quality
impairments. The two-tier structure is
designed to give both regulators and
animal feeding facility operators a clear,
straightforward means of determining
whether or not an NPDES permit is
required for a facility. On the other
hand, the three-tier structure, while less
straightforward in determining which
facilities are required to have NPDES
permits, may allow the permit authority
to focus its permitting resources on
facilities which are more likely to be
significant sources of water quality
impairments. The Agency believes both
the two-tier and three-tier approaches
are reasonable and is requesting
comment on how best to strike a balance
between simplicity and flexibility while
achieving the goals of the Clean Water
Act. EPA may decide to choose either or
both alternatives in the final rule, and
requests comments on both. EPA is also
requesting comment on a variation of
the two-tier structure and a variation of
the three-tier structure and, after
considering public comment, may
decide to pursue either or both of these
variations for the final rule.
EPA is not proposing to define animal
types on the basis of age, size or species
in order to avoid complicating the
implementation of this proposal.
Throughout today's preamble, each of
the subcategories, under today's
proposed effluent guidelines, is
described as follows:
• "Cattle, excluding mature dairy or
veal" (referred in today's preamble as
the beef sector) includes any age animal
confined at a beef operation, including
heifers when confined apart from the
dairy. This subcategory also includes
stand-alone heifer operations, also
referred to as heifer operations.
• "Mature dairy cattle" (referred in
today's preamble as the dairy sector)
indicates that only the mature cows,
whether milking or dry, are counted to
identify whether the dairy is a CAFO.
• "Veal" is distinguished by the type
of operation. Veal cattle are confined
and manure is managed differently than
beef cattle. EPA is not proposing to
define veal by size or age. Note that the
current regulation includes veal under
the beef subcategory, but hi today's
proposal a new veal subcategory would
be established.
• "Swine weighing over 25 kilograms
or 55 pounds" also indicates that only
• mature swine are counted to determine
whether the facility is a CAFO. Once
defined as a CAFQ, all animals in
confinement at the facility would be
subject to the proposed requirements.
• "Immature Swine weighing less
than 25 kilograms or 25 pounds"
indicates that immature swine are
counted only when confined at a stand-
alone nursery. Today's preamble uses
the terms "swine sector" to indicate
both mature and immature swine, but
permit provisions are separately applied
to them.
• "Chicken" and "Turkeys" are listed
as separate subcategories and are
counted separately in order to
determine whether the facility is a
CAFO. However, they are subject to the
same effluent limitations, and are
collectively referred to as the "poultry
sector."
• "Ducks," "Horses," and "Sheep or
Lambs" are separate subcategories
under the existing NPDES and effluent
limitation regulations. Part 412 effluent
limitations are not being revised in
today's proposal; however, some of the
proposed revisions to the NPDES
program will affect these subcategories.
1. Historical Record
In 1973, when EPA proposed
regulations for CAFOs, the Agency
determined the thresholds above which
AFOs would be subject to NPDES
permitting requirements "on the basis of
information and statistics received,
pollution potential, and administrative
manageability." 38 FR 10961,10961
(May 3,1973). hi 1975, the Agency, after
litigation, again proposed regulations for
CAFOs which established a threshold
number of animals above which an AFO
would be determined to be a CAFO. 40
FR 54182 (Nov. 20,1975). The Agency
noted that it might be possible to
establish a precise regulatory formula to
determine which AFOs are CAFO point
sources based on factors such as the
proximity of the operation to surface
waters, the numbers and types of
animals confined, the slope of the land,
and other factors relative to the
likelihood or frequency of discharge of
pollutants into navigable waters. 40 FR
at 54183.
The Agency decided, however, that
even if such a formula could be • •
constructed, it would be so complex
that both permitting authorities and
feedlot operators would find it difficult
to apply. Then, as now, EPA concluded
that the clearest and most efficient
• means of regulating concentrated animal
feeding operations was to establish a
definitive threshold number of confined
animals above which a facility is
defined as a CAFO, below which a
permitting authority could designate a
facility as a CAFO, after consideration of
the various relevant factors. The
threshold numbers initially established
by the Agency were based generally on
a statement by Senator Muskie when the
Clean Water Act was enacted. Senator
Muskie, floor manager of the legislation,
stated that: "Guidance with respect to
the identification of 'point sources' and
'nonpoint sources,' especially with
respect to agriculture, will be provided
in regulations and guidelines of the
Administrator." 2 Legislative History of
the Water Pollution Control Act
Amendments of 1972 at 1299, 93d Cong,
1st Sess. (January 1973). Senator Muskie
then identified the existing policy with
respect to identification of agricultural
point sources was generally that "runoff
from confined livestock and poultry
operations are not considered a 'point
source' unless the following
concentrations of animals are exceeded:
1000 beef cattle; 700 dairy cows;
290,000 broiler chickens; 180,000 laying
hens; 55,000 turkeys; 4,500 slaughter
hogs; 35,000 feeder pigs; 12,000 sheep
or lambs; 145,000 ducks." Id. In the
final rule, the Agency and commenters
agreed that while Senator Muskie's
statement provided useful general
guidance, particularly in support of the
idea of defining CAFOs based on
specified numbers of animals present, it
was not a definitive statement of the
criteria for defining a CAFO. 41 FR
11458 (Mar. 18, 1976). The Agency,
thus, looked to data with respect to both
the amount of manure generated by
facilities above the threshold and the
number of facilities captured by the
regulation.
EPA has again looked to those factors
and, with 25 years of regulatory
experience, focused particularly on the
amount of manure captured by the
threshold, ease of implementation for
both regulators and the regulated
community, as well as on matters of
administrative convenience and
manageability of the permitting
program. Based on these considerations,
EPA is proposing two alternative
structures. EPA notes that the NPDES
threshold is generally synchronized
with the effluent guidelines
applicability threshold, and information
on the cost per pound of pollutants
removed, and affordability of the
various options is available in Section
X.
2. Two-Tier Structure
The first alternative that EPA is
proposing is a two-tier structure that
establishes which operations are
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2997
-defined as CAFOs based on size alone.
See proposed § 122.23(a)(3). In this
alternative, EPA is proposing that.the
threshold for defining operations as
CAFOs be equivalent to 500 animal
units (AU). All operations .with 500 or
more animal units would be defined as
CAFOs (§ 122.23(a)(3)(i)). Operations
with fewer than 500 animal units would
be CAFOs only if designated by EPA or
the State permit authority
(§ 122.23(a)(3)(ii)}. Table 7-6 describes
the number of animals that are
equivalent to the proposed 500 AU
threshold, as well as three other two-tier
thresholds that are discussed in this
section.
The proposed two-tier structure
would eliminate the 300 AU to 1,000
AU tier of the existing regulation, under
which facilities were either defined as a
CAFO if they met certain conditions or
were subject to designation on a case-
by-case basis by the permit authority
according to the criteria in the
regulations. EPA is proposing to
eliminate this middle category primarily
because it has resulted in general
confusion about which facilities should
be covered by an NPDES permit, which,
in turn, has led to few facilities being
permitted under the existing regulation.
The two-tier structure offers simplicity
and clarity for the regulated community
and enforcement authorities for
knowing when a facility is a CAFO and
when it is not, thereby improving both
compliance and enforcement.
TABLE 7-6.—NUMBER OF ANIMALS COVERED BY ALTERNATIVE TWO-TIER APPROACHES
Animal type
Wpol
Sheep or Lambs • • •
Number of animals equivalent to:
300 AU
300
300
200
750
3,000
30,000
16,500
1,500
150
3,000
500 AU
500
500
350
1,250
5,000
50,000
27,500
2,500
250
5,000
750 AU
750
750
525
1,875
7,500
75,000
41,250
3,750
375
7,500
1.000AU
1,000
1,000
700
2,500
10,000
100,000
55,000
5,000
500
10,000
Operations with fewer animals than
the number listed for the selected
threshold in Table 7-6 would only
become CAFOs through case-by-case
designation.
In, order to determine the appropriate
threshold for this two-tier approach,
EPA analyzed information on numbers
of operations, including percent of
manure generated, potential to reduce
nutrient loadings, and administrative
burden. EPA cpnsidered current
industry trends and production
practices, including the trend toward
fewer numbers of AFOs, and toward
larger facilities that tend to be more
specialized and industrialized in
practice, as compared to more
traditional agricultural operations. EPA
also considered other thresholds,
including 300 AU, 750 AU, or retaining
the existing 1,0.00 AU threshold. After
considering each of these alternatives,
EPA is proposing 500 AU as the
appropriate threshold for a two-tier
structure, but is also requesting
comment on a threshold of 750 AU.
EPA is proposing 500 AU as the
appropriate threshold for a two-tier
structure because it regulates larger
operations and exempts more
traditional—and oftentimes more
sustainable—farm production systems
where farm operators grow both
livestock and crops and land apply
manure nutrients. Consistent with the
objectives under the USDA-EPA
Unified National Strategy for Animal
Feeding Operations (March 9,1999), the
proposed regulations cover more of the
largest operations since these pose the
greatest potential risk to water quality
and public health, given the sheer
volume of manure generated at these
operations. Larger operations .that
handle larger herds or flocks often do
not have an adequate land base for
manure disposal through land
application. As a result, large facilities
need to store large volumes of manure
and wastewater, which have the
potential, if not properly handled, to
cause significant water quality impacts.
By comparison, smaller farms manage
fewer animals and tend to concentrate
less manure nutrients at a single farming
location. Smaller farms tend to be less
specialized and are more diversified,
engaging in both animal and crop
production. These farms often have
sufficient cropland and fertilizer needs
to appropriately land apply manure
nutrients generated at a farm's livestock
or poultry business. More information
on the characteristics of larger-scale
animal production practices is provided
in sections IV and VI of this document,
as well as noted in the analysis of
impacts to small businesses (section
EPA is proposing the 500 AU
threshold because.operations of this size
account for the majority of all manure
and manure nutrients produced
annually. The proposed two-tier
structure would cover an estimated
25,540 animal production operations, or
approximately seven percent of all
operations, which account for 64
percent of all AFO manure generated
annually. The USDA-EPA Unified
National Strategy had a goal of
regulating roughly five percent of all
operations.
EPA is specifically seeking comment
on an alternative threshold of 750 AU,
which would encompass five percent of
AFOs. There are an estimated 19,100
operations with 750 AU or more (13,000
of which have more than 1,000 AU), and
account for 58 percent of all manure and
manure nutrients produced annually by
AFOs. Regulating five percent of AFOs
may be viewed by some as being
consistent with the USDA-EPA Unified
National Strategy.
A 750 AU threshold has the benefits
cited for the 500 AU threshold. The two-
tier structure is simple and clear, and it
would focus regulation on even larger
operations, thereby relieving smaller
operations from the burden of being
automatically regulated, and moderating
the administrative burden to permit
authorities. Permit authorities could use
state programs to focus on operations
below 750 AU, and could use the
designation process as needed.
hi some sectors, a 750 AU threshold
may not be sufficiently protective of the
environment. For example, in the
Pacific Northwest, dairies tend to be
smaller, but also tend to be a significant
concern. In the mid-Atlantic, where
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001/Proposed Rules
poultry operations have been shown to
be a source of environmental
degradation, a 750 AU threshold would
exempt many broiler operations from
regulatory requirements. EPA is
concerned that a 750 AU threshold
would disable permit authorities from
effectively addressing regional concerns.
EPA also considered adopting the
1,000 AU threshold, which would have
regulated three percent of all operations
and 49 percent of all manure generated
annually. A threshold of 300 AU was
also considered, which would have
addressed an additional 8 percent of all
manure generated annually, but would
have brought into regulation 50 percent
more operations than the 500 AU
threshold (thus regulating a total of 10
percent of all AFOs which account for
72 percent of AFO manure).
Raising the NPDES threshold to 500
AU, 750 AU or 1,000 AU raises a policy
question for facilities below the selected
threshold but with more than 300 AU.
Facilities with 300 to 1,000 AU are
currently subject to NPDES regulation
under some conditions, though in
practice few operations in this size
range have actually been permitted to
date. To rely entirely on designation for
these operations could be viewed by
some as deregulatory, because the
designation process is a time consuming
and resource intensive process that
makes it difficult to redress violations.
It also results in the inability for permit
authorities to take enforcement actions
against initial discharges, (unless they
are^from an independent point source at
the'facility); instead such discharges
could only result in requiring a permit.
Unless the designation process can be
streamlined in some way to enable
permit authorities to more efficiently
address those who are significant
contributors of pollutants, raising the
threshold too high may also not be
sufficiently protective of the
environment. Please see Section VII.C.3
and VII.C.4 for a discussion of the
designation process.
More information on how data for
these alternatives were estimated is
provided in section VI of this preamble.
EPA is soliciting comment on the two-
tier structure, and what the appropriate
threshold should be. In addition, EPA is
soliciting comment on other measures
this rule, when final, might include to
ensure that facilities below the
regulatory threshold meet
environmental requirements, such as by
streamlining the designation process or
some other means.
3. Three-Tier Structure
The second alternative that EPA is
proposing is a three-tier structure that
retains the existing tiers but amends the
conditions under which AFOs with 300
AU to 1,000 AU, or "middle tier"
facilities, would be defined as CAFOs.
Further, EPA would require all middle
tier AFOs to either apply for an NPDES
permit or to certify to the permit
authority that they do not meet any of
the conditions which would require
them to obtain a permit.
EPA is proposing this alternative
because it presents a "risk based"
approach to determining which
operations pose the greatest concern and
have the greatest potential to discharge.
The particular conditions being
proposed would have the effect of
ensuring that manure at all facilities
with 300 AU or more is properly
managed, and thus may be more
environmentally protective than the
two-tier structure. Further, even though
this alternative would impose some
degree of burden on all AFOs with 300
AU or more, it would provide a way for
facilities to avoid being permitted, and
could reduce the administrative burden
associated with permitting.
The three-tier alternative would affect
ah1 26,665 facilities between 300 AU and
1,000 AU in addition to the 12,660
facilities with greater than 1,000 AU,
and thus would affect 10 percent of all
AFOs while addressing 72 percent of all
AFO manure. However, because owners
or operators of middle tier facilities
would be able to certify that their
operations are not CAFOs, EPA
estimates that between 4,000 to 19,000
mid-size facilities would need to apply
for and obtain a permit.
Of the approximately 26,000 AFOs
with 300 AU to 1,000 AU, EPA
estimates that owners or operations of
approximately 7,000 facilities would
have to, at a minimum, implement a
Permit Nutrient Plan (as discussed
further below) and would be able to
certify to the permit authority that they
are not a CAFO based on existing
practices. Operators of some 19,000
facilities of these middle tier facilities
would be required to adopt certain
practices in addition to implementing a
PNP, in order to be able to certify they
are not a CAFO to avoid being
permitted.
See the EPA NPDES CAFO
Rulemaking Support Document,
included in the Record, for detailed
descriptions of the number of facilities
affected by this and the other alternative
scenarios considered.
EPA is also proposing the three-tier
structure because it provides flexibility
for State programs. A State with an
effective non-NPDES program could
succeed in helping many of their middle
tier operations avoid permits by
ensuring they do not meet any of the
conditions that would define them as
CAFOs. This important factor would
enable States to tailor their programs
while minimizing the changes State
programs might need to make to
accommodate today's proposed
rulemaking.
The three-tier structure would affect
the facilities shown in Table 7-7.
TABLE 7-7.—NUMBER OF ANIMALS IN THE THREE-TIER APPROACH
[By sector]
Animal Type
Cattle, Excluding Mature Dairy and Veal
Veal
Mature Dairy Cattle
Swine, weighing over 25 kilograms or 55 pounds
'Immature Swine, weighing less than 25 kilograms or 55 pounds
"Chickens
Turkeys
Ducks
Horses :
>1000 AU
equivalent
(Number of
animals)
1 000
1 nnn
700
2 500
10 000
1 00 000
cc nnn
c nnn
500
300-1 OOOAU
equivalent
(Number of
animals)
900—1 nnn
onn_ 7nn
7Rn— ? ^nn
3 000—1 0 000
*3n nnn_inn nnn
150-finn
<300 AU
equivalent
(Number of
animals)
.-.OAfi
<3QO
^q nnn
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2999
TABLE 7-7.—NUMBER OF ANIMALS IN THE THREE-TIER APPROACH—Continued
[By sector]
Animal Type
Sheep or Lambs •
>1000AU
equivalent
(Number of
animals)
10,000
300-1 OOOAU
equivalent
(Number of
animals)
3,000-10,000
<300 AU
equivalent
(Number of
animals)
<3,000
•Immature swine, heifers and dry chicken operations ar.e not included in the existing regulation but are included in today's proposed
rulemaking.
Revised Conditions. EPA examined
the conditions under the existing
regulation and determined that the
conditions needed to be modified in
order to improve its efficacy. Under the
existing regulation, an AFO with 300
AU to 1,000 AU is not defined as a
CAFO unless it meets one of the two
criteria governing the method of
discharge: (1) Pollutants are discharged
through a man-made ditch, flushing
system, or other similar man-made
device; or (2) pollutants are discharged
directly into waters of the United States
that originate outside of the facility and
pass over, across, or through the facility
or otherwise come into direct contact
with the confined animals. Under the.
two-tier structure, these conditions
would be eliminated because a facility
would simply be defined as a CAFO if
it .had more than 500 AU. Under the
three-tier structure, EPA is proposing to
eliminate the existing conditions and
add several others designed to identify
' facilities which pose the greatest risk to
water quality.
The three-tier proposal would, for the
middle tier, eliminate both criteria in
the existing regulation because these
conditions have proven to be difficult to
interpret and implement for AFOs in the
300 AU to 1,00.0 AU size category, and
thus have not facilitated compliance or
enforcement, and the scenario does not
meet the goal of today's proposal to
simplify the NPDES regulation for
CAFOs. The two criteria governing
method of discharge, e.g., "man-made
device" and "stream running through
the CAFO," are subject to interpretation,
and thus difficult for AFO operators in
this size range to determine whether or
not the permit authority would consider
them to be a CAFO. EPA does not
believe it is necessary to retain these
criteria because all discharges of
pollutants from facilities of this size
should be considered point source
discharges. By replacing these terms
with a list of conditions, EPA intends to
clarify that all discharges from CAFOs
must be covered by an NPDES permit,
whether or not they are from a
manmade conveyance. EPA notes that
under this proposal, the Agency would
not eliminate the two conditions as
criteria for designation of AFOs with
less than 300 AU as CAFOs. See the
discussion of designation in Section
VII.C.3.
The revised conditions for the middle
tier would require the owner or operator
to apply for an NPDES permit if the
operation meets any of the following
conditions and is therefore a CAFO: (1)
There is direct contact of animals with
waters of the U.S. at the. facility; (2)
there is insufficient storage and
cpntainment.at the production area to
prevent discharges from reaching waters
of the U.S.; (3) there is evidence of a
discharge from the production area in
the last five years; (4) the production
area is located within 100 feet of waters
of the U.S.; (5) the operator does not
have, or is not implementing, a Permit
Nutrient Plan that meets EPA's
minimum requirements; or (6) more
than twelve tons of manure is
transported off-site to a single recipient
annually, unless the recipient has
complied with the requirements for off-
site shipment of manure.
The EPA NPDES CAFO Rulemaking
Support Document, dated September 26,
2000 (available in the rulemaking
Record); describes the assumptions Used
to estimate the number of facilities that
would be affected by each condition,
which EPA developed in consultation
with state regulatory agency personnel,
representatives of livestock trade
associations, and extension specialists.
Each of these proposed conditions is
described further below.
Direct contact of animals with waters
of the U.S. The condition for "direct
contact of animals with waters of the
U.S." covers situations such as dairy or
beef cattle walking or standing in a
stream or other such water that runs
through the production area. This
condition ensures that facilities which
allow such direct Contact have NPDES
permits to minimize the water quality
problems that such contact can cause.
Insufficient Storage. The condition for
"insufficient storage and containment at
the production area to prevent discharge
to waters of the U.S." is intended to
address discharges through any means,
including sheet runoff from the
production area, whereby rain or other
waters might come into contact with
manure and other raw materials or
wastes and then run off to waters of the
U.S. or leach to ground water that has
a direct hydrologic connection to waters.
of the U.S. This is to ensure that all mid-
sized facilities prevent discharges from
inadequate storage and containment of
manure, process wastewater, storm
water, and other water coming in
contact with manure.
; Sufficient storage would be defined as
facilities that have been designed and
constructed to standards equivalent to
today's proposed effluent guidelines.
Thus, beef and dairy operations would
be designed and constructed to prevent
discharge in a 25-year, 24-hour storm
event, while swine and poultry would
be required to meet a zero discharge
standard. See Section VIIIC.6.
Past or Current Discharge. Operations
that meet the condition for "evidence of
discharge from the production areas
within the past five years" would be
considered CAFOs under this proposal.
A discharge would include all
discharges from the production area
including, for example, a discharge from
a facility designed to contain a 25-year,
24-hour storm. Evidence of discharge
would include: citation by the permit
authority; discharge verified by the
permit authority whether cited.or not; or
other verifiable evidence that the permit
authority determines to be adequate to
indicate a discharge has occurred.
Under this approach, there would be
no allowance in the certification process
for facilities in the beef and dairy
sectors designed to contain runoff from
a 25-year, 24-hour storm that had a
discharge anyway during an extreme
storm event. Thus, in this respect, the
requirements for certification would be
more stringent than those that would
apply to a permitted facility. EPA is
thus proposing that a facility that
chooses not to be covered by an NPDES
permit would not get the benefits of
NPDES coverage such as the 25-year, 24-
hour storm standard for beef and dairy
operations, and upset and bypass
defense. Alternatively, EPA is soliciting
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comment on the definition of a "past or
current discharge," including whether
to define it as a discharge from a facility
that has not been designed and
constructed in accordance with today's
proposed effluent guidelines. This
would make the certification
requirements consistent with those for
permitted facilities.
Proximity to Waters of the U.S.
Operations with production areas that
are located within 100 feet of waters of
the U.S. are of particular concern to
EPA, since their proximity increases the
chance of discharge to waters and is a
compelling factor that would indicate
the potential to discharge. Research has
shown that the amount of pollutants in
runoff over land can he mitigated by
buffers and setbacks. (See
Environmental Impact Assessment;
Development of Pollutant Loading
Reductions from the Implementation of
Nutrient Management and Best
Management Practices; both available in
the rulemaking Record.) Any operation
located at a distance less than the
minimum setback poses a particular risk
that contaminants will discharge to
receiving waters. EPA estimates that
approximately 4,000 operations between
300 AU and 1,000 AU in size have
production areas that are within 100 feet
of waters of the U.S.
Permit Nutrient Plan for Land
Application of Manure and Wastewater.
For facilities that land apply manure,
another condition indicative of risk to
water impairment is whether or not the
facility has developed and is
implementing a Permit Nutrient Plan for
manure and/or wastewater that is
applied to land that is owned or
controlled by the AFO operator.
Contamination of water from excessive
application of manure and wastewater
to fields and cropland presents a
substantial risk to the environment and
public health because nutrients from
agriculture are one of the leading
sources of water contamination in the
United States. While CAFOs are not the
only source of contamination, they are
a significant source, and CAFO
operators should apply manure properly
to minimize environmental impacts.
Thus, EPA would require any facility
with 300 AU to 1,000 AU that does.not
have a PNP that conforms to today's
proposed effluent guidelines for land
application to apply for an NPDES
permit. (As described in Section VE.E.1,
the PNP is the effluent guideline subset
of elements in a GNMP. Section VIII.C.6
of today's proposal describes the
effluent guideline requirements in a
PNP.)
Certification for Off-site Transfer of
CAFO-generated Manure. The final
condition for avoiding a permit
concerns the transfer of CAFO-generated
manure and wastewater to off-site
recipients. EPA is co-proposing two
ways to address manure transferred off-
site, which are discussed hi detail in
Section VII.D.2, as well as in VII.e.5.e.
In this condition, a facility would be
considered a CAFO if more than 12 tons
of manure is transported off-site to a
single recipient annually, unless the
AFO owner or operator is complying
with the requirements for off-site
transfer of manure, or is complying with
the requirements of a State program that
are equivalent to the requirements of 40
CFR part 412.
Under one co-proposed option, the
AFO owner or operator would be
required to obtain certifications from
recipients that the manure will be
properly managed; to maintain records
of the recipients and the quantities
transferred; and to provide information
to the recipient on proper manure
management and test results on nutrient
content of the manure. Under the
alternative option, CAFOs would not be
required to obtain certifications, but
would still maintain the records of
transfers and provide the information to
the recipients.
Under the first option, the CAFO
owner or operator would obtain a
certification from recipients (other than
waste haulers that do not land apply the
waste) that the manure: (1) Will be land
applied in accordance with proper
agricultural practices as defined in
today's proposal; (2) will be applied in
accordance with an NPDES permit; or
(3) will be used for alternative uses,
such as for pelletizing or distribution to
other markets. If transferring manure
and wastewater to a waste hauler, the
GAFO owner or operator would be
required to obtain the name and
location of the recipients of the waste,
if known, and provide the hauler with
an analysis of the content of the manure
and a brochure describing
responsibilities for appropriate manure
management, which would be provided,
in turn, to the recipient. These
provisions are discussed in more detail
in Sections VII.D.4 and VILE.4.
Excess Manure Alternative
Considered. As an alternative to the two
conditions addressing land application
of CAFO-generated.manure, EPA also
considered a condition that would
simply require the CAFO operator to
determine whether it generates more
manure than the land under his or her
control could accommodate at allowable
manure application rates, and if so, it
would be a CAFO, required to land
apply according to a PNP. Further, this
condition would create a voluntary
option for off-site transfer of CAFO-
generated manure whereby, if the
manure was transferred to someone
certifying they had a certified CNMP
and were implementing it, the facility
would not be a CAFO on the basis of
haying excess manure.
EPA considered this criterion to
identify which CAFOs were likely to
pose a risk of discharge and impacts to
human health and the environment
based on generation of excess manure
(e.g., more manure than can be properly
applied to land under his or her
operational control). Requiring such
CAFOs to apply for an NPDES permit
would allow EPA to require these
operations to maintain records
documenting the fate of the manure
(e.g., whether it was land applied.on-
site or transferred to a third party). EPA
is interested in monitoring the fate of
the large quantities of manure generated
by CAFOs, and in educating recipients
regarding proper agricultural practices.
.CAFO operators able to certify there is
sufficient cropland under their
operational control to accommodate the
proper application of manure generated
at their facility would not be defined as
CAFOs and thus would not need to
apply for an NPDES permit on that
basis.
To identify facilities that generate
excess manure, EPA considered a
screening tool originally developed by
USDA, known as Manure Master. The
tool allows AFO operators to compare
the nutrient content in the'animal
manure produced by an AFO with the
quantity of nutrients used and removed
from the field on which that manure is
applied. This tool would help assess the
relative potential for the nutrients
contained in the animal manure to meet
or exceed the crop uptake and
utilization requirements for those crops
that receive applications of manure. The
screening tool calculates a balance
between the nitrogen, phosphorus, and
potassium content in the manure and
the quantity of these nutrients used by
particular crops. This balance can be
calculated based upon recommended
fertilizer application rates, when
known, or upon estimated plant
nutrient content, when recommended
fertilizer application rates are not
known. For nitrogen, the'balance is
calculated taking into account expected
losses from leaching, denitrification,
and volatilization.
The manure screening tool would be
available as either an Internet-based
program or as a computer software
program that allows for direct input of
data and generation of reports. AFO
operators would enter the average
number of confined animals by animal
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001 /Proposed Rules
3001
type, the number of acres for each crop,
and the expected yield for each crop for
which the operator expects to apply
manure. The operator would also
specify whether the manure is
incorporated into the soil or surface
applied. The software also allows, but
does not require, entry of soil test or
other crop nutrient recommendations.
The screening tool produces a report
, that includes the balance (i.e., pounds
needed or pounds excess, per acre) for
nitrogen, phosphorus, and potassium for
an AFO operator's fields. The balance
will advise the operator whether the
quantity of nutrients in his or her
animal manure exceeds the quantity
removed in harvested plants or the
quantity-of nutrients recommended.
There are many assumptions in this
screening tool that make it too general
to use for detailed nutrient management
planning, although it wouldbe useful as
a rough means of determining whether
a facility is generating manure in excess
of crop needs. The factors used to
calculate manure nutrient content are
developed from estimates that account
for nutrient losses due to collection,
storage, treatment, and handling. When
manure is not incorporated, an
additional nitrogen loss is included for
volatilization. When the nutrients
exceed nutrient utilization, there is
increased potential for nutrients to leach
or runoff from fields and become
pollutants of ground or surface water.
This software is intended to be used as
a decision support screening tool to
allow AFO operators to make a quick
; evaluation as to whether the quantity of
nutrients applied to the land on which
manure is spread exceeds the quantity
of nutrients used by crops. EPA believes
it could be a valuable tool to determine,
at a screening level, whether available
nutrients exceed crop needs and, thus,
, whether a facility has a greater
likelihood for generating the runoff of
nutrients that could impact water
quality. EPA is not proposing this
1 option as there are concerns that simply
having enough land may not provide
assurance that the manure would be
applied in ways that avoided impairing
water quality. However, EPA is
requesting comment below on an
alternative three-tier approach that -
would include such a screening tool as
one of the criteria for certifying that an
AFO in the 300 to 1,000 AU size
category is not a CAFO.
Certifying That a Middle Tier AFO is
not a CAFO. Under the three-tier
structure, EPA is proposing to allow
AFOs with between 300 AU and 1,000
AU to certify to the permit authority
that they do not meet any of the risk-
based conditions and thus are not
CAFOs. The certification would be a
check-off form that would also request
some basic information about the
facility, including name and address of
the owner and operators; facility name
and address and contact person;
physical location and longitude and
latitude information for the production
area; type and number of animals at the
AFO; and signature of owner, operator
or authorized representative. The draft
sample certification form is included
here for public comment.
Form for Certifying Out of the Concentrated
Animal Feeding Operation Provisions of the
National Pollutant Discharge-Elimination
System
This checklist is to assist you in
determining whether your animal feeding
operation (AFO) is, or is not, a concentrated
animal feeding operation (CAFO) subject to
certain regulatory provisions. For
clarification, please See the attached fact
sheet. '
Section 1. First Determine Whether or not
Your Facility Is an AFO
A facility that houses animals is an animal
feeding operation if:
• Animals (other than aquatic animals)
have been, are, or will be stabled or confined
and fed or maintained for a total of 45 days
or more in any 12-month period.
• Animals are not considered to be stabled
or confined when they are in areas such as
pastures or rangeland that sustain crops or
forage growth during the entire time that
animals are present.
Yes, my facility is ah AFO. PROCEED TO
SECTION 2.
No, my facility is not an AFO. STOP. YOU
DO NOT NEED TO SUBMIT THIS FORM
Section 2. Determine the Size Range of Your
AFO
If your facility is an AFO, and the number
of animals is in the size range for any animal
type listed below, then you may potentially
be a concentrated animal feeding operation.
200-700 mature dairy cattle (whether milked
or dry)
300-1000 head of cattle other than mature
dairy cattle
750-2,500 swine each weighing over 25
kilograms (55 pounds)
3,000-10,000 swine each weighing under 25
kilograms (55 pounds)
30,000-100,000 chickens
16,500-55,000 turkeys
150-500 horses
3,000-10,000 sheep or lambs
1,500-5,000 ducks
My AFO is within this size range.
PROCEED TO SECTION 3.
My AFO has fewer than the lower
threshold number for any animal type so I am
not a CAFO under this description. STOP.
My AFO has more than the upper
threshold number of animals for any animal
type. STOP. PLEASE CONTACT YOUR
PERMIT AUTHORITY FOR INFORMATION
ON HOW TO APPLY FOR AN NPDES
PERMIT.
Section 3. Minimum Requirements
Check all boxes mat-apply to your
operation. If all of the following boxes are
checked, PROCEED TO SECTION 4.
My production area is not located within
100 feet of waters of the U.S.
There is no direct contact of animals with
waters of the U.S. in the production area.
I am currently maintaining properly
engineered manure and wastewater storage
and containment structures designed to
prevent discharge in either a 25-year, 24-hour
storm (for beef and dairy facilities) or all
circumstances (for all other facilities), in
accordance with the effluent guidelines (40
CFR Part-412).
There are no discharges from the
production area and there have been no
discharges in the past 5 years.
I have not been notified by my State permit
authority or EPA that my facility needs an
NPDES permit
If any box in this section is not checked,
you may not use this certification and you
must a^ply for an NPDES permit. STOP.
PLEASE CONTACT YOUR PERMIT
AUTHORITY FOR MORE INFORMATION.
Section 4. Land Application
A. If all of the boxes in Section 3 are
checked, you may be able to certify that you
are not a CAFO on the basis of ensuring
proper agricultural practices for land
application of CAFO manure:
I either do not land apply manure or, if
land applying manure, I have, and am
implementing, a certified Permit Nutrient
Plan (PNP). I maintain a copy of my PNP at
my facility, including records of
implementation and monitoring; and
B. Check One:
My State* has a program for excess manure
in which I participate. OR
[Alternative 1:1 do not transfer more than
12 tons of manure to any off-site recipients
unless they have signed a certification form
assuring me that they are either 1) applying
manure according to proper agricultural
practices; 2) obtaining an NPDES permit for
discharges; or 3) transferring manure to other
non-land application uses; and] [For
Alternative 2, this box is not needed]
I maintain records of recipients, receiving
greater than 12 tons of manure annually, and
the quantity and dates transferred, and I
provide recipients an analysis of the content
of the manure as well as information
describing the recipients responsibilities for
appropriate manure management. If I transfer
manure or wastewater to a manure hauler, I
also obtain the name and location of the
recipients of the manure, if known;
If a box is checked in both subsection A
and subsection B above, you may certify that
you are not a CAFO. PROCEED TO SECTION
5.
If a box is not checked in both subsection
A and subsection B above, you may not use
this certification form. STOP. YOU MUST
APPLY FOR AN NPDES PERMIT..
Section 5. Certification
I certify that I own or operate the animal
feeding operation described herein, and have
legal authority to make management
decisions about said operation. I certify that
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001 / Proposed Rules
the information provided is true and correct
to the best of my knowledge.
I understand that in the event of a
discharge to waters of the U.S. from my AFO,
I must report the discharge to the Permit
Authority and apply for a permit I will
report the discharge by phone within 24
hours, submit a written report within 7
calendar days, and make arrangements to
correct the conditions that caused the
discharge.
In the event any of these conditions can no
longer be met, I understand that my facility
is a CAFO and I must immediately apply for
a permit. I also understand that I am liable
for any unpermitted discharges. This
certification must be renewed every 5 years.
I certify under penalty of law that this
document either was prepared by me or was
prepared under my direction or supervision.
Based on my inquiry of the person or persons
who gathered the information, the
information provided is, to the best of my
knowledge and belief, true, accurate and
complete. I am aware that there are penalties
for submitting false information, including
the possibility of fine and imprisonment for
knowing violations.
Facility Name naanaponnpannn
NameofCertifier nnnDnnnnnDDD
Signature noanaDDnnnnnnnna
DateDDaQcnaonD
Check one: D owner D operator
Name & Address of other entity that exercises
substantial operational control of this CAFO:
Address of animal feeding operation:
County:
State:
Latitude/Longitude:
Phone:
Email:
Name of Closest Waters of the U.S.:
Distance to Waters:
Description of closest waters: (e.g. intermit-
tent stream, perennial stream; ground water
aquifer): nnDcnnnQnaDnnnQn
oaDanaoannQDaonnQnanD
Where an operation in the 300-1000
AU size range has certified that it meets
all of the required conditions to be
excluded from the CAFO definition, if at
any future point the operation fails to
meet one or more of these conditions, it
would immediately become defined as a
CAFO. Any discharges from the
operation at that point would be illegal
until the operation obtains a permit. For
example, if an operation has certified
that it meets all of the conditions for
being excluded from the CAFO
definition, but then has an actual
discharge to the waters (which would be
inconsistent with the certification that
there is no "current discharge"), that
discharge would be considered to be an
unpermitted discharge from a CAFO.
Similarly, if an operation at any point
no longer has sufficient storage and
containment to prevent discharges, it
would immediately become a CAFO and
be required to apply for a permit
(regardless of whether it had any actual
discharges).
Constructing the regulations in this
way would do two things. First, it
would make clear that there is no shield
from liability for any operation that
falsely certified that it met the
conditions to be excluded from
regulation. Second, it would make clear
that even in cases where an operation
has certified to all the required
conditions in good faith, there is no
protection from the regulatory and
permitting requirements if at any point
the operation no longer meets those
conditions. Operations would be on
notice that if they had any doubts about
their continued ability to meet the
conditions for exclusion, they should
decline to "certify out" and should
apply for a permit.
Alternative Three-tier Structure:
Simplified Certification. EPA is
requesting comment on a variation of
the three-tier structure being co-
proposed today. Under this alternative,
operations with > 1,000 AU would be
subject to the same requirements as
under both of today's co-proposed
options, and operations between 300
and 1,000 animal units would be
defined as CAFOs, required to obtain an
NPDES permit, unless they can certify
that they do not meet the conditions for
definition as a CAFO. However, the
conditions for making this certification
would be different than those under the
proposed three-tier approach, and the
substantive permit requirements for
operations between 300 and 1,000 AU
that do not certify would also be
different.
Under this approach, operations
between 300 and 1,000 AU, that are not
likely to be significant contributors of
pollutants, could avoid definition as a
CAFO by certifying to a more limited -
range of factors. The check list would
indicate, for example, adequate facility
design to contain manure and runoff in
up to a 25-year, 24-hour storm, use of
appropriate BMPs, and application of
manure at agronomic rates. Under this
variation, the check list would be
designed to minimize both the required
information and the substantive
operational requirements for these
middle tier facilities on the grounds
that, because they are smaller size
operations, they are less likely to be the
type of concentrated, industrial
operations that Congress intended to
include as CAFOs. So, for example, the
check list could allow several
alternatives for appropriate manure
storage, including cost-effective BMPs
such as stacking manure in certain
locations or in certain ways to avoid
discharge, in lieu of expanded structural
storage capacity. Similarly, the
indication that manure is applied at
agronomic rates could be based on a
simple ratio of animals to crop land, or
on the use of a more sophisticated
screening tool, such as the USDA
developed tool described above, but
would not necessarily require
preparation of a full CNMP by a
certified planner. The check list might
also include an assurance by the
operator that recipients of off-site
manure are provided nutrient test
results and information on appropriate
manure management.
AFOs in this size category that are riot
able to certify, according to the check
list criteria, that they are not likely to be
significant contributors of pollutants to
waters of the US would be defined as
CAFOs and thus required to obtain an
NPDES permit. However, the conditions
in the permit would not necessarily be
the same as those in permits for
operations with > 1,000 AU. In
particular, the effluent guidelines
described in today's proposal would not
be applicable to these facilities. Rather,
CAFOs in this size category would be
required to operate in accordance with
BAT, as determined by the best
professional judgement (BPJ) of the
permit writer. This is the same as .the
existing requirement for CAFOs in this
size category. Or, EPA might promulgate
an alternate set of national effluent
guidelines for CAFOs in this
subcategory. Such effluent guidelines
might include zero discharge from the
production area in up to a 25-year, 24-
hour storm, implementation of a PNP,
appropriate BMPs, and appropriate
management of manure shipped off-site.
Under this approach, all 26,665
operations between 300 and 1,000 AU
would be affected by the rule, just as
under the three-tier approach being
proposed today. However, EPA expects
that a larger number of facilities would
be able to avoid definition as a CAFO
and the requirement to obtain a permit
than under today's proposed approach.
EPA has not estimated the number of
operations that would be defined as
CAFOs under this alternative three-tier
approach, but expects that it would be
more than 16,420 but fewer than 31,930
(of which some 13,000 would have over
1,000 AU). For those facilities that did
receive a permit, compliance would
generally be less expensive. This
approach was presented to small entity
representatives (SERs) during the
SBREFA outreach conducted for this
rule, and discussed in detail by the
Small Business Advocacy Review Panel
that conducted the outreach. While
some concerns were expressed, the
approach was generally received
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3003
favorably'by both the SERs and the
Panel. See the Panel Report (2000) for a.
complete discussion of the Panel's
consideration of this option.
, EPA requests comment on this
alternative three tier approach. In
particular, EPA requests comment on
which items should be included in the
certification check list, and whether
substantive permit requirements for
CAFOs in this size category should be
left completely up to the BPJ of the
permit authority, or based on an
alternate set of effluent guidelines, as
discussed above. After evaluating public
comments, EPA may decide to further
explore this option. At that time, EPA
would develop and make available for
. public comment as appropriate a more
detailed description of the specific
requirements of such an approach, as
well as a full analysis of its costs,
benefits, and economic impacts. In
. particular, EPA would add an analysis
to the public record of why it would be
appropriate to promulgate different
effluent guideline requirements, or no
effluent guideline requirements, for
CAFOs that have between 300 and 1,000
AU as compared to the effluent
guidelines for operations with greater
than 1,000 AU. This would include an
evaluation of whether the available
! technologies and economic impacts are
. different for the smaller versus the
larger CAFOs.
4. Comparative Analysis
EPA is proposing both the two- and
three-tier structures for public comment
as they both offer desirable qualities. On
the one hand, the two-tier structure is
' simple and clear, focuses on the larger
operations, and provides regulatory
relief to smaller businesses. However, it
requires permits of all facilities meeting
the size threshold. On the other hand,
the three-tier structure offers flexibility
to States for addressing environmental
impacts of AFOs through non-NPDES
programs or non-regulatory programs,
while focusing the regulation on
facilities demonstrating certain risk
characteristics. It imposes, however,
some degree of burden to all facilities
more than 300 AU.
The costs of each of the six
alternatives considered by EPA are
discussed in Section X of today's
proposal, and benefits are discussed in
Section XI. Key findings from EPA's
analysis are summarized in Table 7-8
for quick reference. See Sections X and
XI for full discussions and explanations.
EPA solicits comment on both of
today's alternative proposed structures,
as well as on the two alternatives
discussed above.
EPA is also soliciting comment on
whether or not to adopt both the two-
tier and the three-tier structures, and to
provide a mechanism to allow States to
select which of the two alternative .
proposed structures to adopt in their
State NPDES program. Under this
option, a State could adopt the structure
that best fits with the administrative
structure of their program, and that best
serves the character of the industries
located in their State and the associated
environmental problems. This option is
viable only if the Agency is able to
determine that the two structures
provide substantially similar
environmental benefits by regulating
equivalent numbers of facilities and
amounts of manure. Otherwise, States
would be in a position to choose a less
stringent regulation, contrary to the
requirements of the Clean Water Act.
EPA's preliminary assessment is that
there appear to be significant differences
in the scope of the structures, such that
the two-tier structure could be
considered less stringent than the three-
tier structure, depending upon which
structures, criteria and thresholds are
selected in the final proposal. As table
7—8 indicates, for example, the co-
proposed two-tier structure with a 500
AU threshold would regulated 25,540
operations, whereas the co-proposed
three-tier structure would regulate up to
39,320 operations. A two-tier structure
with 750 AU would regulate 19,100
operations, whereas the alternative, less
stringent, three-tier structure would
regulate as few as 16,000 and as many
as 32,000. The range of manure covered
under these various alternatives ranges
from as little as 49% to as much as 72%
of all AFO manure. Further, how each
animal sector is affected varies with
each alternative, with some alternatives
being significantly less protective in
certain sectors than other alternatives.
Section VI of today's preamble provides
more information on the affects on each
animal sector of various alternatives.
EPA is not able to conclude that the
stringency of the two options is
equivalent, due to the lack of data and
EPA's uncertainty over exactly how
many facilities may be subject to
regulation under each alternative.
Therefore, EPA is not proposing this
option. However, EPA seeks comment
on the option to allow States to select
which of two structures to implement,
and requests information on
establishing whether two options
provide equivalent environmental
protection.
TABLE 7-8.—COMPARISON OF REGULATORY ALTERNATIVES FOR SELECT CRITERIA a
Criteria
cotimotckH rvimnNanro r*nQtQ tn nAFO<5 Mimillion/vear ore-tcix)
Percentage Manure Covered by Proposed Regulations
Baseline
>1000
AU
12,660
3
605
49
2-Tier alternatives
>750 AU
19,100
5
721
58
>500 AU
25,540
7
831
64
>300 AU
39,320
11
980
72
3-Tier alternatives
Proposed
1 31 ,930
9
930
72
Alter-
native
2 >1 6,420
10
>680
SND
1 Three-tier Proposed: Number of affected facilities up to 39,320. Number of permitted facilities between 16,000 and 3z,uuu, <»""?™- . ,
^Three-tier Alternative: Number of affected facilities and industry costs are expected to.be greater than that estimated for NPDES Scenano 1
("Status Quo").
3 ND = Not Determined.
5. Additional Scenarios Considered But
Not Proposed
EPA also considered two other
scenarios, which would retain the
existing three-tier approach.
a. Scenario 1: Retain Existing
Structure. One of the alternative
regulatory scenarios would incorporate
all of today's proposed revisions except
those related to the tiered structure for
defining which AFOs are CAFOs. In
other words, the existing three-tier
structure (greater than 1,000 AU; 300
AU to 1,000 AU; fewer than 300 AU)
would remain in place, and the
conditions for defining the middle tier
operations would not change. Thus, as
under the existing regulation, mid-sized
AFOs (300 AU to 1,000 AU) would be
defined as CAFOs only if, in addition to
the number of animals confined, they
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also meet one of the two specific criteria
governing the method of discharge: (1)
Pollutants are discharged through a
man-made ditch, flushing system, or
other similar man-made device; or (2)
pollutants are discharged directly into
waters of the United States that
originate outside of the facility and pass
over, across, or through the facility or
otherwise come into direct contact with
the confined animals.
EPA is not proposing this scenario
because these conditions have proven to
be difficult to interpret and implement
for AFOs in the 300 to 1,000 AU size
category, and thus have not facilitated
compliance or enforcement, and the
scenario does not meet the goal of
today's proposal to simplify the NPDES
regulation for CAFOs. The two criteria
governing method of discharge, e.g.,
"man-made device" and "stream '
running through the CAFO," are subject
to interpretation, and thus difficult for
AFO operators in this size range to
determine whether or not the permit
authority would consider them to be a
CAFO. EPA does not believe it is
necessary to retain these criteria because
all discharges of pollutants from
facilities of this size should be
considered point source discharges.
While the odier proposed changes go a
long way to improve the effectiveness of
the NPDES program for CAFOs, EPA
believes the definition criteria for
facilities in this size range also need to
be amended to make the regulation
effective, simple, and enforceable.
b. Scenario 2: Revised Conditions
Without Certification. The second
scenario EPA considered would also
retain the existing three-tier structure,
and would modify the conditions for
defining the middle tier AFOs as CAFOs
in the same way that today's proposed
three-tier structure does. That is, any
AFO that meets the size condition (300
AU to 1,000 AU) would be defined as
a CAFO if it met one or more of the
following risk-based conditions: (1)
Direct contact of animals with waters of
the U.S.; (2) insufficient storage and
containment at the production area to
prevent discharge from reaching waters
of the U.S.; (3) evidence of discharge in
the last five years; (4) the production
area is located within 100 feet of waters
of the U.S.; (5) the operator does not
have, or is not implementing, a Permit
Nutrient Plan; and (6) any manure
transported off-site is transferred to
recipients of more than twelve tons
annually without following proper off-
site manure management, described
above in the discussion of the three-tier
structure (co-proposed with omitting
this requirement).
In this scenario, owners or operators
of AFOs in the middle tier would not be
required to certify to the permit
authority that the facility is not a CAFO.
However, all facilities that do meet one
or more of the conditions would have a
duty to apply for an NPDES permit. This
scenario is not being proposed because
of concerns that there would be no way
for the permit authority to know which
operations were taking the exemption
and which should, in fact, be applying
for a permit. The certification scenario
provides a measure of assurance to the .
public, the permit authority, and the
facilities' owners or operators, that
CAFOs and AFOs are implementing
necessary practices to protect water
quality.
C. Changes to the NPDES Regulations
hi addition to changing the threshold
for determining which facilities are
CAFOs, EPA is proposing a number of
other changes that address how the
permitting authority determines
whether a facility is an AFO or a CAFO
that, therefore, must apply for 'an
NPDES permit. These proposed
revisions are discussed in this section
and in section D.
1. Change the AFO Definition to Clearly
Distinguish Pasture Land
EPA is proposing to clarify the
regulatory language that defines the
term "animal feeding operations," or
AFO, in order to remove ambiguity. See
proposed § 122.23(a)(2). The proposed
rule language would clarify that animals
are not considered to be "stabled or
confined" when they are in areas such
as pastures or rangeland that sustain
crops "or forage during the entire time
animals are present. Other proposed
changes to the definition of AFO are
discussed below in section 3.e.
To be considered a CAFO, a facility
must first meet the AFO definition.
AFOs .are enterprises where animals are
kept and raised in confined situations.
AFOs concentrate animals, feed, manure
and urine, dead animals, and
production operations on a small land
area. Feed is brought to the animals
rather than the animals grazing or
otherwise seeking feed in pastures,
fields, or on rangeland. The current
regulation [40 CFR 122.23(b)(l)] defines
an AFO as a "lot or facility where
animals have been, are, or will be
stabled or confined and fed or
maintained for a total of 45 days or more
in any 12 month period; and where
crops, vegetation?,] forage growth, or
post-harvest residues are not sustained
over any portion of the lot or facility in
the normal growing season" [emphasis
added].
The definition states that animals
must be kept on the lot or facility for a
minimum of 45 days, in a 12-month '.
period. If an animal is at a facility for
any portion of a day, it is considered to
be at the facility for a full day. However,
this does not mean that the same
animals must remain on the-lot for 45
consecutive days or more; only that
some animals are fed or maintained on
the lot or at the facility 45 days out of
any 12-month period. The 45 days do
not have to be consecutive, and the 12-
month period does not have to
correspond to the calendar year. For
example, June 1 to the following May 31
would constitute a 12-month period.
The definition has proven to be
difficult to implement and has led to •
some confusion. Some CAFO operators
have asserted that they are not AFOs
under this definition where incidental
growth occurs on small portions of the
confinement area. In the case of certain
wintering operations, animals confined
during winter months quickly denude
the feedlot of growth that grew during
the summer months. The definition was
not intended to exclude, from the
definition of an AFO, those confinement
areas that have growth over only a small
portion of the facility or that have
growth only a portion of the time that
the animals are present. The definition
is intended to exclude pastures and
rangeland that are largely covered with
vegetation that can absorb nutrients in
the manure. It is intended to include as
AFOs areas where animals are confined
in such a density that significant
vegetation cannot be sustained over
most of the confinement area.
As indicated in the original CAFO
rulemaking in the 1970s, the reference
to vegetation in the definition is
intended to distinguish feedlots
(whether outdoor confinement areas or
indoor covered areas with constructed
floors) from pasture or grazing land. If
a facility maintains animals in an area
without vegetation, including dirt lots
or constructed floors, the facility meets
this part of the definition. Dirt lots with
nominal vegetative .growth while
animals are present are also considered
by EPA to meet the second part of the
AFO definition, even if substantial
growth of vegetation occurs during
months when animals are kept
elsewhere. Thus, in the case of a
wintering operation, EPA considers the
facility an AFO potentially subject to
NPDES regulations as a CAFO. It is not
EPA's intention, however, to include
within the AFO definition pasture or
rangeland that has a small, bare patch, of
land, in an otherwise vegetated area,
that is caused by animals frequently
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3005
congregating if the animals are not
confined to the area.
The following examples are presented
to further clarify EPA's intent, (1) When
animals are restricted to vegetated areas
as in the case of rotational grazing, they.
would not be considered to be confined
in an AFO if they are rotated out of the
area while the ground is still covered
with vegetation. (2) If a small portion of
a pasture is barren because, e.g., animals
.congregate near the feed trough in that
portion of the pasture, that area is not
considered an AFO because animals are
not confined to the barren area; (3) If an
area has vegetation when animals are
initially confined there, but the animals
remove the vegetation during their
confinement, that area would be
considered an AFO. This may occur, for
instance, at some wintering operations.
Thus, to address the ambiguities
noted above, EPA is proposing to clarify
the regulatory language that defines the
term "animal feeding operation" as
follows: "An animal feeding operation
or AFO is a facility where animals
(other than aquatic animals) have been,
are, or will be stabled or confined and
fed or maintained for a total of 45 days
or more in any 12-month period.
Animals are not considered to be
stabled or confined when they are in
areas such as pastures or rangeland that
sustain crops or forage growth during
the entire time that animals are present.
Animal feeding operations include both
the production area and land
application area as defined below."*EPA
is interested in receiving comments
regarding whether the proposed revision
to the AFO definition clearly
distinguishes confinement areas from
pasture land.
2. Proposed Changes to the NPDES
Permitting Regulation for Determining
Which AFOs are CAFOs
To improve the effectiveness and
clarity of the NPDES regulation for
CAFOs, EPA is proposing to revise the
regulation as discussed in the following
sections.
a. Eliminate the Term "Animal Unit .
To remove confusion for the regulated
community concerning the definition of
. the term "animal unit" or "AU," EPA is
proposing to eliminate the use of the
term in the revised regulation. Instead of
referring to facilities as having greater or
fewer than 500 animal units, for
example, EPA will use the term
"CAFO" to refer to those facilities that
are either defined or designated, and all
others as "AFOs." However, in the text
of today's preamble, the term AU will be
used in order to help the reader
understand the differences between the
existing regulation and today's proposal.
If this revision is adopted, the term AU
will not be used in the final regulation.
Section VII.B, above, lists the numbers
of animals in each sector that would be
used to define a facility as a CAFO.
EPA received comment on the
concept of animal units during the AFO
Strategy listening sessions, the small
business outreach process, and on
comments submitted for the draft CAFO
NPDES Permit Guidance and Example
Permit. EPA's decision to move away
from the concept of "animal units" is
supported by the inconsistent use of this
concept across a number of federal
programs, which has resulted in
confusion in the regulated community.
A common thread across all of the
federal programs is the need to
normalize numbers of animals across
animal types. Animal units have been
established based upon a number of
different values that include live weight,
forage requirements, or nutrient
excretion.
USDA and EPA have different
"animal unit" values for the livestock
sectors. Animal unit values used by
USDA are live-weight based, and
account for all sizes and breeds of
animals at a given operation. This is
particularly confusing as USDA's
animal unit descriptions result in
different values in each sector and at
each operation.
The United,States Department of
Interior (Bureau of Land Management
and National Park Service) also
references the concept of "animal unit"
in a number of programs. These
programs are responsible for the •
collection of grazing fees for federal
lands. The animal unit values used in
these programs are based upon forage
requirements. For Federal lands an
animal unit represents one mature cow,
bull, steer, heifer, horse, mule, or five
sheep, or five goats, all over six months
of age. An animal unit month is based
on tib.e amount of forage needed to
sustain one "animal unit for one month.
Grazing fees for Federal lands are •
charged by animal unit months.
In summary, using the total number of
head that defines an operation as a
CAFO will minimize confusion with
animal unit definitions established by
other programs. See tables 7-6 and 7—
7 above. '
b. How Will Operations With Mixed
Animal Types be Counted? EPA is
proposing to eliminate the existing
mixed animal provision, which
currently requires an operator to add the
number of animal units from all animal
sectors at the facility when determining
whether it is a CAFO. (Poultry is
currently excluded from this mixed
animal type calculation). While the
mixed calculation would be eliminated,
once the number of animals from one
sector (e.g. beef, dairy, poultry, swine,
veal) of one type cause an operation to
be defined as a CAFO, manure from all
confined animal types at the facility
would be covered by the permit
conditions, hi the event that waste
streams from multiple livestock species
are commingled, and the regulatory
requirements for each species are not
equivalent, the permit must apply the
more stringent requirements.
In the existing regulation, a facility
with 1,000 animal units or the
cumulative number of mixed animal
types which exceeds 1,000, is defined as
a CAFO. Animal unit means a unit of
measurement for any animal feeding
operation calculated by adding the
following numbers: the number of
slaughter and feeder cattle multiplied by
1.0, plus the number of mature dairy
cattle multiplied by 1.4, plus the
number of swine weighing over 25
kilograms (approximately 55 pounds)
multiplied by 0.4, plus the number of
sheep multiplied by 0.1, plus the
number of horses multiplied by 2.0. As
mentioned, poultry operations are
excluded from this mixed unit
calculation as the current regulation
simply stipulates the number of birds
that define the operation as a CAFO,
and assigns no multiplier.
Because simplicity is one objective of
these proposed regulatory revisions, the
Agency believes that either all animal
types, including poultry, covered by the
effluent guidelines and NPDES
regulation should be included in the
formula for mixed facilities, or EPA
should eliminate the facility multipliers
from the revised rule. Today's
rulemaking proposes changes that
would have to be factored in to a revised
mixed animal calculation which would
make the regulation more complicated
to implement; For example, EPA is
proposing to cover additional animal
types (dry chicken operations, immature
swine and heifer operations). Thus, EPA
is proposing to eliminate the mixed
operation calculation rather than revise
it and create a more complicated
regulation to implement that would
potentially bring smaller farms-into
regulation.
EPA believes that the effect of this
proposed change would be sufficiently
protective of the environment while
maintaining a consistently enforceable
regulation. EPA estimates 25 percent of
AFOs with less than 1,000 AU have
multiple animal types present
simultaneously at one location, and
only a small fraction of these AFOs
would be CAFOs exceeding either 300
AU or 500 AU when all animal types are
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counted. EPA also believes that few
large AFOs possess mixed animals due
to the increasingly specialized nature of
livestock and poultry production.
Therefore, EPA believes that a rule
which required mixed animal types to
be part of the threshold calculation to
determine if a facility is a CAFO would
result in few additional operations
meeting the definition of a CAFO. In
addition, most facilities with mixed
animal types tend to be much smaller,
and tend to have more traditional,
oftentimes more sustainable, production
systems. These farms tend to be less
specialized, engaging in both animal
and crop production. They often have
sufficient cropland and fertilizer needs
to land apply manure nutrients
generated at the farm's livestock or
poultry business. Nevertheless, should
such an AFO be found to be a
significant contributor of pollution to
waters of the U.S., it could be
designated a CAFO by the permit
authority.
EPA is, therefore, proposing to
eliminate the mixed animal calculation
in determining which AFOs are CAFOs.
Once an operation is a CAFO for any
reason, manure from all confined
animal types at the facility is subject to
the permit requirements. EPA is
requesting comment on the number of
operations that could potentially have
the equivalent of 500 AU using the
mixed calculation that would be
excluded from regulation under this
proposal.
c. Is an AFO Considered a CAFO if it
Only Discharges During a 25-Year, 24-
Hour Storm? EPA is proposing to
eliminate the 25-year, 24-hour storm
event exemption from the CAFO
definition (40 CFR 122.23, Appendix B),
thereby requiring any operation that
meets the definition of a CAFO either to
apply for a permit or to establish that it
has no potential to discharge. Under the
proposed three-tier structure an
operation with 300 AU to 1,000 AU may
certify that it is not a CAFO if it is
designed, constructed, and maintained
in accordance with today's effluent
guidelines and it does not meet any of
the risk-based conditions. See Section
Vn.B.2.
The existing NPDES definition of a
CAFO provides that "no animal feeding
operation is a concentrated animal
feeding operation * * * as defined
above* * * if such animal feeding
operation discharges only as the result
of a 25-year, 24-hour storm event" (40
CFR § 122.23, Appendix B). This
provision applies to AFOs with 300 AU
or more that are defined as CAFOs
under the existing regulation. (Facilities
of any size that are CAFOs by virtue of
designation are hot eligible for this
exemption because, by the terms of
designation, it does not apply to them.
Moreover, they have been determined
by the permit authority to be a
significant contributor of pollution to
waters of the U.S.)
The 25-year, 24-hour standard is an
engineering standard used for
construction of storm water detention
structures. The term "25-year, 24-hour
storm event" means the maximum 24-
hour precipitation event with a probable
recurrence of once in 25 years, as
defined by the National Weather Service
(NWS) in Technical Paper Number 40
(TP40), "Rainfall Frequency Atlas of the
United States," May 1961, and
subsequent amendments, or by
equivalent regional or State rainfall
probability information developed
therefrom. [40 CFR Part 412.11(e)].
(Note that the NWS is updating some of
the Precipitation Frequency
Publications, including part of the TP40.
In 1973, the National Atmospheric and
Oceanic Administration (NOAA) issued
the NOAA Atlas 2, Precipitation
Frequency Atlas of the Western United
States. The Atlas is published in a
separate volume for each of the eleven
western states. An update for four of the
State volumes is currently being
conducted. In addition, the NWS is
updating TP40 for the Ohio River Basin
which covers a significant portion of the
eastern U.S. The updates will reflect
more than 30 years of additional data
and will benefit from NWS enhanced
computer capabilities since the original.
documents were generated almost 40
years ago.) As discussed further in
section VIII, the 25-year, 24-hour storm
event also is used as a standard in the
effluent limitation guideline.
The circularity of the 25-year, 24-hour
storm event exemption in the existing
CAFO definition has created confusion
that has led to difficulties in
implementing the NPDES regulation.
The effluent guidelines regulation,
which is applicable to permitted
CAFOs, requires that CAFOs be
designed and constructed to contain
such an event. However, the NPDES
regulations allows facilities that
discharge only as a result of such an
event to avoid obtaining a permit. This
exemption has resulted in very few
operations actually obtaining NPDES
permits, which has hampered
implementation of the NPDES program.
While there are an estimated 12,000
AFOs likely to meet the current
definition of a CAFO, only about 2,500
such facilities have obtained an NPDES
permit. Many of these unpermitted
facilities may incorrectly believe they
qualify for the 25-year, 24-hour storm
permitting exemption. These
unpermitted facilities operate outside *
the current NPDES program, and State
and EPA NPDES permit authorities lack
the basic information needed to
determine whether or not the exemption
has been applied correctly and whether
or not the CAFO operation is in
compliance with NPDES program
requirements.
EPA does not believe that the
definition as a CAFO should hinge on
whether an AFO only discharges
pollutants due to a 25-year, 24-hour
storm event. Congress clearly intended
for concentrated animal feeding
operations to be subject to NPDES
permits by explicitly naming CAFOs as
point sources in the Clean Water Act
Section 502(14). Further, Section 101(a)
of the Act specifically states that
elimination of discharges down to zero
is to be achieved where possible, and
EPA does not believe that facilities
should avoid the regulatory program
altogether by merely claiming that they
meet the 25-year, 24-hour criterion. This
issue is discussed further below in
section VII.C.2(c).
The public has expressed widespread
concern regarding whether some of
these currently unpermitted facilities
are, in fact, entitled to this exemption.
Based on comments EPA has received in
a variety of forums, including during the
AFO Strategy listening sessions and on
the draft CAFO permit guidance, EPA
believes there is a strong likelihood that
many of these .facilities are discharging
pollutants to waters of the U.S. EPA is
concerned that, in applying the 25-year,
24-hour storm exemption, operations
are not now taking into consideration
runoff from their production areas, or
are improperly interpreting which
discharges are the result of 25-year 24-
hour storms and chronic rainfall which
may result in breaches and overflows of
storage systems, all of which cause
pollution to enter waters of the U.S.
Additionally, facilities may not be
considering discharges from improper
land application of manure and
wastewater.
EPA is today proposing to eliminate
the 25-year, 24-hour storm exemption
from the CAFO definition (40 CFR
122.23, Appendix B) in order to: (a)
Ensure that all CAFOs with a potential
to discharge are appropriately
permitted; (b) ensure through permitting
that facilities are, in fact, properly
designed, constructed, and maintained
to contain a 25-year, 24-hour storm
event, or to meet a zero discharge
requirement, as the case may be; (c)
improve the ability of EPA and State
permit authorities to monitor
compliance; (d) ensure that facilities do
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3007
not discharge pollutants from their
production areas or from excessive land
application of manure and wastewater;
(e) make the NPDES permitting
provision consistent with today's
proposal to eliminate the 25-year, 24-
hour storm design standard from the
effluent guidelines for swine, veal and
poultry; and (f) achieve EPA's goals of
simplifying the regulation, providing
clarity to the regulated community, and
improving the consistency of
implementation.
Under the proposed two-tier
structure, any facility that is defined as
a CAFO would be a CAFO even if it
: only discharges in the event of a 25-
year, 24-hour storm. Further, the CAFO
operator would be required to apply for
an NPDES permit, as discussed below
regarding the duty to apply for a NPDES
permit. (If the operator believes the
facility never discharges, the operator
could request a determination of no
potential to discharge, as discussed
below.) Under the three-tier structure a
facility with 300 AU to 1,000 AU would
be required "to either certify it is not a •
CAFO, to apply for a permit, or
demonstrate it has no potential to
discharge. Today's effluent guidelines
proposal would retain the design
specification for beef or dairy facilities,
which would allow a permitted facility
to discharge due to a 25-year, 24-hour
event, as long as the facility's
containment system is designed,
constructed and operated to handle
manure and wastewater plus
precipitation from a 25-year, 24-hour
storm event (unless a permit writer
imposed a more stringent, water quality-
based effluent limitation). However, a
facility that meets the definition of
CAFO and discharges during a 25-year,
24-hour storm event, but has failed to
apply for an NPDES permit (or to certify
in the three-tier structure), would be
subject to enforcement for violating the
CWA. Swine, veal and poultry CAFOs
would be required to achieve a zero
discharge standard at all times.
EPA considered limiting this change
to the very largest CAFOs (e.g.,
operations with 1,000 or more animal
units), and retaining the exemption for
smaller facilities. However, EPA is
concerned that this could allow
significant discharges resulting from
excessive land application of manure
and wastewater to remain beyond the
scope of the NPDES permitting program,
thereby resulting in ongoing discharge
of CAFO-generated pollutants into
waters of the U.S. Moreover, EPA
believes that retaining the exemption for
certain operations adds unnecessary
complexity to the CAFO definition.
The Small Business Advocacy Review
Panel also considered the idea of
removing the 25-year, 24-hour
exemption. While the Panel agreed.that
this was generally appropriate for
operations above the 1,000 AU
threshold, it was divided on whether it
would also be appropriate to remove the
exemption for facilities below this
threshold. The Panel noted that for
some such facilities, removing the
exemption would not expand the scope
of the current regulation, but rather
ensure coverage for facilities that should
already have obtained a permit.
However, the Panel also recognized that
eliminating the exemption would
require facilities that do properly
quality for it—e.g., because they do have
sufficient manure management and
containment in place, or for some other
reason, do not discharge except in a 25-
year, 24-hour storm—to'obtain a permit
or certify that none is needed. The Panel
recommended that EPA carefully weigh
the costs and benefits of removing the
exemption for small entities and that it
fully analyze the incremental costs
associated with permit applications for
those facilities not presently permitted
that can demonstrate that they do not
discharge in less than a 25-year, 24-hour
storm event, as well as any costs
associated with additional conditions
related to land application, nutrient
management, or adoption of BMPs that
the permit might contain. The Panel
further recommended that EPA consider
reduced application requirements for
small operators affected by the removal
of the exemption. The Agency requests
comment on whether to retain this
exemption for small entities and at what
animal unit threshold would be
appropriate for doing so.
d. Who Must Apply for and Obtain an
NPDES Permit? EPA is proposing today
to adopt regulations that would
expressly require all CAFO owners or
operators to apply for an NPDES permit.
See proposed § 122.23(c). That is,
owners or operators of all facilities
'defined or designated as CAFOs would
be required to apply for an NPDES
permit. The existing regulations contain
a general duty to apply for a permit,
which EPA believes applies to virtually
all CAFOs. The majority of CAFO owner
or operators, however, have not applied
for an NPDES permit. Today's proposed
revisions would clarify that all CAFOs
owners or operators must apply for an
NPDES permit; however, if he or she
believes the CAFO does not have a
potential to discharge pollutants to
waters of the U.S. from either its
production area or its land application
area(s), he or she could make a no
potential discharge demonstration to the
permit authority in lieu of submitting a
full permit application. If the permit
authority agrees that the CAFO does not
have a potential to discharge, the permit
authority would not need to issue a
permit. However, if the unpermitted
CAFO does indeed discharge, it would
be violating the CWA prohibition
against discharging without a permit
and would be subject to civil and
criminal penalties. Thus, an
unpermitted CAFO does not get the
benefit of the 25-year, 24-hour storm
standard established by the effluent
guidelines for beef and dairy, nor does
it have the benefit of the upset and
bypass affirmative defenses.
The duty to apply for a permit under
existing regulations. EPA believes that
virtually all facilities defined as CAFOs
already have a duty to apply for a .
permit under the current NPDES
regulations, because of their past or
current discharges or potential for future
discharge. Under NPDES regulations at
40 CFR Part 122.21(a), any person who
discharges or proposes to discharge
pollutants to the waters of the United
States from a point source is required to
apply for an NPDES permit. CAFOs are
point sources by definition, under § 502
of the CWA and 40 CFR 122.2. Thus,
.any CAFO that "discharges or proposes
to discharge" pollutants must apply for
a permit-
Large CAFOs with greater than 1,000
AU pose a risk of discharge in a number
of different ways. For example, a
discharge of pollutants to surface waters
can occur through a spill from the waste
handling facilities, from a breach or
overflow of those facilities, or through
runoff from the feedlot area, A discharge
can also occur through runoff of
pollutants from application of manure
and associated wastewaters to the land
or through seepage from the production
area to ground water where there is a
direct hydrologic connection between
ground water and surface water. Given
the large volume of manure these
facilities generate and the variety of
ways they may discharge, and based on
EPA's and the States' own experience in
the field, EPA believes that all or
virtually all large CAFOs have had a
discharge in the past, have a current
discharge, or have the potential to
discharge in the future. A CAFO that
meets any one of these three criteria
would be a facility that "discharges or
proposes to discharge" pollutants and
would therefore need to apply for a
permit under the current regulations.
Where CAFO has not discharged in
the past, does not now discharge
pollutants, and does not expect to
discharge pollutants in the future, EPA
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believes that the owner or operator of
that facility should demonstrate during
the NPDES permit application process
that it is, in fact, a "no discharge"
facility. See proposed § 122.23(e). EPA
anticipates that very few large CAFOs
will be able to successfully demonstrate
that they do not discharge pollutants
and do not have a reasonable potential
to discharge in the future, and
furthermore, that very few large CAFOs
will wish to forego the protections of an
NPDES permit. For instance, only those
beef and dairy CAFOs with an NPDES
permit will be authorized to discharge
in a 25-year, 24-hour storm.
EPA also believes that a CAFO owner
or operator's current obligation to apply
for an NPDES permit is based not only
on discharges from the feedlot area but
also on discharges from the land
application areas under the control of
the CAFO operator. More specifically,
discharges of CAFO-generated manure
and/or wastewater from such land
application areas should be viewed as
discharges from the CAFO itself for the
purpose of determining whether it has
a potential to discharge. EPA recognizes,
however, that it has not previously
defined CAFOs to include the land
application area. EPA is proposing to
explicitly include the land application
area in the definition of a CAFO in
today's action.
The need for a clarified, broadly
applicable duty to apply. EPA believes
that virtually all large CAFOs have had
a past or current discharge or have the
potential to discharge in the future, and
that meeting any one of these criteria
would trigger a duty to apply for a
permit. Today, EPA is proposing to
revise the regulations by finding that, as
a rebuttable presumption, all CAFOs do
have a potential to discharge and,
therefore, are required to apply for and
to obtain an NPDES permit unless they
can demonstrate that they will not
discharge. See proposed § 122.23(c).
(See section VH(F)3 for a fuller
discussion on demonstrating "no
potential to discharge.")
EPA has not previously sought to
categorically adopt a duty to apply for
an NPDES permit for all facilities within
a particular industrial sector. The
Agency is proposing today to do so for
CAFOs for reasons that involve the
unique characteristics of CAFOs and the
zero discharge regulatory approach that
applies to them.
First, as noted, since the inception of
the NPDES permitting program in the
1970s, a relatively small number of
larger CAFOs has actually sought
permits. Information from State permit
authorities and EPA's own regional
offices indicates that, currently,
approximately 2,500 CAFOs have
NPDES permits out of approximately
12,000 CAFOs with greater than 1,000
AU.
EPA believes there are a number of
reasons why so few CAFOs have sought
NPDES permits over the years. The
primary reason appears to be that the
definition of a CAFO in the current
regulations (as echoed in the regulations
of some State programs) excludes
animal feeding operations that do not
discharge at all or discharge only in the
event of a 25-year, 24-hour storm. [40
CFR 122.23, Appendix BJ. Based on the
existing regulation, many animal
feeding operations that claim to be "zero
dischargers" believe that they are not
subject to NPDES permitting because
they are excluded from the CAFO
definition and thus are not CAFO point
sources.
EPA'believes that many of the
facilities that have relied on this
• exclusion from the CAFO definition
may have misinterpreted this provision.
It excludes facilities from the CAFO
definition only when they neither
discharge pollutants nor have the
potential to discharge pollutants in a 25-
year, 24-hour storm. In fact, as
explained above, a facility that has at
least a potential to discharge pollutants
(and otherwise meets the CAFO
definition) not only is defined as a
CAFO but also has a duty to apply for
an NPDES permit, regardless of whether
it actually discharges. (40 CFR
122.21(a)). Thus, many facilities that
have at least a potential to discharge
manure and wastewaters may have
avoided permitting based on an
incorrect reliance on this definitional
exclusion.
To compound the confusion under
the current regulations, EPA believes,
there has been misinterpretation
surrounding the issue of discharges
from a CAFO's land application areas.
As EPA has explained in section VII.D
of today's notice, runoff from land
application of CAFO manure is viewed
as a discharge from the CAFO point
source itself. Certain operations may
have claimed to be "zero dischargers"
when in fact they were not, and are not,
zero dischargers when runoff from their
land application areas is taken into
account.
Another category of operations that
may have improperly avoided
permitting are those that have had a past
discharge of pollutants, and are not
designed and operated to achieve zero •
discharge except in a 25-year, 24-hour
storm event. Many of these facilities
may have decided not to seek a permit
because they believe they will not have
any future discharges. However, as
explained above, an operation that has"
had a past discharge of pollutants is
covered by the NPDES permitting
regulations in the same way as
operations that have a "potential" to
discharge—i.e., it is not only defined as
a CAFO (where it meets the other
elements of the definition) but is
required to apply for a permit [Carr v.
Alta Verde Industries, Inc., 931 F.2d
1055 (5th Cir. 1991)]. Facilities that
have had a past discharge meet the
criteria of § 122.21(a), in EPA's view,
both as "dischargers" and as operations
that have the potential for further
discharge. Accordingly, they are
required to apply for an NPDES permit. •
Misinterpretation regarding the need to
apply for a permit may also have
occurred in cases where the past
discharges were from land application
runoff, as explained above.
Finally, the nature of these operations
is that any discharges from manure
storage structures to waters of the U.S.
are usually only intermittent, either due
to accidental releases from equipment
failures or storm events or, in some
cases, deliberate releases such as
pumping out lagoons or pits. The
intermittent nature of these discharges,
combined with the large numbers of
animal feeding operations nationwide,
makes it very difficult for EPA and State
regulatory agencies to know where
discharges have occurred (or in many
cases, where animal feeding operations
are even located), given the limited
resources for conducting inspections. In
this sense, CAFOs are distinct from
typical industrial point sources subject
to the NPDES program, such as
manufacturing plants, where a facility's
existence and location and the fact that
it is discharging wastewaters at all is
usually not in question. Accordingly, it
is much easier for CAFOs to avoid the
permitting system by not reporting their
discharges, and there is evidence that
such avoidances have taken place.
In sum, EPA believes it is very
important in these regulatory revisions
to ensure that all CAFOs have a duty to
apply for an NPDES permit, including
those facilities that currently have a
duty to apply because they meet the
definition of CAFO under the existing
regulations and those facilities which
would meet the proposed revised
definition of CAFO. Two of the
revisions that EPA is proposing today to
other parts of the CAFO regulations
would themselves significantly address
this matter. First, EPA is proposing to
eliminate the 25-year, 24-hour storm
exemption from the definition of a
CAFO. Operations would no longer be
able to avoid being defined as CAFO
point sources subject to permitting on
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3009
the basis that they do not discharge or
discharge only in the event of a 25-year,
24-hour storm. Second, EPA is
proposing to clarify that land
application areas are part of the CAFO
and any associated discharge from these
areas is subject to permitting.
While these two proposed changes ,
would help address the "duty to apply"
issue, EPA does not believe they would
go far enough. Even with eliminating
the 25-year, 24-hour storm exemption
from the CAFO definition, EPA is
concerned that operations would still
seek to avoid permitting by claiming
they are "zero dischargers."
Specifically, EPA has encountered a
further zero discharge conundrum: A
facility claims that by controlling its
discharge down to zero—the very level
that a permit would require—it has
effectively removed itself from CWA
jurisdiction, because the CWA simply
prohibits discharging without a permit,
so a facility that does not discharge does
not need a permit. EPA believes this
would be an incorrect reading of the
CWA and would not be a basis for
claiming an exemption from permitting
(as explained directly below). Therefore,
it is important to clarify in the
regulations that even CAFOs that claim
to be zero dischargers must apply for a
permit.
To round out the basis for this
proposed revision, EPA is proposing a
regulatory presumption in the
regulations that all CAFOs have a
potential to discharge to the waters such
that they should be required to apply for
a permit. EPA believes this would be a
reasonable presumption on two
grounds. First, the Agency believes this
is reasonable from a factual standpoint,
as is fully discussed in section V of
today's preamble.
This factual finding would become
even more compelling under today's
proposals to eliminate the 25-year, 24-
hour storm exemption from the CAFO
definition and to clarify that discharges
from on-site land application areas, are
considered CAFO point source
discharges. If these two proposals were
put in place, EPA believes, many fewer
operations would be claiming that they
do not discharge.
Second, a presumption that all CAFOs
have a potential to discharge would be
reasonable because of the need for
clarity on the issues described above
and the historical inability under the
current regulations to effectuate CAFO •
permitting. Under today's proposal, the
duty would be for each CAFO to apply
for a permit, not necessarily to obtain
• one. A CAFO that believes it does not
have a potential to discharge could seek
to demonstrate as much to the
permitting authority in lieu of
submitting a full permit application. (To
avoid submitting a completed permit
application, a facility would need to
receive a "no potential to discharge"
determination from the permit authority
prior to the deadline for applying for a
permit. See section VH.F.3 below.) If the
demonstration were successful, the
permitting authority would not issue a
permit. Therefore, the duty to apply
would be based on a rebuttable
presumption that each facility has a
potential to discharge. Without this
rebuttable presumption, EPA believes it
could not effectuate proper permitting
of CAFOs because of operations that
would claim to be excluded from the
CWA because they do not discharge.
CWA authority for a duty to apply. In
pre-proposal discussions, some
stakeholders have questioned EPA's
authority under the Clean Water Act to
impose a duty for all CAFOs to apply for
a permit. EPA believes that the CWA
does provide such authority, for the
following reasons.
Section 301(a) of the CWA says that
no person may discharge without an
NPDES permit. The Act is silent,
however, on the requirement for permit
applications. It does not explicitly
require anyone to apply for a permit, as
some stakeholders have pointed out. But
neither does the Act expressly prohibit
EPA from requiring certain facilities to
submit an NPDES permit application or
from issuing an NPDES permit without
one. Section 402(a) of the Act says
simply that the Agency may issue an
NPDES permit after an opportunity for
public hearing.
Indeed, finding that EPA could not
require permitting of CAFOs would
upset the legislative scheme and render
certain provisions of the Act
meaningless. Section 301(b)(2)(A),
which sets BAT requirements for
existing sources and thus is at the heart
of the statutory scheme, states that EPA
shall establish BAT standards that
"require the elimination of discharges of
all pollutants if the Administrator finds
* * * that such elimination is
technologically and economically
achievable.* * *" In other words,
Congress contemplated that EPA could
set effluent standards going down to
zero discharge where appropriate.
Section 306, concerning new sources,
contains similar language indicating
that zero discharge may be an
appropriate standard for some new
sources. Section 402 puts these
standards into effect by requiring EPA to
issue NPDES permits that apply these
standards and ensure compliance with
them. Thus, the Act contemplates the
issuance of NPDES permits that require
zero discharge. These provisions are
underscored by Section 101(a) of the
Act, which sets a national goal of not
just reducing but eliminating the
discharge of pollutants to the waters.
This statutory scheme would be
negated if facilities were allowed to
avoid permitting by claiming that they
already meet a zero discharge standard
that is established in the CAFO
regulations and that a permit would
require. Issuing a zero discharge
standard would be an act of futility
because it could not be implemented
through a permit. Under a contrary
interpretation, a CAFO could repeatedly
discharge and yet avoid permitting by
. claiming that it does not intend to
discharge further. EPA does not believe
that Congress intended to tie the
Agency's hands in this manner. To be
sure, in no other area of the NPDES
program are industrial operations
allowed to avoid permitting by claiming
that they already meet the limits that a
permit would require. That would be a
plainly wrong view of the Act; Section
301(a) states unequivocally that no
person may discharge at all without a
permit. The Act does not contemplate a
different system for facilities that are
subject to a zero discharge standard, and
it is the unique nature of the zero
discharge standard that makes it
appropriate for EPA to require CAFOs to
apply for permits.
EPA also finds authority to require
NPDES permit applications from CAFOs
in Section 308 of the Act. Under Section
308, the Administrator may require
point sources to provide information
"whenever required to carry out the
objective of this chapter," for purposes,
among other things, of determining ;
Whether any person is in violation of
effluent limitations, or to carry out
Section 402 and other provisions.
Because EPA proposes a presumption
that all CAFOs have a potential to
discharge pollutants, it is important,
and within EPA's authority, to collect
information from CAFOs in order to
determine if they are in violation of the
Act or otherwise need a permit.
EPA solicits comment on the
proposed duty to apply.
e. The Definitions of AFO and CAFO
Would Include the Land Areas Under
the Control of the Operator on Which
Manure is Applied. In today's proposal,
EPA defines an AFO to include both the
animal production areas of the
operation and the land areas, if any,
under the control of the owner or
operator, on which manure and
associated waste waters are applied. See
proposed § 122.23(a)(l). The definition
of a CAFO is based on the AFO
definition and thus would include the
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land application areas as well.
Accordingly, a CAFO's permit would
include requirements to control not only
discharges from the production areas
but also those discharges from the land
application areas. Under the existing
regulations, discharges from a CAFO's
land application areas that result from
improper agricultural practices are
already considered to be discharges
from the CAFO and therefore, are
subject to the NPDES permitting
program. However, EPA believes it
would be helpful to clarify the
regulations on this point.
By the term "production area," EPA
means the animal confinement areas,
the manure storage areas (e.g. lagoon,
shed, pile), the feed storage areas (e.g.,
silo, silage bunker), and the waste
containment areas (e.g., berms,
diversions). The land application areas
include any land to which a CAFO's
manure and wastewater is applied (e.g.,
crop fields, fields, pasture) that is under
the control of the CAFO owner or
operator, whether through ownership or
a lease or contract. The land application
areas do not include areas that are not
under the CAFO owner's or operator's
control. For example, where a nearby
farm is owned and operated by someone
other than the CAFO owner or operator
and the nearby farm acquires the
CAFO's manure or wastewater, by
contract or otherwise, and applies those
wastes to its own crop fields, those crop
fields are not part of the CAFO.
The definition of an AFO under the
existing regulations refers to a "lot or
facility" that meets certain conditions,
including that "[drops, vegetation[,]
forage growth, or post-harvest residues
are not sustained in the normal growing
season over any portion of the lot or
facility." 40 CFR 122.23(b)(l). In
addition, the regulations define
"discharge of a pollutant" as the
addition of any pollutant to waters of
the United States from any point source.
40 CFR 122.2. EPA interprets the
current regulations to include
discharges of CAFO-generated manure
and wastewaters'from improper land
application to areas under the control of
the CAFO as discharges from the CAFO
itself. Otherwise, a CAFO could simply
move its wastes outside the area of
confinement, and over apply or
otherwise improperly apply those
wastes, which would render the CWA
prohibition on unpermitted discharges
of pollutants from CAFOs meaningless.
Moreover, the pipes and other manure-
spreading equipment that convey CAFO
manure and wastewaters to land
application areas under the control of
the CAFO are an integral part of the
CAFO. Under the existing regulations,
this equipment should be considered
part of the CAFO, and discharges from
this equipment that reach the waters of
the United States as a result of improper
land application should be considered
discharges from the CAFO for this
reason as well. In recent litigation
brought by citizens against a dairy farm,
a federal court reached a similar
conclusion. See CARE v. Sid Koopman
Dairy, et al., 54 F. Supp. 2d 976 (E.D.
Wash., 1999).
One of the goals of revising the
existing CAFO regulations is to make
the regulations clearer and more
understandable to the regulated
community and easier for permitting
authorities to implement. EPA believes'
that amending the definition of an AFO
(and,-by extension, CAFO) to expressly
include land application areas will help
achieve this clarity and will enable
permitting authorities to both more
effectively implement the proposed
effluent guidelines and to more
effectively enforce the CWA's
prohibition on discharging without a
permit. It would be clear under this
revision that the term "CAFO" means
the entire facility, including land
application fields and other areas under
the CAFO's control to which it applies
its manure and wastewater. By
proposing to include land application
areas in the definition of an AFO, and
therefore, a CAFO, discharges from
those areas would, by definition, be
discharges from a point source—i.e., the
CAFO. There would not need to be a
separate showing of a discernible,
confined, and discrete conveyance such
as a ditch.
While the CWA includes CAFOs
within the definition of a point source,
it does not elaborate on what the term
CAFO means. EPA has broad discretion
to define the term CAFO. Land
application areas are integral parts of
many or most CAFO operations. Land
application is typically the end point in
the cycle of manure management at
CAFOs. Significant discharges to the
waters in the past have been attributed
to the land application of CAFO-
generated manure and wastewater. EPA
does not believe that Congress could
have intended to exclude the discharges
from a CAFO's land application areas
from coverage as discharges from the
CAFO point source. Moreover, defining
CAFOs in this way is consistent with
EPA's effluent limitations guidelines for
other industries, which consider on-site
waste treatment systems to be part of the
production facilities in that the
regulations restrict discharges from the
total operation. Thus, it is reasonable for
EPA to revise the regulations by
including land application areas in the
definition of an AFO and CAFO.
While the proposal would include tie
land application areas as part of the
AFO and CAFO, it would continue to
count only those animals that are
confined in the production area when
determining whether a facility is a
CAFO.
EPA is also considering today
whether it is reasonable to interpret the
agricultural storm water exemption as
not applicable to any discharges from
CAFOs. See section VII.D.2. If EPA were
to adopt that interpretation, all
discharges from a CAFO's land
application areas would be subject to "
NPDES requirements, regardless of the
rate or manner in which the manure has
been applied to the land.
Please refer to section VII.D for a full
discussion of land application,
including EPA's proposal with regard to
land application of CAFO manure by
non-CAFOs.
EPA is requesting comment on this
approach.
f. What Types of Poultry Operations
are CAFOs? EPA is proposing to revise
the CAFO regulations to include all
poultry operations with the potential to
discharge, and to establish the threshold
for AFOs to be defined as CAFOs at
50,000 chickens and 27,500 turkeys. See
proposed § 122.23(a)(3)(i)(H) and (I).
The proposed revision would remove
the limitation on the type of manure
handling or watering system employed
at laying hen and broiler operations and
would, therefore, address all poultry
operations equally. This approach
would be consistent with EPA's
objective of better addressing the issue
of water quality impacts associated with
both storage of manure at the
production area and land application of
manure while simultaneously
simplifying the regulation. The
following discussion focuses on the
revisions to the threshold for chickens.
under each of the co-proposed
regulatory alternatives.
The existing NPDES CAFO definition
is written such that the regulations only
apply to laying hen or broiler operations
that have continuous overflow watering
or liquid manure handling systems
(i.e.,"wet" systems). (40 CFR Part 122,
Appendix B.) EPA has interpreted this
language to include poultry operations .
in which dry litter is removed from pens
and stacked in areas exposed to rainfall,
•or piles adjacent to a watercourse. These
operations may be considered to have
established a crude liquid manure
system (see 1995 NPDES Permitting
Guidance for CAFOs). The existing
CAFO regulations also specify different
thresholds for determining which AFOs
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3011
are CAFOs depending on which, of these
two types of systems the facility uses
(e.g., 100,000 laying hens or broilers if
the facility has continuous overflow
watering; 30,000 laying hens or boilers
if the facility has a liquid manure -
system). When the NPDES CAFO
regulations were promulgated, EPA
selected these thresholds because the
Agency believed that most commercial
operations used wet systems (38 FR
18001,1973).
hi the 25 years since the GAFO
regulations were promulgated, the
poultry industry has changed many of
its production practices. Many changes
to the layer production process have
been instituted to keep manure as dry as
possible. Consequently, the existing
effluent guidelines do not apply to
many broiler and laying hen operations,
despite the fact that chicken production
poses risks to surface water and ground
water quality from improper storage of
dry manure, and improper land
application. It is EPA's understanding
that continuous overflow watering has
been largely discontinued in lieu of
more efficient watering methods (i.e., on
demand watering), and that liquid
manure handling systems represent
perhaps 15 percent of layer operations
overall, although in the South
approximately 40 percent of operations
still have wet manure systems.
Despite the CAFO regulations,
nutrients from large poultry operations
continue to contaminate surface water
and ground water due to rainfall coming
in contact with dry manure that is
stacked in exposed areas, accidental
spills, etc. In addition, land application
remains the primary management
method for significant quantities of
poultry litter (including manure
generated from facilities using "dry"
systems). Many poultry operations are
located on smaller parcels of land in
comparison to other livestock sectors,
oftentimes owning no significant
. cropland or pasture, placing increased
importance on the proper management
of the potentially large amounts of
manure that they generate. EPA also
believes that all types of livestock
operations should be treated equitably
under the revised regulation.
As documented in the Environmental
Impact Assessment, available in the
rulemaking Record, poultry production
in concentrated areas such as in the
Southeast, the Delmarva Peninsula in
the mid-Atlantic, and in key
Midwestern States has been shown to
cause serious water quality
impairments. For example, the
Chesapeake Bay watershed's most
serious water quality problem is caused
by the overabundance of nutrients (e.g.
nitrogen and phosphorus). EPA's
Chesapeake Bay Program Office
estimates that poultry manure is the
largest source of excess nitrogen and
phosphorous reaching the Chesapeake
Bay from the lower Eastern Shore of
Maryland and Virginia, sending more
than four times as much nitrogen into
the Bay as leaky septic tanks and runoff
from developed areas, and more than
three times as much phosphorus as
sewage treatment plants. These
discharges of nutrients result from an
over-abundance of manure relative to
land available for application, as well as
the management practices required to
deal with the excess manure. The State
of Maryland has identified instances
where piles of chicken litter have been
stored near ditches and creeks that feed
tributaries of the Bay. Soil data also
suggest that in some Maryland counties
with poultry production the soils
already contain 90 percent or more of
- the phosphorus needed by crops. The
State of Maryland has surveyed the
Pocomoke, Transquaking, and Manokin
river systems and has "concluded that
70-87 percent of all nutrients reaching
those waters came from farms (though
not all from AFOs). Based on EPA data,
phosphorus concentrations in the
Pocomoke Sound have increased more
than 25 percent since 1985, suffocating
sea grasses that serve as vital habitat for
fish and crabs. In 1997, poultry
operations were found to be a
contributing cause of Pfiesteria
outbreaks in the Pokomoke River and
Kings Creek (both in Maryland) and in
the Chesapeake Bay, in which tens of
thousands of fish were killed. Other
examples of impacts from poultry
manure are discussed in section V of
today's proposal.
Dry manure handling is the
predominant practice in the broiler and
other meat type chicken industries.
Birds are housed on dirt or concrete
floors that have been covered with a
bedding material such as wood
shavings. Manure becomes mixed with
this bedding to fornl a litter, which is
removed from the house in two ways.
After each flock of birds is removed
from the house a portion of litter,
referred to as cake, is removed. Cake is
litter that has become clumped, usually
below the watering system, although it
can also be formed by a concentration
of manure. In addition, the operator also
removes all of the litter from the house
periodically. The frequency of the
"whole house" clean-out varies but
commonly occurs once each year,
unless a breach of biosecurity is
suspected.
Broiler operations generally house
between five and six flocks of birds each
year, which means there are between
five or six "cake-outs" each year.
Roasters have fewer flocks, and small
fryers have more flocks, but the volume
of "cake-out" removed in a year is
comparable. "Cake-outs" will
sometimes occur during periods when it
is not possible to land apply the litter
(e.g. in the middle of the growing season
or during the winter when field
conditions may not be conducive to
land application). Consequently, it is
usually necessary to store the dry litter
after removal until it can be land
applied.
Depending on the time of year it
occurs, "whole house" clean-out may ,
also require the operator to store the dry
manure until it can be land applied. If
the manure is stored in open stockpiles
over long periods of time, usually
greater than a few weeks, runoff from
the stockpile may contribute pollutants
to surface water and/or ground water
that is hydrologically connected to .
surface water.
The majority of egg laying operations
use dry manure handling, although <
there are operations with liquid manure
handling systems. Laying hens are kept
in cages and manure drops below the
cages in both dry and liquid manure
handling systems. Most of the dry
manure operations are constructed as
high rise houses where the birds are
kept on the second floor and the manure
drops to the first floor, which is
sometimes referred to as the pit.
Ventilation flows through the house
from the roof down over the birds and
into the pit over the manure before it is
forced out through the sides of the
house. The ventilation dries the manure
as it piles up into cones. Manure can
usually be stored in high rise houses for
up to a year before requiring removal.
Problems can occur with dry manure
storage in a high rise house when
drinking water systems are not properly
designed or maintained. 'For example,
improper design or maintenance of the
water system can result in excess water
spilling into the pit below, which raises
the moisture content of the manure,
resulting in the potential for spills and
releases of manure from the building.
Concerns with inadequate storage or
improper design and maintenance
contribute to concerns over dry manure
systems for laying hens. As with broiler
operations, open stockpiles of litter
stored over long periods of time (e.g.,
greater than a few weeks) may
contribute to pollutant discharge from
contaminated runoff and leachate
leaving the stockpile. Laying hens
operations may also use a liquid manure
handling system. The system is similar
to the dry manure system except that
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the manure drops below the cages into
a channel or shallow pit and water is
used to flush this manure to a lagoon.
The existing regulation already
applies to laying hen and broiler
operations with 100,000 birds when a
continuous flow watering system is
used, and to 30,000 birds when a liquid
manure handling system is used. In
revising the threshold for poultry
operations, EPA evaluated several
methods for equating poultry to the
existing definition of an animal unit.
EPA considered laying hens, pullets,
broilers, and roasters separately to
reflect the differences in size, age,
production, feeding practices, housing,
waste management, manure generation,
and nutrient content of the manure.
Manure generation and pollutant
parameters considered include:
nitrogen, phosphorus, BODS, volatile
solids, and COD. Analysis of these
parameters consistently results in a
threshold of 70,000 to 140,000 birds as
being equivalent to 1,000 animal units.
EPA also considered a liveweight basis
for defining poultry. The liveweight
definition "of animal unit as used by
USDA defines 455,000 broilers and
pullets and 250,000 layers as being
representative of 1,000 animal units.
EPA data indicates that using a
liveweight basis at 1,000 AU would
exclude virtually all broiler operations
from the regulation.
Consultations with industry indicated
EPA should evaluate the different sizes
(ages) and purposes (eggs versus meat)
of chickens separately. However, when
evaluating broilers, roasters, and other
meat-type chickens, EPA concluded that
a given number of birds capacity
represented the same net annual
production of litter and nutrients. For*
example, a farm producing primarily
broilers would raise birds for 6-8 weeks
with a final weight of 3 to 5 pounds, a
farm producing roasters would raise
birds for 9-11 weeks with a final weight
of 6 to 8 pounds, whereas a farm
producing game hens may only keep
birds for 4-6 weeks and at a final weight
of less than 2 pounds. The housing,
production practices, waste
management, and manure nutrients and
process wastes generated in each case is
essentially the same. Layers are
typically fed less*than broilers of
equivalent size, and are generally
maintained as a smaller chicken.
However, a laying hen is likely to be
kept for a year of egg production. The
layer is then sold or molted for several
weeks, followed by a second period of
egg production. Pullets are housed until
laying age of approximately 18 to 22
weeks. In all cases manure nutrients and
litter generated results in a threshold of
80,000 to 130,000 birds as being the
equivalent of 1,000 animal units.
Today's proposed NPDES and effluent
•guidelines requirements for poultry
eliminate the distinction between how
manure is handled and the type of
watering system that is used. EPA is
proposing this change because it
believes there is a need to control
poultry operations regardless of the
manure handling or watering system.
EPA believes that improper storage as
well as land application rates which
exceed agricultural use have contributed
to water, quality problems, especially in
areas with large concentrations of
poultry production. Inclusion of poultry
operations in the proposed NPDES
regulation is intended to be consistent
with the proposed effluent guidelines
regulation, discussed in section VIII of
today's preamble. EPA is proposing that
100,000 laying hens or broilers be
considered the equivalent of 1,000
animal units.
Consequently EPA proposes to
establish the threshold under the two-
tier alternative structure that defines
which operations are CAFOs at 500
animal units as equivalent to 50,000
birds. Facilities that are subject to
designation are those with fewer than
50,000 birds. This threshold would
address approximately 10 percent of all
chicken AFOs nationally and more than
70 percent of all manure generated by
chickens. On a sector specific basis, this
threshold would address approximately
28 percent of all broiler operations
(including'all meat-type chickens) while
addressing more than 70 percent of
manure generated by broiler operations.
For layers (including pullets) the .
threshold would address less than 5
percent of layer operations while
addressing nearly 80 .percent of manure
generated by layer operations. EPA
believes this threshold is consistent
with the threshold established for the
other livestock sectors.
Under this two-tier structure, today's
proposed changes exclude poultry
operations with liquid manure handling
systems if they have between 30,000
and 49,999 birds. EPA estimates this to
be few if any operations nationally and
believes these are relatively small
operations. EPA does not believe these
few operations pose a significant threat
to water quality even in aggregation.
EPA also notes that the trend in laying
hen operations (where liquid systems
may occur) has been to build new
operations to house large numbers of
animals (e.g., usually in excess of
100,000 birds per house), which
frequently employ dry manure handling
systems. Given the limited number of
existing operations with liquid manure
handling systems and the continuing
trend toward larger operations, EPA
believes the proposed uniform threshold
of 50,000 birds is appropriate.
Under the proposed alternative three-
tier structure, any operation with more
than 100,000 chickens is automatically
defined as a CAFO. This upper tier
reflects 4 percent of all chicken
operations. Additionally those poultry
operations with 30,000 to 100,000
chickens are defined as CAFOs-if they
meet the unacceptable conditions
presented in section VII.C. This middle
tier would address an additional 10
percent of poultry facilities. By sector
this middle tier would potentially cover
an additional 45 percent of broiler
manure and 22 percent layer manure. In
aggregate this scenario would address
14 percent of chicken operations and 86
percent of manure. See VI.A.2 for the
additional information regarding scope
of the two proposed regulatory
alternatives.
EPA acknowledges that this threshold
pulls in a substantial number of chicken
operations under the definition of a
CAFO. Geographic regions with high
density of poultry production have
experienced water quality problems
related to an overabundance of
nutrients, to which the poultry industry
has contributed. For example
northwestern Arkansas and the
Delmarva peninsula in the Mid-Atlantic
tend to have smaller poultry farms as
compared to other regions. The chicken
and turkey sectors also have higher
percentages of operations with
insufficient or no land under the control
of the AFO on which to apply manure.
Thus EPA believes this threshold is
appropriate to adequately control the
potential for discharges from poultry
CAFOs.
g. How Would Immature Animals in
the Swine and Dairy Sectors be
Counted? EPA is proposing to include
immature swine and heifer operations
under the CAFO definition. See
proposed § 122.23(a)(3)(i)(C) and (E). In
the proposed two-tier structure, EPA
would establish the 500 AU threshold
equivalent for defining which
operations are CAFOs as operations
with 5000 or more swine weighing 55
pounds or less, and those with fewer
than 5000 swine under 55 pounds are
AFOs which may be designated as
CAFOs. Immature dairy cows, or
heifers, would be counted equivalent to
beef cattle; that is, the 500 AU threshold
equivalent for defining CAFOs would be
operations with 500 or more heifers, and
those with fewer than 500 could be
designated as CAFOs.
In the proposed three-tier structure,
the 300 AU and 1,000 AU equivalents,
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3013
respectively for each animal type would
be: 3,000 head and 10,000 head for
immature'swine; and 300 head and
1,000 head for heifers.
Only swine over 55 pounds and
mature dairy cows are specifically
included in the current definition
(although manure and wastewater
generated by immature animals
confined at the same operation with
mature animals are subject to the
existing requirements). Immature
animals were not a concern in the past
because they were generally part of
operations that included mature animals
and, therefore, their manure was
included in the permit requirements of
the CAFO. However, in recent years,
these livestock industries have become
increasingly specialized with the
emergence of increasing numbers of
large stand-alone nurseries. Further,
manure from immature animals tends to
have higher concentrations of pathogens
and hormones and thus poses greater
risks to the environment and human
health.
Since the 1970s, the animal feeding
industry has become more specialized,
' especially at larger operations. When
the CAFO regulations were issued, it -
Was typical to house swine from birth to
slaughter together at the same operation
known as a farrow to finish operation.
Although more than half of swine
production continues to occur at farrow-
to-finish operations, today it is common
for swine to be raised in phased
production systems. As described in
section VI, specialized operations that
only house sows and piglets until
weaned represent the first phase, called
farrowing. The weaned piglets are
transferred to a nursery, either at a
separate building or at a location remote
from the farrowing operation for
biosecurity concerns. The nursery
houses the piglets until they reach about
55 to 60 pounds, at which time they are
transferred to another site, the grow-
finish facility.
The proposed thresholds for swine are
established on the basis of the average
phosphorus excreted from immature
swine in comparison to the average
phosphorus excreted from swine over
55 pounds. A similar threshold would
be obtained when evaluating live-weight
manure generation, nitrogen, COD and
volatile solids (VS). See the Technical
Development Document for more
. details.
Barries often remove immature heifers
to a separate location until they reach
maturity. These off-site operations may
confine the heifers in a manner that is
very similar to a beef feedlot or the
heifers maybe placed on pasture. The
existing CAFO definition does not
address operations that only confine
immature heifers. EPA acknowledges
that dairies may keep heifers and calves
and a few bulls on site. EPA data
indicates some of these animals are in
confinement, some are pastured, and
some moved back and forth between
confinement, open lots, and pasture.
The current CAFO definition considers
only the mature milking cows. This has
raised some concerns that many dairies
with significant numbers of immature
animals could be excluded from the
regulatory definition even though they
may generate as much manure as a dairy
with a milking herd large enough to be
a CAFO. The proportion of immature
animals maintained at dairies can vary
significantly with a high being a one to
one ratio. Industry-wide there are 0.6
immature animals for every milking
cow.
EPA considered options for dairies
that would take into account all animals-
maintained in confinement, including
calves, bulls and heifers when
determining whether a dairy is a CAFO
or not. EPA examined two approaches
for this option, one that Would count all
animals equally and another based on
the proportion of heifers, calves, and
bulls likely to be present at the dairy*
EPA is hot proposing to adopt either of
these options.
The milking herd is usually a constant
at a dairy, but the proportion of
immature animals can vary substantially
among dairies and even.at a given dairy
over time. Some operations maintain
their immature animals on-site, but keep
them on pasture most of the time. Some
operations keep immature animals on-
site, and maintain them in confinement
all or most of the time. Some operations
may also have one or two bulls on-site,
which can also be kept either in
confinement or on pasture, while many
keep none on-site. Some operations do
not keep their immature animals on-site
at all, instead they place them offsite,
usually in a stand-alone heifer
operation. Because of the variety of
practices at dairies, it becomes very
difficult to estimate how many
operations have immature animals on-
site in confinement. EPA believes that
basing the applicability on the numbers
of immature animals and bulls would
make implementing the regulation more
difficult for the permit authority and the
CAFO operator. However, EPA requests
comment on this as a possible approach.
EPA also requests comments on using
only mature milking cows as the means
for determining applicability of the size
thresholds. Under the two-tier structure,
EPA's proposed requirements for dairies
would apply to 3 percent of the dairies
nationally and will control 37 percent of
the CAFO manure generated by all
dairies nationally. This is proportionally
lower than other livestock sectors,
largely due to the dominance of very
small farms in the dairy industry. There,
are similar trends in the dairy industry
as in the other livestock sectors,
indicating that the number of large
operations is increasing while the
number of small farms continues to
decline. Under the three-tier structure,
EPA's proposed requirements would
apply to 6 percent of the dairies
nationally, and will control 43 percent
of all manure generated at dairy CAFOs
annually. See Section VI.A.I.
Inclusion in the proposed NPDES
definition of immature swine and
heifers is intended to be consistent -with '
the proposed effluent guidelines
regulation, described in section VIII of
today's preamble.
P. What Other Animal Sectors Does
Today's Proposal Affect? EPA is
proposing to lower the threshold for
defining which AFOs are CAFOs to the
equivalent of 500 AU in the horse,
sheep, lamb and duck sectors under the
two-tier structure. See proposed
§ 122.23(a)(3)(i). This action is being
taken to be consistent with the NPDES
proposed revisions for beef, dairy, swine
and poultry. Under the three-tier
structure, the existing thresholds would
remain as they are under the existing
regulation. ,
The animal types covered by the
NPDES program are defined in the
current regulation (Part 122 Appendix
B). The beef, dairy, swine, poultry and
veal sectors are being addressed by both
today's effluent guidelines proposal and
today's NPDES proposal. However,
today's proposal would not revise the
effluent guidelines for any animal sector
other than beef, dairy, swine, poultry
and veal. Therefore, under today's
proposal, any facility in the horse,
sheep, lamb and duck sectors with 500
to 1,000 AU that is defined as a CAFO,
and any facility in any sector below 500
AU that is designated as, a CAFO, will
not be subject to the effluent guidelines,
but will have NPDES permits developed
on a best professional judgment (BPJ)
basis.
Table 7-6 identifies those meeting the
proposed 500 AU threshold in the two-
tier structure. Table 7—7 identifies the
numbers of animals meeting the 300
AU, 300 AU to 1,000 AU, and the 1,000
AU thresholds in the three-tier
structure.
.A facility confining any other animal
type that is not explicitly mentioned in
the NPDES and effluent guidelines
regulations is still subject to NPDES
permitting requirements if it meets the
' definition of an AFO and if the permit
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authority designates it as a CAFO on the
basis that it is a significant contributor
of pollution to waters of the U.S. Refer
to VH.C.4 in today's proposal for a
discussion of designation for AFOs.
The economic analysis for the NPDES
rule does not cover animal types other
than beef, dairy, swine and poultry. EPA
chose to analyze those animal types that
produce the greatest amount of manure
and wastewater in the aggregate while
in confinement. EPA believes that most
horses, sheep, and lambs.operations are
not confined and therefore will not be
subject to permitting, thus, the Agency
expects the impacts in these sectors to
be minimal. However, most duck
operations probably are confined. EPA .
requests comments on the effect of this
Sroposal on the horse, sheep, lamb and
uck sectors.
i. How Does EPA Propose to Control
Manure at Operations that Cease to be
CAFOs? EPA is proposing to require
operators of permitted CAFOs that cease
operations to retain NPDES permits
until the facilities are properly closed,
i.e., no longer have the potential to
discharge. See § 122.23(i)(3). Similarly,
today's proposal would clarify that, if a
facility ceases to be an active CAFO
(e.g., it decreases the number of animals
>below the threshold-that defined it as a
CAFO, or ceases to operate), the CAFO
must remain permitted until all wastes
at the facility that were generated while
the facility was a CAFO no longer have
the potential to reach waters of the
United States.
These requirements mean that if a
permit is about to expire and the
manure storage facility has not yet been
properly closed, the facility would be
required to apply for a permit renewal
because the facility has the potential to
discharge to waters of the U.S. until it
is properly closed. Proper facility
closure includes removal of water from
lagoons and stockpiles, and proper
disposal of wastes, which may include
land application of manure and
wastewater in accordance with NPDES
permit requirements, to prevent or
minimize discharge of pollutants to
receiving waters.
The existing regulations do not
explicitly address whether a permit •
should be allowed to expire when an
owner or operator ceases operations.
However, the public has expressed
concerns about facilities that go out of
business leaving behind lagoons,
stockpiles and other contaminants
unattended and unmanaged. Moreover,
there are a number of documented
instances of spills and breaches at
CAFOs that have ceased operations,
leaving behind environmental problems
that became a public burden to resolve
(see, for example, report of the North
Carolina DENR, 1999).
EPA considered five options for
NPDES permit requirements to ensure
that CAFO operators provide assurances
for. proper closure of their facilities
(especially manure management
systems such as lagoons) in the event of
financial failure or other business
curtailment. EPA examined the costs to
the industry and the complexity of
administering such a program for all
options. The analyses of these options
are detailed in the EPA NPDES CAFO
Rulemaking Support Document,
September 26, 2000.
Closure Option 1 would require a
closure plan. The CAFO operator would
be required to have a written closure
plan detailing how the facility plans to
dispose of animal waste from manure
management facilities. The plan would
be submitted with the permit
application and be approved with the
permit application. The plan would
identify the steps necessary to perform
final closure of the facility, including at
least:
• A description of how each major
component of the manure management
facility (e.g., lagoons, settlement basins,
storage sheds) will be closed;
• An estimate of the maximum'
inventory of animal waste ever on-site,
accompanied with a description of how
the waste will be removed, transported,
land applied or otherwise disposed; and
», A closure schedule for each
component of the facility along with a
description of other activities necessary
during closure (e.g., control run-off/run-
on, ground water monitoring if
necessary).
EPA also investigated several options
that would provide financial assurances
in the event the CAFO went out of
business, such as contribution to a
sinking fund, commercial insurance,
surety bond, and other common
commercial mechanisms. Under Closure
Option 2, permittees would have to
contribute to a sinking fund to cover
closure costs of facilities which abandon
their manure management systems. The
contribution could be on a per-head
basis, and could be levied on the
permitting cycle (every five years), or
annually. The sinking fund would be •
available to cleanup any abandoned
facility (including those which are not
permitted). Data on lagoon closures in
North Carolina (Harrison, 1999) indicate
that the average cost of lagoon closure
for which data are available is
approximately $42,000. Assuming a
levy of $0.10 per animal, the sinking
fund would cover the cost of
approximately 50 abandonments
nationally per year, not accounting for
any administrative costs associated with
operating the funding program.
Closure Option 3 would require
permittees to provide financial
assurance by one of several generally
accepted mechanisms. Financial
assurance options could include the
following common mechanisms: a)
Commercial insurance; (b) Financial
test; (c) Guarantee; (d) Certificate of
Deposit or designated savings account;
(e) Letter of credit; or (f) Surety bond.
The actual cost to the permittee would
depend upon which financial assurance
option was available and implemented.
The financial test would likely be the
least expensive for some operations,'
entailing documentation that the net
worth of the CAFO operator is sufficient
such that it is unlikely that the facility
will be abandoned for financial reasons.
The guarantee would also be
inexpensive, consisting of a legal
guarantee from a parent corporation or
other party (integrator) that has
sufficient levels of net worth. The surety
bond would likely be the most
expensive, typically requiring an annual
premium of 0.5 to 3.0 percent of the
value of the bond; this mechanism
would likely be a last resort for facilities
that could not meet the requirement of
the other mechanisms.
Option 4 is a combination of Options
2 and 3. Permittees would have to
provide financial assurance by one of
several generally accepted mechanisms,
or by participating in a sinking fund.
CAFO operators could meet closure
requirements through the most
economical means available for their
operation.
Option 5, the preferred option in
today's proposal, simply requires
CAFOs to maintain NPDES permit
coverage until proper closure. Under
this option, facilities would be required
to maintain their NPDES permits, even
upon curtailment of the animal feeding
operation, for as long as the facility has
the potential to discharge. The costs for
this option would be those costs
associated with maintaining a permit.
Today, EPA is proposing to require
NPDES permits to include a condition
that imposes a duty to reapply for a
permit unless an owner or operator has
closed the facility such that there is no
potential for discharges. The NPDES
program offers legal and financial
sanctions that are sufficient, in EPA's
view, to ensure that operators comply
with this requirement. EPA believes that
this option would accomplish its
objectives and would be generally easy
and effective to implement. However,
there are concerns that it would not be .
effective for abandoned facilities
because, unlike some of the other
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3015
options, no financial assurance
mechanism would be in place. EPA is
requesting comment on the practical
means of addressing the problem of
unmanaged waste from closed or
abandoned CAFOs, and what authorities
EPA could use under the CWA or other
statutes to address this problem.
See Section VII.E.S.c of today's
proposal, which further discusses the
requirement for permit authorities to
include facility closure hi NPDES
permit special conditions.
While EPA is today proposing to only
require ongoing permit coverage of the
former CAFO, permit authorities are
encouraged to consider including other
conditions such as those discussed
above.
j. Applicability of the Regulations to
Operations That. Have a Direct
Hydrologic Connection to Ground
Water. Because of its relevance to
today's proposal, EPA is restating that
the Agency interprets the Clean Water
Act to apply to discharges of pollutants
from a point source via ground water
that has a direct hydrologic connection
to surface water. See proposed
§ 122.23(e). Specifically, the Agency is
proposing that all CAFOs, including
those that discharge or have the
potential to discharge CAFO wastes to
navigable waters via ground water with
a direct hydrologic connection must
apply for an NPDES permit. In addition,
the proposed effluent guidelines will
require some CAFOs to achieve zero
discharge from their production areas
including via ground water which has a
direct hydrologic connection to surface
water. Further, for CAFOs not subject to
such an effluent guideline, permit
writers would in some circumstances be
required to establish special conditions
to address such discharges. In all cases,
a permittee would have the opportunity
to provide a hydrologist's report to rebut
the presumption that there is likely to
be a discharge from the production area
to surface waters via ground water with
a direct hydrologic connection.
For CAFOs that would be subject to
an effluent guideline that includes
requirements for zero discharge from the
production area to surface water via
ground water (all existing and new beef
and dairy operations, and new swine
and poultry operations, see proposed
§412.33(a), 412.35(a), and 412.45(a)),
the proposed regulations would
presume that there is a direct hydrologic
connection to surface water. The
permittee would be required to either
achieve zero discharge from the
production area via ground water and
perform the required ground water
monitoring or provide a hydrologist's
statement that there is no direct
connection of ground water to surface
water at the facility. See 40 CFR
412.33(a)(3), 412.35(a)(3), and
412.45(a)(3).
For CAFOs that would be subject to
the proposed effluent guideline at
412.43 (existing swine, poultry and veal
facilities) which does not include
ground water requirements, if the
permit writer determines that the
facility is in an area with topographical
characteristics that indicate the
presence of ground water that is likely
to have a. direct hydrologic connection
to surface water and if the permit writer
determines that pollutants may be
discharged at a level which may cause
or contribute to an excursion above any
State water quality standard, the permit
writer would be required to include
special conditions to address potential
discharges via ground water. EPA is
proposing that the permittee must either
comply with those conditions or,
provide a hydrologist's statement that
the facility does not have a direct
hydrologic connection to surface water.
40 CFR 122.23(j)(6) and (k)(5).
If a CAFO is not subject to the Part
412 Subparts C or D effluent guideline
(e.g., because it has been designated as
a CAFO and is below the threshold for
applicability of those subparts; or is a
CAFO in a sector other than beef, dairy,
swine, poultry or veal and thus is
subject to subparts A or B), then the
permit writer would be required to
decide on a case-by-case basis whether
effluent limitations (technology-based
and water quality-based, as necessary)
should be established to address
potential discharges to surface water via
hydrologically connected ground water.
Again, the permittee could avoid or
satisfy such requirements by providing
a hydrologist's statement that there is no
direct hydrologic connection 40 CFR
122.23(k)(5).
Legal Basis. The Clean Water Act does
not directly answer the question of
whether a discharge to surface waters
via hydrologically connected ground
water is unlawful. However, given the
broad construction of the terms of the
CWA by the federal courts and the goals
and purposes of the Act, the Agency
believes that while Congress has not
spoken directly to the issue, the Act is
best interpreted to cover such
discharges. The statutory terms certainly
do not prohibit the Agency's
determination that a discharge to
surface waters via hydrologically-
connected ground waters can be
governed by the Act, while the terms do
clearly indicate Congress' broad concern
for the integrity of the Nation's waters.
Section 301(a) of the CWA provides that
"the discharge of any pollutant [from a
point source] by any person shall be
unlawful" without an NPDES permit.
The term "discharge of a pollutant", is
defined as "any addition of a pollutant
to navigable waters from any point
source." 33 U.S.C. § 1362(12). In turn,
"navigable waters" are defined as "the
waters of the United States, including
the territorial seas." 33 U.S.C. § 1362(7).
None of these terms specifically
includes or excludes regulation of a
discharge to surface waters via
hydrologically connected ground
waters. Thus, EPA interprets the
relevant terms and definitions in the
Clean Water Act to subject the addition
of manure to nearby surface waters from
a CAFO via hydrologically connected
ground waters to regulation.
Some sections of the CWA do directly
apply to ground water. Section 102 of
the CWA, for example, requires the
Administrator to "develop
comprehensive programs for preventing,
reducing, or eliminating the pollution of
. the navigable waters and ground waters
and improving the sanitary conditions
of surface and underground waters." 33
U.S.C. § 1252. Such references,
however, are not significant to the
analysis of whether Congress has
spoken directly on the issue of
regulating discharges via ground water
which directly affect surface waters.
Specific references to ground water in
other sections of the Act may shed light
on the question of whether Congress
intended the NPDES program to regulate
ground water quality. That question,
however, is riot the same question as
whether Congress intended to protect
surface water from discharges which
occur via ground water. Thus, the
language of the CWA is ambiguous with
respect to the specific question, but does
not bar such regulation. Moreover, the
Supreme Court has recognized
Congress' intent to protect aquatic
ecosystems through the-broad federal
authority to control pollution embodied
in the Federal Water Pollution Control
Act Amendments of 1972. Section 101
of the Act clearly states the purpose of
the Act "to restore and maintain the
chemical, physical, and biological
integrity of the Nations' waters." 33
U.S.C. § 1251(a)(l). The Supreme Court
found that "[t]his objective incorporated
a broad, systemic view of the goal of
maintaining and improving water
quality: as the House Report oh the
legislation put it, "the word "integrity"
* * * refers to a condition in which the
natural structure and function of aquatic
ecosystems [are] maintained." United
States v. Riverside Bayview Homes, 474
U.S. 121,132 (1985). An interpretation
of the CWA which excludes regulation
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of point source discharges to the waters
of the U.S. which occur via ground
water would, therefore, be inconsistent
with the overall Congressional goals
expressed in the statute.
Federal courts have construed the
terms of the GWA broadly (Sierra Club
v. Colorado Refining Co., 838 F. Supp.
1428,1431 (D.Colo. 1993) (citing
Quivera Mining Co. v. EPA, 765 F.2d
126,129 (10th Cir. 1985)), but have
found the language ambiguous with
regard to ground water and generally
examine the legislative history of the
Act. See e.g., Exxon v. Train, 554 F.2d
1310,1326-1329 (reviewing legislative
history). However, a review of the
legislative history also is inconclusive.
Thus, courts addressing the issue have
reached conflicting conclusions.
Since the language of the CWA itself
does not directly address the issue of
discharges to ground water which affect
surface water, it is proper to examine
the statute's legislative history. Faced
with the problem of defining the bounds
of its regulatory authority, "an agency
may appropriately look to the legislative
history and underlying policies of its
statutory grants of authority." Riverside
Bayview Homes, 474 U.S. at 132.
However, the legislative history also
does not address this specific issue. See
Colorado Refining Co., 838 F. Supp. at
1434 n.4 (noting legislative history
inconclusive).
In the House, Representative Les
Aspin proposed an amendment with
explicit ground water protections by
adding to the definition of "discharge of
a pollutant" the phrase "any pollutant
to ground waters from any point
source." Legislative History of the Water
Pollution Control Act Amendments of
1972,93d Cong., 1st. Sess. at 589 (1972)
(hereinafter "Legislative History").
While the Aspin amendment was
defeated, that rejection does not
necessarily signal an explicit decision
by Congress to exclude even ground
water per se from the scope of the
permit program. Commentators have
suggested that provisions in the
amendment which would have deleted
exemptions for oil and gas well
injections were the more likely cause of
the amendment's defeat. Mary Christina
Wood, Regulating Discharges into
Groundwater: The Crucial Link in
Pollution Control Under the Clean
Water Act, 12 Harv. Envtl. L. Rev. 569,
614 (1988); see also Legislative History
at 590-597 (during debate on the
amendment, members in support and
members in opposition focused on the
repeal of the exemption for oil and gas
injection wells).
At the least, there is no evidence that
in rejecting the explicit extension of the
NPDES program to all ground water
Congress intended to create a ground
water loophole through which the
discharges of pollutants could flow,
unregulated, to surface water. Instead,
Congress expressed an understanding of
the hydrologic cycle and an intent to
place liability on those responsible for
discharges which entered the "navigable
waters." The Senate Report stated that
"[w]ater moves in hydrologic cycles and
it is essential that discharge of
pollutants be controlled at the source."
Legislative History at 1495. The Agency
has determined that discharges via
hydrologically connected ground water
impact sin-face waters and, therefore,
should be controlled at the source.
Most of the courts which have
addressed the question of whether the
CWA subjects discharges to surface
waters via hydrologically connected
ground waters to regulation have found
file statute ambiguous on this specific
question. They have then looked to the
legislative history for guidance.
McClellan Ecological Seepage Situation
v. Weinberger, 707 F. Supp. 1182,1194
(E.D. Cal. 1988), vacated (on other
grounds), 47 F.3d 325 (9th Cir. 1995),
cert, denied, 116 S.Ct. 51 (1995); Kelley
v. United States, 618 F.Supp. 1103,
1105-06 (D.C.Mich. 1985). Even those
courts which have not found
jurisdiction have acknowledged that it
is a close question. Village of
Oconomowoc Lake v. Dayton Hudson
Corp., 24 F.3d 962, 966 (7th Cir. 1994),
cert, denied, 513 U.S. 930 (1994). As
one court noted, "the inclusion of
groundwater with a hydrological
connection to surface waters has
troubled courts and generated a torrent
of conflicting commentary." Potter v.
ASARCO, Civ. No. S:56CV555, slip op.
at 19 (D.Neb. Mar. 3,1998). The fact that
courts have reached differing
conclusions when examining whether
the CWA regulates such discharges is
itself evidence that the statute is
ambiguous.
EPA does, not argue that the CWA
directly regulates ground water quality.
In the Agency's view, however, the
CWA does regulate discharges to surface
water which occur via ground water
because of a direct hydrologic
connection between the contaminated
ground water and nearby surface water.
EPA repeatedly has taken the position
that the CWA can regulate discharges to
surface water via ground water that is
hydrologically connected to surface
waters.
For example, in issuing the general
NPDES permit for concentrated animal
feeding operations ("CAFOs") in Idaho,
EPA stated:
"EPA agrees that groundwater
contamination is a concern around
CAFO facilities. However, the Clean
Water Act does not give EPA the
authority to regulate groundwater
quality through NPDES permits.
"The only situation in which
groundwater may be affected by the
NPDES program is when a discharge of
pollutants to surface waters can he
proven to be via groundwater." 62 FR
20177, 20178 (April 25,1997). In
response to a comment 'that the CAFO
general permit should not cover ground
water, the Agency stated:
"EPA agrees that the Clean Water Act
.does not give EPA the authority to
regulate groundwater quality through
NPDES permits. However, the permit
requirements * * * are not intended to
regulate groundwater. Rather, they are
intended to protect surface waters
which are contaminated via a
groundwater (subsurface) connection."
Id.
EPA has made consistent statements
on at least five other occasions. In the
Preamble to the final NPDES Permit
Application Regulations for Storm
Water Discharges, the Agency stated:
"this rulemaking only addresses
discharges to waters of the United
'States, consequently discharges to
ground waters are not covered by this
rulemaking (unless there is. a
hydrological connection between the
ground water and a nearby surface
water body."] 55 FR 47990, 47997 (Nov.
16,1990)(emphasis added)). See also 60
FR 44489, 44493 (August 28,1995) (in
.promulgating proposed draft CAFO
permit, EPA stated: ''[Discharges that
enter surface waters indirectly through
groundwater are prohibited"); EPA,
"Guide Manual On NPDES Regulations
For Concentrated Animal Feeding
Operations" at 3 (December 1995)
("Many discharges of pollutants from a
point source to surface water through
groundwater (that constitutes a direct
hydrologic connection) also may be a
point source discharge to waters of the
United States.").
In promulgating regulations
authorizing the development of water
quality standards under the CWA by
Indian Tribes for their Reservations,
EPA stated: •
Notwithstanding the strong language
in the legislative history of the Clean
Water Act to the effect that the Act does
not grant EPA authority to regulate
pollution of ground waters, EPA and
most courts addressing the issue have
recognized that * * * the Act requires
NPDES permits for discharges to
groundwater where there is a direct
hydrological connection between
groundwater and surface waters. In
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3017
these situations, the affected ground
waters are not considered "waters of the
United States" but discharges to them
are regulated because such discharges
are effectively discharges to the directly
connected surface waters. Amendments
to the Water Quality Standards
Regulations that Pertain to Standards on
Indian Reservations, Final Rule, 56 FR
64876, 64892 (Dec. 12,1991)(emphasis
added).
While some courts have not been
' persuaded that the Agency's
pronouncements on the regulation of
discharges to surface water via ground
water represent a consistent Agency
position, others have found EPA's
'. position to be clear. The Hecla Mining
court noted that "The court in
Oconomowoc Lake dismissed the EPA
statements as a collateral reference to a
: problem. It appears to this court,
however, that the preamble explains
EPA's policy to require NPDES permits
for discharges which may enter surface
water via groundwater, as well as those
that enter directly." Washington
Wilderness Coalition v. Hecla Mining
Co., 870 F. Supp. 983, 990-91 (E.D.
Wash. 1994), dismissed on other
grounds, (lack of standing) per
unpublished decision (E.D. Wash. May
7,1997) (citing Preamble, NPDES Permit
Regulations for Storm Water Discharges,
55 FR 47990, 47997 (Nov. 16,1990)).
As a legal and factual matter, EPA has
made a determination that, in general,
collected or channeled pollutants
conveyed to surface waters via ground
water can constitute a discharge subject
to the Clean Water Act. The
determination of whether a particular
discharge to surface waters via ground
water which has a direct hydrologic
connection is a discharge which is
prohibited without an NPDES permit is
a factual inquiry, like all point source
. determinations. The time and distance
by which a point source discharge is
connected to surface waters via
hydrologically connected surface waters
will be affected by many site specific
factors, such as geology, flow, and slope.
Therefore, EPA is not proposing to
establish any specific criteria beyond
confining the scope of the regulation to
discharges to surface water; via a
"direct" hydrologic connection. Thus,
EPA is proposing to make clear that a
general hydrologic connection between
all waters is not sufficient to subject the
owner or operator of a point source to
liability under the Clean Water Act.
Instead, consistent with the case law,
there must be information indicating
that there is a "direct" hydrologic
connection to the surface water at issue.
Hecla Mining, 870 F.Supp. at 990
("Plaintiffs must still demonstrate that
pollutants from a point source affect
surface waters of the United States. It is
not sufficient to allege groundwater
pollution, and then to assert a general
hydrological connection between all
waters. Rather, pollutants must be
traced from their source to surface
waters, in order to come within the
purview of the CWA.")
The reasonableness of the Agency's
interpretation is supported by the fact
that the majority of courts have
determined that CWA jurisdiction may
extend to surface water discharges via
hydrologic connections.1 As the court in
1 See e.g., Williams Pipeline Co. v. Bayer Corp.,
964 F.Supp. 1300,1319-20 (SJD.Iowa 1997)
("Because the CWA's goal is to protect the quality
of surface waters, the NPDES permit system
regulates any pollutants that enter such waters
either directly or through groundwater.");
Washington Wilderness Coalition v. Hecla Mining
Co., 870 F. Supp. 983,989-90 (E.D. Wash. 1994),
dismissed on other grounds, (lack of standing) per
unpublished decision (E.D. Wash. May 7,1997)
(finding CWA jurisdiction where pollution
discharged from mamnade ponds via seeps into soil
and ground water and, thereafter, surface waters;
and holding that, although CWA does not regulate
isolated ground water, CWA does regulate
pollutants entering navigable waters via tributary
ground waters); Friends of the Coast Forkv. Co. of
Lane, OR, Civ. No. 95-6105-TC (D. OR. January 31,
1997) (reaching same conclusion as court in
Washington Wilderness Coalition v. Hecla Mining
Co., and finding hydrologically-connected ground
waters are covered by the CWA); McCIellan
Ecological Seepage Situation, 763 F. Supp. 431,438
(E.D. Cal. 1989), cacated (on other grounds), 47 F.3d
325 (9th Cir. 1995), cert, denied, 116 S.CL 51 (1995)
(allowing plaintiff to attempt to prove at trial that
pollutants discharged to ground water are
subsequently discharged to surface water); and
McCIellan Ecological Seepage Situation v.
Weinberger, 707 F. Supp. 1182,1195-96 (E.D. Cal.
1988), vacated (on other'grounds), 47 F.3d 325 (9th
Cir. 1995), cert, denied, 116 S.Ct.51 (1995)
(although NPDES permit not required for discharges
to isolated ground water, Congress' intent to protect
surface water may require NPDES permits for
discharges to ground water with direct hydrological
connection to surface waters); Friends ofSanteFe
Co. v. LAC Minerals, Inc., 892 F. Supp. 1333,1357-
58 (D.N.M. 1995) (although CWA does not cover
discharges to isolated, nontributary groundwater,
Quivira and decisions within Tenth Circuit
demonstrating expansive construction of CWA's
jurisdictional reach foreclose arguments that CWA
does not regulate discharges to hydrologically-
connected groundwater); Sierra club v. Colorado
Refining Co., 838 F. Supp. at 1434 ("navigable
waters" encompasses tributary groundwater and,
therefore, allegations that defendant violated CWA
by discharging pollutants into soils and
groundwater, and that pollutants infiltrated creek
via groundwater and seeps in creek bank, stated
cause of action); and Quiviia Mining Co. v. United
States EPA, 765 F.2d 126,130 (10th Cir. 1985), cert.
denied, 474 U.S. 1055 (1986) (affirming EPA's
determination that CWA permit required for
discharges of pollutants into surface arroyos that,
during storms, channeled rainwater both directly to
streams and into underground aquifers that
connected with such streams); Martin v. Kansas
Board of Regents, 1991 U.S.Dist. LEXIS 2779
(D.Kan. 1991) ("Groundwater. . . that is naturally
connected to surface waters constitute 'navigable
waters' under the Act."); see also Inland Steel Co.
v. EPA, 901 F.2d 1419,1422-23 (7th Cir. 1990)
("the legal concept of navigable waters might
include ground waters connected to surface
Potter v. ASARCO, Inc. declared, "in
light of judicial precedent, Congress"
remedial purpose, the absence of any
specific legislative intent pertaining to
hydrologically connected ground water
and the informal pronouncements of
EPA, any pollutants that enter navigable
waters, whether directly or indirectly
through a specific hydrological .
connection, are subject to regulation by
the CWA." Slip op. at 26.
The decisions which did not find
authority to regulate such discharges
under the CWA may, for the most part,
be distinguished. In Village of
Oconomowoc Lake v. Dayton Hudson
Corp., the Seventh Circuit held that the
CWA does not regulate ground water
per se. 24 F.3d 962 (7th Cir. 1994), cert.
denied, 513 U.S. 930 (1994). In
Oconomowoc, however, the plaintiff
only alluded to a "possibility" of a
hydrologic connection. 24 F.3d at 965.
In Kelleyv. United States, the district
court held that enforcement authority
under the CWA did not include ground
water contamination. 618 F. Supp. 1103
(W.D. Mich. 1985). The decision is not
well-reasoned, as the Kelley court
merely states—without further
elaboration—that the opinion in Exxon
v. Train, which specifically "expressed
no opinion" on whether the CWA
regulated hydrologically connected
ground waters, and the legislative
history "demonstrate that Congress did
not intend the Clean Water Act to
extend federal regulatory enforcement
authority over groundwater
contamination." Kelley, 618 F. Supp. at
1107 (emphasis added). In Umatilla, the
court concluded that the NPDES
program did not apply to even
hydrologically connected ground water.
962 F.Supp. at 1318. The court reviewed
the legislative history and existing
precedent on the issue, but failed to
distinguish between the regulation of
ground water per se and the regulation
of discharges into waters of the United
States which happen to occur via
ground water. Moreover, the court failed
to give deference to the Agency's
interpretation of the CWA. Id. at 1319
(finding that the Agency interpretations
cited by the plaintiffs failed to articulate
clear regulatory boundaries and were
not sufficiently "comprehensive,
definitive or formal" to deserve
deference, but acknowledging that
"neither the statute nor the legislative
history absolutely prohibits an
interpretation that the NPDES
requirement applies to discharges of
waters—though whether it does or not is an
unresolved question. * * * [A] well that ended in
such connected ground waters might be within the
scope of the [CWA]").
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pollutants to hydrologically-connected
groundwater"). Today's proposal should
provide the type of formal Agency
interpretation that court sought. Two
other decisions have simply adopted the
reasoning of the Umatilla court. United
States v. ConAgra, Inc., Case No. CV 96-
0134-S-LMB (D. Idaho 1997); Allegheny
Environmental Action Coalition v.
Westinghouse, 1998 U.S. Dist. LEXIS
1838 (W.D.Pa. 1998).
The Agency has utilized its expertise
in environmental science and policy to
determine the proper scope of the CWA.
The determination of whether the CWA
regulates discharges to ground waters
connected to surface waters, like the
determination of wetlands jurisdiction,
"ultimately involves an ecological
between surface waters and ground
waters, it should be left in the first
instance to the discretion of the EPA
and the Corps." Town of Norfolk v. U.S.
Army Corps of Engineers, 968 F.2d
1438,1451 (1st Cir. 1992) (citing United
States v. Riverside BayviewHomes, Inc.,
474 U.S. at 134). The Supreme Court,
too, has acknowledged the difficulty of
determining precisely where Clean
Water Act jurisdiction lies and has held
that an agency's scientific judgment can
support a legal jurisdictional judgment.
United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121,134 (1985)
("In view of the breadth of federal
regulatory authority contemplated by
the [Clean Water] Act itself and the
inherent difficulties of defining precise
bounds to regulable waters, the Corps'
ecological judgment about the
relationship between waters and their
adjacent wetlands provides an adequate
basis for a legal judgment that adjacent
wetlands may be defined as waters
under the Act.").
The Agency has made clear the
rationale for its construction: "the Act
requires NPDES permits for discharges
to groundwater where there is a direct
hydrological connection between
groundwater and surface waters. In
these situations, the affected ground
waters are not considered 'waters of the
United States' but discharges to them
are regulated because such discharges
are effectively discharges to the directly
connected surface waters."
Amendments to the Water Quality
Standards Regulations that Pertain to
Standards on Indian Reservations, Final
Rule, 56 FR 64,876, 64892 (Dec. 12,
1991) (emphasis added). The Agency
has taken this position because ground
water and surface water are highly
interdependent components of the
hydrologic cycle. The hydrologic cycle
refers to "the circulation of water among
soil, ground water, surface water, and
the atmosphere." U.S. Environmental
Protection Agency, "A Review of
Methods for Assessing Nonpoint Source
Contaminated Ground-Water Discharge
to Surface Water" at 3 (April 1991).
Thus, a hydrologic connection has been
defined as "the interflow and exchange
between surface impoundments and
surface water through an underground
corridor or groundwater." NPDES
General Permit and Reporting
Requirements for Discharges from
Concentrated Animal Feeding
Operations, EPA Region 6 Public Notice
of Final Permitting Decision, 58 FR
7610, 7635-36 (Feb. 8,1993). The
determination of whether a discharge to
ground water in a specific case
constitutes an illegal discharge to waters
of the U.S. if unpermitted is a fact
specific one. The general jurisdictional
determination by EPA that such
discharges can be subject to regulation
under the CWA is a determination that
involves an ecological judgment about
the relationship between surface waters
and ground waters.
Finally, the Supreme Court has
explicitly acknowledged that resolution
of ambiguities in agency-administered
statutes involves policymaking: "As
Chevron itself illustrates the resolution
of ambiguity in a statutory text is often
more a question of policy than of law.
* * * When Congress, through express
delegation or the introduction of an
interpretive gap in the statutory
structure, has delegated policymaking to
an administrative agency, the extent of
judicial review of the agency's policy
determinations is limited." Paulyv.
Bethenergy Mines, Inc., 116 S.Ct. 2524,
2534 (1991). Congress established a goal
for the CWA "to restore and maintain
the chemical, physical and biological
integrity of the nation's waters and to
eliminate the discharge of pollutants
into the navigable waters." 33 U.S.C.
§ 1251(a)(l). Congress also established
some parameters for reaching that goal,
but left gaps in the statutory structure.
One of those gaps is the issue of
discharges of pollutants from point
sources which harm navigable waters
but which happen to occur via ground
water. The Agency has chosen to fill
that gap by construing the statute to
regulate such discharges as point source
discharges. Given the Agency's
knowledge of the hydrologic cycle and
aquatic ecosystems, the Agency has
determined that when it is reasonably
likely that such discharges will reach
surface waters, the goals of the CWA can
only be fulfilled if those discharges are
regulated.
Determining Direct Hydrologic
Connection. In recent rulemakings, EPA
has used various lithologic settings to
describe areas of vulnerability to
contamination of ground water. This
information can serve as a guide for
permit writers to make the initial
determination whether or not it is
necessary to establish special conditions
in a CAFO permit to prevent the
discharge of CAFO waste to surface
water via ground water with a direct
hydrologic connection to surface water.
During the rulemaking processes for
the development of the Ground Water
Rule and the Underground Injection
Control Class V under the Safe Drinking
Water Act, significant stakeholder and
Federal Advisory Committee Act
(FACA), input was used to define
lithologic settings that are likely to
indicate ground water areas sensitive to
contamination. Areas likely to have
such a connection are those that have
ground water sensitive to contamination
and that have a likely connection to
surface water. The Ground Water
Proposed Rule includes language that
describes certain types of lithologic
settings (karst, fractured bedrock, and
gravel) as sensitive to contamination
and, therefore, subject to requirements
under the rule to mitigate threats to
human health from microbial
pathogens. [See National Primary
Drinking Water Regulations: Ground
Water Rule, 65 FR 30193 (2000) (to be
codified at 40 CFR Parts 141 and 142),
(proposed May 10, 2000). See also
Underground Injection Control
Regulations for Class V Injection Wells,
Revision; Final Rule, 64 FR 68546 (Dec.
7,1999) (to be codified at 40 CFR Parts
9, 144, 145, and 146). See also Executive
Summary, NDWAC UlC/Source Water
Program Integration Working Group
Meeting (March 25-26, 1999). All are
available in the rulemaking Record.]
Under the Class V rule, a facility must
comply with the mandates of the
regulation if the facility has a motor
vehicle waste disposal well (a type of
Class V well) that is in an area that has
been determined to be sensitive. (See
Technical Assistance Document (TAD)
for Delineating "Other Sensitive Ground
Water Areas", EPA #816-R-00-016—to
be published.) States that are
responsible for implementing the Class
V Rule, or in the case of Direct
Implementation Programs, the EPA
Regional Office, are given flexibility to
make determinations of ground water
sensitivity within certain guidelines.
40 CFR 145.23(f)(12) provides items
that States are expected to consider in
developing their other sensitive ground
water area plan, including:
• Geologic and hydrogeologic
settings,
• Ground water flow and occurrence,
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3019
. • Topographic and geographic
features,
• Depth to ground water,
• * Significance as a drinking water
source,
• *Prevailing land use practices, and
• *Any other existing information
relating to the susceptibility of ground
water to contamination from Class V
injection wells.
*The last three factors are not relevant to
this rulemaking but are specific to mandates
under the Safe Drinking Water Act to protect
current and future sources of drinking water.
Geologic and hydrogeologic settings
considered sensitive under the Class V
Rule include areas such as karst,
fractured bedrock or other shallow/
unconsolidated aquifers. The Class V
Rule lists karst, fractured volcanics and
unconsolidated sedimentary aquifers,
such as glacial outwash deposits and
eolian sands, as examples of aquifer
types. Under the Class V Rule, EPA
urges States to consider all aquifer types
that, based on their inherent
characteristics, are likely to be
moderately to highly sensitive. Such
Aquifer types are those that potentially-
have high permeability, such as: all
fractured aquifers; all porous media
aquifers with a grain size of sand or
larger, including not only
unconsolidated aquifers, but sandstone
as well; and karst aquifers.
For more information at the regional
level, information can be found in the
document "Regional Assessment of
Aquifer Vulnerability and Sensitivity in
the Coterminous United States" [EPA/
600/2-91/043] for state maps showing
aquifers and portions of aquifers whose
transmissivity makes them sensitive/
'vulnerable. This document may be
helpful in identifying areas where
existing contaminants are most likely to
spread laterally. State and federal
'geological surveys have numerous
geological maps and technical reports
that can be helpful in the identification
of areas of sensitive aquifers. University
geology and earth science departments
and consulting company reports may
also have helpful information.
Data sources to assist permit writers
in making sensitivity determinations
can be acquired through many sources
as listed above and include federal,
state, and local data. For example, USGS
maps and databases such as the
principal aquifers map, state maps,
other programs where such assessments
may have been completed, such as State
Source Water Assessment Programs
(SWAP), state Class V, or Ground Water
Rule sensitivity determinations.
Another potential approach to
defining areas of ground water
sensitivity would be to define a set of
characteristics which a facility could
determine whether it met by using a set
of national, regional and/or local maps.
For instance, overburden, that is, soil
depth and type, along with depth to
water table, hydrogeologic
characteristics of the surficial aquifer,
and proximity to surface water could be
factors used to define sensitive areas for
likely ground water/surface water
connections. For example, while there is
no consistent definition or agreement as
to what could be considered "shallow,"
a depth to the water table less than, say,
six feet with sandy soils or other
permeable soil type might indicate
ground water vulnerability. Data of this <
nature could be obtained from USDA's
Natural Resource Conservation Service
(NRCS) national soils maps, available
from the NRCS web site
(www.nhq.nrcs.usda.gov/land/index/
soils.html) or from the EPA web site
(www.epa.gov/ostwater/BASINS/
metadata/statsgo.htm\.
Once it is determined that the CAFO
is in a ground water sensitive area,
proximity to a surface water would
indicate a potential for the CAFO to .
discharge to surface water via a direct
hydrological connection with ground
water. Proximity to surface water would
be considered when there is a short
distance from the boundary of the CAFO
to the closest downstream surface water
body. Again, information of this type
could be obtained from USGS
topographic maps or state maps.
USGS Hydrologic Landscape Regions.
Another approach for determining
whether CAFOs in a region are generally
located in areas where surface water is
likely to have hydrological connections
with ground water is by using a set of
maps under development by the U.S.
Geological Survey (USGS). USGS is
developing a national map of
Hydrologic Landscape Regions that
describe watersheds based on their
physical characteristics, such as
topography and lithology. These maps
will, among other things, help to
identify physical features in the
landscape that are important to water
quality such as areas across the country
where the geohydrology is favorable for
ground water interactions with surface
water.
The regions in this map will be
delineated based on hydrologic unit
codes (HUCs) nationwide and do not
provide information at local scales;
however, the maps can provide
supplemental information that describes
physical features within watersheds
where interactions between ground
water and surface water are found.
These areas are the most likely places
where ground water underlying CAFO's
could be discharged to nearby surface
water bodies. While EPA has not fully
assessed how this tool might be used to
determine a CAFO's potential to
discharge an excerpt of the pre-print
report is provided here for purposes of
discussion. The report describing this
tool is anticipated to be published in
Spring 2001 (Wolock, Winter, and
McMahon, in review).
The concept of hydrologic landscapes
is based on the idea that a single, simple
physical feature is the basic building
block of all landscapes. This feature is
termed a fundamental landscape unit
and is defined as an upland adjacent to
a lowland separated by an intervening
steeper slope. Some examples of
hydrologic landscapes are as follows:
• A landscape consisting of narrow
lowlands and uplands separated by high
and steep valley sides, characteristic of
mountainous terrain;
• A landscape consisting of very wide
lowlands separated from much narrower
uplands by steep valley sides,
characteristic of basiri and range
physiography and basins of interior
drainage; or
• A landscape consisting of narrow
lowlands separated from very broad
uplands by valley sides of various
slopes and heights, characteristic of
plateaus and-high plains.
The hydrologic system of a
fundamental landscape unit consists of
the movement of surface water, ground
water, and atmospheric-water exchange.
Surface water movement is controlled
by land-surface slope and surficial
permeability; ground-water flow is a
function of gravitational gradients and
the hydraulic characteristics of the
geologic framework; and atmospheric-
water exchange primarily is determined
by climate (Winter, in review). The
same physical and climate
characteristics control the movement of
water over the surface and through the
subsurface regardless of the geographic
location of the landscapes. For example,
if a landscape has gentle slopes and
low-permeability soils, then surface
runoff will be slow and recharge to
ground water will be limited. In
contrast, if the .soils are permeable in a
region of gentle slopes, then surface
runoff may be limited but ground-water
recharge will be high.
The critical features used to describe
hydrologic landscapes are land-surface
form, geologic texture, and climate.
Land-surface form can be used to
quantify land-surface slopes and relief.
Geologic texture provides estimates of
surficial and deep subsurface
permeability which control infiltration,
the production of overland flow, and
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ground-water flow rates. Climate
characteristics can be used to
approximate available water to surface
and ground-water systems. The
variables used to identify hydrologic
settings were averaged within each of
the 2,244 hydrologic cataloging units
defined by the USGS. This degree of
spatial averaging was coarse enough to
smooth the underlying data but fine
enough to separate regions from each
other.
For example, two Hydrological
Landscape Regions (HLR) that are likely
to have characteristics of ground water
and surface water interactions with
direct relevance to this proposed
rulemaking would be "HLRl" and
"HLR9". HLRl areas are characterized
by variably wet plains having highly
permeable surface and highly permeable
subsurface. This landscape is 92 percent
flat land, with 56 percent of the flat land
in the lowlands and 37 percent in the
uplands. Land surface and bedrock are
highly permeable. Because of the flat
sandy land surface, this geologic
framework should result in little surface
runoff, and recharge to both local and
regional ground-water flow systems
should be high. Therefore, ground water
is likely to be the dominant component
of the hydrologic system in this
landscape. The water table is likely to
be shallow in the lowlands, resulting in
extensive wetlands in this part of the
landscape.
Major water issues in this hydrologic
setting probably would be related to
contamination of ground water. In the
uplands, the contamination could affect
regional ground-water flow systems. In
the lowlands, the thin unsaturated zone
' and the close interaction of ground
water and surface water could result in
contamination of surface water.
Flooding probably would not be a
problem in the uplands, but it could be
a serious problem in the lowlands
because of the flat landscape and
shallow water table.
HLR9 areas are characterized by wet
plateaus having poorly permeable
surface and hignly permeable
subsurface. This landscape is 42 percent
flat land, with 24 percent in lowlands
and 17 percent in uplands. Land surface
is poorly permeable and bedrock is
highly permeable. Because of the flat
poorly permeable land surface, this
geologic framework should result in
considerable surface runoff and limited
recharge to ground water. However, the
bedrock is largely karstic carbonate
rock, which probably would result in a
considerable amount of surface runoff
entering the deep aquifer through
sinkholes. This water could readily
move through regional ground-water
flow systems. Surface runoff and
recharge through sinkholes are likely to
be the dominant component of the
hydrologic system in this landscape.
The water table is likely to be shallow
in the lowlands, resulting in extensive
wetlands in this part of the landscape.
Major water issues in this hydrologic
setting probably would be related to
contamination of surface water from
direct surface runoff, and extensive
contamination of ground water (and
ultimately surface water) because of the
ease of movement through the bedrock.
The capacity of these carbonate rocks to
mediate contaminants is limited.
Flooding could be a problem in the
lowlands.
EPA is requesting comment on how a
permit writer might identify CAFOs at
risk of discharging to surface water via
ground water. EPA is also requesting
comment on its cost estimates for the
permittee to have a hydrologist make
such a determination. EPA estimates
that for a typical CAFO, the full cost of
determining whether ground water
beneath the facility has a direct
hydrologic connection to surface water
would be approximately $3,000. See
Section X for more information on cost
estimates.
Permit requirements for facilities with
groundwater that has a direct hydrologic
connection with surface water are
discussed in Section VII.E.S.d below.
k. What Regulatory Relief is Provided
by Today's Proposed Rulemaking? Two-
tier vs. Three-tier Structure. Each of
EPA's proposals effect small livestock
and poultry businesses in different
ways, posing important trade-offs when
selecting ways to mitigate economic
impacts. First, by proposing to establish
a two-tier structure with a 500 AU
.threshold, EPA is proposing not to
automatically impose the effluent
guidelines requirements on operations
with 300 to 500 AU. By eliminating this
size category, EPA estimates that about
10,000 smaller AFOs are relieved from
being defined as CAFOs, and instead
would only be subject to permitting if
designated by the permit authority due
to being a significant contributor of
pollutants.
A three-tier structure, by contrast,
only automatically defines all
operations over 1,000 AU as CAFOs,
instead of 500 AU. However, while all
of the 26,000 AFOs between 300 and
1,000 AU wouldn't be required to apply
for an NPDES permit, all those
operations would be required to either
apply for a permit or to certify to the
permit authority that they do not meet
any of the conditions for being a CAFO.
EPA estimates that approximately
19,000 of these operations would have
to change some aspect of their operaticta
in order to avoid being permitted, and
all 26,000 would be required to develop
and implement a PNP. Thus, while in
theory fewer operations could be
permitted, in fact more small enterprises
would incur costs under a three-tier
scenario. Section X.J.4 provides a -
summary of the difference in costs
associated with these two options; more
detailed information is provided in
Section 9 of the Economic Analysis.
The three-tier structure allows States
more flexibility to develop more
effective non-NPDES programs to assist
middle tier operations. The two-tier
structure with a 500 AU threshold might
limit access to federal funds, such as
Section 319 nonpoint source program
funds, for operations in the 500 to 1,000
AU range. The detailed conditions in
the three-tier structure, however, dp not
meet the goal of today's proposal to
simplify the NPDES regulation for
CAFOs because it leaves in place the
need for the regulated community and
enforcement authorities to interpret a
complicated set of conditions.
Chicken Threshold. During
deliberations to select a threshold for
dry chicken operations, EPA considered
various options for relieving small
business impacts. Under the two-tier
structure, EPA examined a 100,000 bird
threshold as well as a 50,000 bird
threshold. Although the 50,000 bird
threshold effects many more small
chicken operations, analysis showed
that setting the threshold at 100,000
birds would not be sufficiently
environmentally protective in parts of
the country that have experienced water
quality degradation from the chicken
industry. Section VII.C.2.f describes the
relative benefits of each of these
options. Nonetheless, because wet layer
operations are currently regulated at
30,000 birds, raising the threshold to
50,000 birds will relieve some small
businesses in this sector.
Elimination of the mixed animal
calculation. EPA's is further proposing
to mitigate the effects of today's
proposal on small businesses by
eliminating the mixed animal
calculation for determining which AFOs
are CAFOs. Thus, operations with
mixed animal types that do not meet the
size threshold for any single livestock
category would not be defined as a
CAFO. EPA expects that there are few
AFOs with more than a single animal
type that would be defined as CAFOs,
since most mixed operations tend to be
smaller in size. The Agency determined
that the inclusion of mixed operations
would disproportionately burden small
businesses while resulting in little
additional environmental benefit. Since
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most mixed operations tend to be
smaller in size, this exclusion represents
important accommodations for small
business. EPA's decision not to include
smaller mixed operations is consistent
with its objective to focus on the largest
operations since these pose the greatest
potential risk to water quality and
public health given the sheer volume of
manure generated at these operations.
Operations that handle larger herds or
flocks take on the characteristics of
being more industrial in nature, rather
than having the characteristics typically
associated with farming. These facilities
typically specialize in a particular
animal sector rather than having mixed
animal types, and often do not have an
adequate land base for agricultural use
of manure. As a result, large facilities
need to dispose of significant volumes
of manure and wastewater which have
the potential, if not properly handled, to
cause significant water quality impacts.
By comparison, smaller farms manage
fewer, animals and tend to concentrate
less manure nutrients at a single farming
location. Smaller farms tend to be less
specialized and are more diversified,
engaging in both animal and crop
production. These farms often have
sufficient cropland and fertilizer needs
to land apply manure nutrients
generated at a farm's livestock or
; poultry business for agricultural
purposes.
For operations not defined as a CAFO,
the Permit Authority would designate
any facility determined to be a
significant contributor of pollution to
waters of the U.S. as a CAFO, and
would consequently develop a permit
based on best professional judgement
(BPJ).
The estimated cost savings from
eliminating the mixed animal
calculation is indeterminate due to
limited information about operations of
this size and also varying cost
requirements. EPA's decision is also
expected to simplify compliance and be
more administratively efficient, since
the mixed operation multiplier was
confusing to the regulated community
and to enforcement personnel, and did
not cover all animal types (because
poultry did not have an AU equivalent).
Site-specific PNPs Rather than
Mandated BMPs. In addition, while
facilities that are defined or designated
as.CAFOs would be subject to specific
performance standards contained with
the permit conditions, EPA's proposed
revisions also provide flexibility to
small businesses. In particular, the
revised effluent guidelines and NPDES
standards and conditions are not
specific requirements for design,
equipment, or work practices, but rather
allow the CAFO operator to write site-
specific Permit Nutrient Plans that
implement the permit requirements in a
manner appropriate and manageable for
that business. This will reduce impacts
to all facilities, regardless of size, by
allowing operators to choose the least
costly mix of process changes and new
control equipment that would meet the
limitations.
Demonstration of No Potential to
Discharge. Finally, in both proposals,
operations that must apply for a permit
would have the additional opportunity
to demonstrate to the permit authority
that pollutants have not been discharged
and have no potential to discharge into
waters of the U.S. These operations
would not be issued a permit if they can
successfully demonstrate no potential to
discharge. See section VILD.3 for a
discussion of demonstrating "no
potential to discharge."
Measures Not Being Proposed. During
the development of the CAFO
rulemaking, EPA considered regulatory
relief measures under the NPDES permit
program that are not being proposed,
including: (1) A "Good Faith Incentive,"
and (2) an-"Early Exit" provision. These
options are summarized below. More
detail is provided in the SBREFA Panel
Report (2000).
Under'the "Good Faith Incentive,"
EPA considered incorporating an
incentive for small CAFO businesses .
(i.e., AFOs with a number of animals
below the regulatory threshold) to take
early voluntary actions in good faith to
manage manure and wastewater in
accordance with the requirements of a
nutrient management plan. In the event
that such smaller AFOs have a discharge
that would otherwise cause them to be
designated as CAFOs, the CAFO
regulations would provide an
opportunity for these smaller AFOs to
address the cause of the one-time
discharge and avoid being designated as
CAFOs.
Under the "Early Exit" provision,
. EPA considered a regulatory provision
that would explicitly allow CAFOs with
fewer animals than the regulatory
threshold for large CAFOs to exit the
regulatory program after five years of
good performance. The regulations
could allow such a smaller CAFO to exit
the regulatory program if it
demonstrates that it had successfully
addressed the conditions that caused it
to either be defined or designated as a
CAFO.
EPA decided not to include either of
these provisions in the proposed
regulations following the SBAR Panel
consultation process. Neither small
businesses, SBA, OMB, nor EPA
enforcement personnel expressed
support for either of these provisions.
Also, the Early Exit provision was not
deemed to provide additional regulatory
relief over the current program, since an
operation that has been defined or
designated as a CAFO can already make
changes at the operation whereby, after
complying with the permit for the
permit's five year term, the operation
would no longer meet the definition of
a CAFO and therefore would.no longer
be required to be permitted.
Both the regulatory relief measures "
selected and those considered but not
selected are discussed in detail in.
Chapter 9 of the Economic Analysis,
included in the Record for today's
proposed rulemaking. EPA requests
comment on the regulatory relief
measures considered but not included
in today's proposal.
3. How Does the Proposed Rule Change
the Existing Designation Criteria and
Procedure?
In the existing regulation, an
operation in the middle tier, those with
300 AU to 1,000 AU, may either be
defined as a CAFO or designated by the
permit authority; those in the smallest
category, with fewer than 300 AU, may-
only be designated a CAFO if the facility
discharges: (1) into waters of the United
States through a man-made ditch,
flushing system, or other similar man-
made device; or (2) directly into waters
of the United States that originate
outside of the facility and pass over,
across, or through the facility or
otherwise come into direct contact with
the confined animals. The permit
authority must conduct an on-site
inspection to determine whether the
AFO is a significant contributor of
pollutants. The two discharge criteria
have proved difficult to interpret and
enforce, making it difficult to take
enforcement action against dischargers.
Very few facilities have been designated
in the past 25 years despite
environmental concerns.
EPA's proposals on how, and
whether, to amend these criteria vary
with the alternative structure. Under a
two-tier structure, EPA is proposing to
eliminate these two criteria; under a
three-tier structure, EPA is proposing to
retain these two criteria.
Under the proposed two-tier structure
with a 500 AU threshold, or under any
other alternative two-tier structure such
as with a 750 AU threshold, EPA is
proposing to eliminate the two'
discharge criteria. Raising the NPDES
threshold to 500 AU, 750 AU or 1,000
AU raises a policy question for facilities
below the selected threshold but with
more than 300 AU. Facilities with 300
to 1,000 AU are currently subject to
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NPDES regulation (if certain criteria are
met). To rely entirely on designation for
these operations could be viewed by
some as deregulatory, because the
designation process is a time consuming
and resource intensive process that
makes it difficult to redress violations.
It could also result in the inability of
permit authorities to take enforcement
actions against initial discharges unless
they are from an independent point
source at the facility. Otherwise, the
initial discharge can only result in
initiation of the designation process
itself; enforcement could only take place
upon a subsequent discharge. Unless the
designation process can be streamlined
in some way to enable permit
authorities to more efficiently address
those who are significant contributors of
pollutants, raising the threshold too
high may also not be sufficiently
protective of the environment. While
EPA could have proposed to retain the
two criteria for those with fewer than
300 AU, and eliminate it only for those
•with greater than 300 AU but below the
regulatory threshold, EPA believes that
this would introduce unnecessary
complexity into this regulation.
While eliminating the two discharge
criteria, this proposal would retain the
provision in the existing regulation that
any AFO may be designated as a CAFO
on a caserby-case basis if the NPDES
permit authority determines that the
facility is a significant contributor of
pollutants to waters of the U.S. Today's
proposal would not change the factors
that the regulation lists as relevant to
whether a facility is a significant
contributor—see proposed § 122.23(b)(l)
(listing factors such as: the size of the
operation; the amount of wastewater
discharged; the location of any potential
receiving waters; means of conveyance
of animal manure and process
wastewater into waters of the U.S.;
slope, vegetation, rainfall and other
factors affecting the likelihood or
frequency of discharge to receiving
waters).
This proposal also retains the existing
requirement that the permit authority
conduct an on-site inspection before
making a designation. No inspection
would be required, however, to
designate a facility that was previously
defined or designated as a CAFO,
although the permit authority may
chose to do one.
Under a three-tier structure, EPA is
proposing to retain the two discharge
criteria used to designate an AFO with
fewer than 300 AU as a CAFO. In this
approach, facilities in the 300 AU to
1,000 AU size range must meet certain
conditions for being considered a •
CAFO, and EPA considers this to be
sufficiently protective of the
environment.
EPA is requesting comment on these
two proposals, and also requests
comment on three other alternatives.
EPA could: (1) retain the two criteria
even under a two-tier structure for all
operations below the regulatory
threshold; (2) retain the two criteria
under a two-tier structure for only for
those with fewer than 300 AU and
eliminate the two criteria for those
below the regulatory threshold but with
greater than 300 AU; or (3) eliminate the
criteria in the three-tier structure for
those with fewer than 300 AU.
Significant concern was raised over
the issue of designation during the
SBREFA Panel process. At the time of
the Panel, EPA was not considering
eliminating these two criteria, and SERs
and Panel members strongly endorsed
this position. At that time, EPA's was
focusing on a three-tier structure with
revised conditions as the preferred
option, and retaining the criteria was
consistent with the revisions being
considered. Since then, however, EPA's
analysis has resulted in a strong option
for a two-tier approach that would be
simpler to implement and would focus
on the largest operations. Once this
scenario became a strong candidate,
reconsideration of the two designation
criteria was introduced. EPA realizes
that this proposal has raised some
concern in the small business
community. However, EPA does not
believe that eliminating these criteria
will result in significantly more small
operations being designated. Rather, it
will enable the permit authority to
ensure that the most egregious
discharges of significant quantities of
pollutants are addressed.
It is likely that few AFOs with less
than 300 AU are significant Contributors
of pollutants, and permit authorities
may be appropriately focusing scarce
resources on larger facilities. Further,
some also believe that it may be
appropriate under a two-tier structure to
retain the two criteria as well as the on-
site inspection criterion to AFOs under
the regulatory threshold, e.g. with fewer
than 500 AU or 750 AU. SERs during
the SBREFA process indicated that
family farmers operating AFOs with
fewer than 1,000 AU tend to have a
direct interest in environmental
stewardship, since their livelihood (e.g.,
soil quality and drinking water) often
depends on it. They also argued that
EPA should not divert resources away
from AFOs with the greatest potential to
discharge—those with 1,000 AU or
more. EPA is soliciting comment on
whether to retain the designation
criteria for all AFOs below the
regulatory threshold in a two-tier
structure, and whether this option will
be protective of the environment.
While permit authorities have
indicated that the requirement for an
on-site inspection makes the
designation process resource intensive,
recommendations resulting from the
SBREFA sinall business consultation
process encouraged EPA not to remove
the on-site inspection requirement.
Some were concerned that EPA might
do widespread blanket designations of
large numbers of operations, especially
in watersheds that have been listed
under the CWA 303(d), Total Maximum
Daily Load (TMDL) process. Thus, EPA
is soliciting comment on whether to
eliminate the requirement that the
inspection be "on-site," perhaps by
allowing, in lieu of on-site inspections,
other forms of site-specific information
gathering, such as use of monitoring
data, fly-overs, satellite imagery, etc.
Other parts of the NPDES program allow
such information gathering and do not
require inspections to be "on-site."
If the on-site requirement were
eliminated, the permit authority would
still need to make a determination that
the facility is a significant contributor of
pollution, which might necessitate an
on-site inspection in many cases. On the
other hand, in watersheds that are not
meeting water quality standards for
nutrients, the permit authority could
designate all AFOs as CAFOs without
conducting individual on-site
inspections. Even in 303(d) listed
watersheds, however, an operator of an
individual facility might be able to
demonstrate in the NPDES permit
application that it has no potential to
discharge, and request that it be
exempted from NPDES requirements.
Due to the significant concerns of the
small business community, EPA is not
proposing at this time to eliminate the
on-site inspection requirements, but,
rather, EPA is soliciting comment on
whether or not to eliminate this
provision or to revise it to allow other
forms of site-specific data gathering.
Finally, EPA is proposing a technical
correction to the designation regulatory
language. The existing CAFO NPDES
regulations provide for designation of an
AFO as a CAFO upon determining that
it is a significant contributor of
"pollution" to the waters of the U.S. 40
CFR 122.23(c). EPA is today proposing
to change the term to "pollutants."
Elsewhere in the NPDES-regulations,
EPA uses the phrase "significant
contributor of pollutants" for
designation purposes. 40 CFR
122.26(a)(l)(v). EPA is not aware of einy
reason the Agency would have used
different terms for similar designation
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3023
standards, and is seeking consistency in
this proposal. The Agency believes the
term "pollutant" is the correct term. The
Clean Water Act provides definitions for
both "pollutant and "pollution" in
Section 502, but the NPDES program of
Section 402 focuses specifically on
permits "for the discharge of any
pollutant, or combination of
pollutants." Therefore, EPA believes it
is appropriate to establish a designation
standard for purposes of permitting
CAFOs based on whether a facility is a
significant contributor of "pollutants."
4. Designation of CAFOs by EPA in
Approved States
Today's proposal would explicitly
allow the EPA Regional Administrator
to designate an AFO as a CAFO if it
meets the designation criteria in the
regulations, even in States with
approved NPDES programs. See
proposed § 122.23(b). As described in
the preceding section, VII.C.4, AFOs
that have not been defined as CAFOs
may be designated as CAFOs on a case-
by-case basis upon determination that
such sources are significant contributors
of pollution to waters of the United
States. EPA's authority to designate
AFOs as CAFOs would be subject to the
same criteria and limitations to which
State designation authority is subject.
The existing regulatory language is
not explicit as to whether EPA has the
authority to designate AFOs as CAFOs
in States with approved NPDES
programs. The current regulations state
that "the Director" may designate AFOs
as CAFOs. 40 CFR 122.23(c)(l). The
• existing definition of "Director" states:
"When there is an approved State
program, 'Director' normally means the
State Director. In some circumstances,
however, EPA retains the authority to
take certain actions even where there is
an approved State program." 40 CFR
122.2. Today's proposal would give EPA
the explicit authority to designate an
AFO as a CAFO in States with approved
programs.
EPA does not propose to assume
authority or jurisdiction to issue permits
; to the CAFOs that the Agency
designates in approved NPDES States.
That authority would remain with the
approved State.
EPA believes that CWA Section 501(a)
provides the Agency with the authority
to designate point sources subject to
' regulation under the NPDES program,
even in States approved to administer
, the NPDES permit program. This
interpretive authority to define point
sources and nonpoint sources was
recognized by the D.C. Circuit in NRDC
v. Costle, 568 F.2d 1369,1377 (D.C. Cir.
1977). The interpretive authority arises
from CWA Section 501(a) when EPA
interprets the term "point source" at
CWA Section 502(14). EPA's proposal
would ensure that EPA has the same
authority to designate AFOs as CAFOs
that need a permit as the Agency has to
designate other storm water point
sources as needing a permit. See 40 CFR
122.26(a)(2)(v).
1 EPA recognizes that many State
agencies have limited resources to
implement their NPDES programs.
States may be hesitant to designate
CAFOs because of concerns that
regulating the CAFOs will require
additional resources that could be used
for competing priorities. In light of the
increased reliance and success in
control of point sources under general
permits, however, the Agency believes
that there will be only an incremental
increase in regulatory burden due to the
designated sources.
On August 23,1999, the Agency
proposed to provide explicit authority
for EPA to designate CAFOs in
approved States, but would have limited
such authority to the designation of
AFOs where pollutants are discharged
into waters for which EPA establishes a
total maximum daily load or "TMDL"
and designation is necessary to .ensure
that the TMDL is achieved. 64 FR
46058, 46088 (August 23,1999). EPA
received comments both supporting and
opposing the proposal. In promulgating
the final TMDL rule, however, the
Agency did not take final action on the
proposed changes applicable to CAFOs,
65 FR 43586, 43648 (July 13, 2000),
deciding instead to take action in this
proposed rulemaking.
Today's proposal is intended to help
ensure nationally consistent application
of the provisions for designating CAFOs
and is not focusing specifically at AFOs
in impaired watersheds.
Implementation of the current rule in
States with NPDES authorized programs
has varied greatly from State to State,
with several States choosing to .
implement non-NPDES State programs
rather than a federally enforceable
NPDES program. Public concerns have
also been raised about lack of access to
State non-NPDES CAFO programs.
While several of today's proposed
revisions would help to correct these.
disparities, EPA is concerned that there
may be instances of significant
discharges from AFOs that may not be
addressed by State programs, and that
are not being required to comply with
the same standards and requirements
expected of all AFOs. As part of their
approved programs, States should
designate AFOs that are significant
sources of pollutants. EPA would have
the authority to designate AFOs as
CAFOs, should that be necessary.
The Agency invites comment on this
proposal.
5. Co-permitting Entities That Exert
Substantial Operational Control Over a
CAFO
EPA is proposing that permit
authorities co-permit entities that
exercise substantial operational control
over CAFOs along with the owner/
operator of the facility. See proposed
§ 122.23(a)(5) and (i)(4). While the
permit authority currently may deem
such entities to be "operators" under
the Clean Water Act and require them
to be permitted under existing legal
requirements, today's proposal includes
changes to the regulations to identify
the circumstances under which co-
permitting is required and how permit
authorities are expected to implement
the requirements. Because the existing
definition of "operator" in 122.2
generally already encompasses
operators who exercise substantial
operational control, the Agency is
seeking comment on whether this
additional definition [or provision] is
necessary.
For other categories of discharges,
EPA's regulations states that
contributors to a discharge "may" be co-
permittees. See 40 CFR § 122.44(m).
§ 122.44(m) addresses the situation in
which the co-permittees operate distinct
sources and a privately owned treatment
works is the owner of the ultimate point
source discharge. In that context, EPA
deemed it appropriate to give the permit
writer the discretion to permit only the
privately owned treatment works or the
distinct sources, or both, depending on
the level of control each exercises over
the pollutants. In the context of CAFOs,
however, the co-permittees both control
some aspects of operations at the point
source. Therefore, EPA is proposing that
they must either be co-permittees or
each must hold a separate permit.
Processor/Producer Relationship. As
discussed below, proposed
§ 122.23(a)(5) is intended, at a
minimum, to require permit authorities
to hold certain entities that exercise
substantial operational control over
other entities jointly responsible for the
proper disposition of manure generated
at the CAFO. While under today's
proposal a permit authority could
require an entity that has substantial
operational control over a CAFO to be
jointly responsible for all of the CAFO's
NPDES permit requirements, the
proposal would allow the permit
authority to allocate individual
responsibility for various activities to
any of the co-permittees. The proposed
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rule would specify, however, that the
proper disposition of manure must
remain the joint responsibility of all the
entities covered by the permit.
As discussed in more detail in section
IV.C. of this preamble, among the major
trends in livestock and poultry
production are closer linkages between
animal feeding operations and
processing firms. Increasingly,
businesses such as slaughtering
facilities and meat packing plants and
some integrated food manufacturing
facilities are contracting out the raising
or finishing production phase to a
CAFO. Oftentimes, production contracts
are used in which a contractor (such as
a processing firm, feed mill, or other
animal feeding operation) retains
ownership of the animals and/or
exercises substantial operational control
over the type of production practices
used at the CAFO. More information on
the trends in animal agriculture and the
evolving contractual relationships
between producer and processors is
presented in section IV.C of this
preamble.
Use of production contracts varies by
sector. Production contracting
dominates U.S. broiler and turkey
production, accounting for 98 percent of
annual broiler production and 70
percent of turkey production. About 40
percent of all eggs produced annually
are under a production contract
arrangement. Production contracting in
the hog sector still accounts for a
relatively small share of production
(about 30 percent of hog production in
1997), but use is rising, especially in
some regions. Production contracts are
uncommon at beef and dairy operations,
although they are used by some
operations to raise replacement herd or
to finish animals prior to slaughter.
Additional detail on the use of
production contracts in these sectors is
provided in section VI.
Although farmers and ranchers have
long used contracts to market
agricultural commodities, increased use
of production contracts is changing the
organizational structure of agriculture
and is raising policy concerns regarding
who is responsible for ensuring that
manure and wastewater is contained on-
site and who should pay for
environmental improvements at a
production facility. As a practical
matter, however, regulatory authorities
have limited ability to influence who
pays for environmental compliance,
since the division of costs and
operational responsibilities is
determined by private contracts, not
regulation.
In addition, there is also evidence that
the role of the producer-processor
relationship may influence where
animal production facilities become
concentrated, since animal feeding
operations tend to locate in close
proximity to feed and meat packing
plants. This trend niay be increasing the
potential that excess manure nutrients
beyond the need for crop fertilizer are
becoming concentrated in particular
geographic areas, thus raising the
potential for increased environmental
pressure in those areas. To further
examine this possibility, EPA conducted
an analysis of the correlation between
areas of the country where there is a
concentration of excess manure
generated by animal production
operations and a concentration of meat
packing and poultry slaughtering
facilities. This analysis concludes that
in some areas of the country there is a
strong correlation between areas of
excess manure concentrations and areas
where there is a large number of
processing plants. More information on
this analysis is provided in section
IV.C.4 of this preamble.
Substantial Operational Control as
Basis for Co-Permitting. Today's
proposal would clarify that all entities
that exercise substantial operational
control over a CAFO are subject to
NPDES permitting requirements as an
"operator" of the facility. EPA's
regulations define an owner or operator
as "the owner or operator of any 'facility
or activity' subject to regulation under
the NPDES program." 40 CFR § 122.2.
This definition does not provide further
detail to interpret the term, and the
Agency looks for guidance in the
definitions of the term in other sections
of the statute: "The term 'owner or
operator' means any person who owns,
leases, operates, controls, or supervises
a source." CWA § 306(a)(4) (emphasis
added).
Case law defining the term "operator"
is sparse, but courts generally have
concluded that through the inclusion of
the terms owner and operator: "Liability
under the CWA is predicated on either
(1) performance of the work, or (2)
responsibility for or control over the
work." U.S. v. Sargent County Water
Resources Dist, 876 F.Supp 1081,1088
(N.D. 1992). See also, U.S. v. Lambert,
915 F.Supp. 797, 802 (S.D.WVa. 1996)
("The.Clean Water Act imposes liability
both on the party who actually
performed the work and on the party
with responsibility for or control over
performance of the work."); U.S. v.
Board of Trustees ofFla. Keys
Community College, 531 F.Supp. 267,
274 (S.D.Fla. 1981). Thus, under the
existing regulation and existing case
law, integrators which are responsible
for or control the performance of the
work at individual CAFOs may be
subject to the CWA as an operator of the
CAFO. With today's proposal, EPA is
identifying some factors which the
Agen.cy believes indicate that the
integrator has sufficient operational
control over the CAFO to be considered
an "operator" for purposes of the CWA.
Whether an entity exercises
substantial operational control over the
facility woulji depend on the
circumstances in each case. The
proposed regulation lists factors
relevant to "substantial operational
control," which would include (but riot
be limited to) whether the entity: (1)
Directs the activity of persons working
at the CAFO either through a contract or
direct supervision of, or on-site
participation in, activities at the facility;
(2) owns the animals; or (3) specifies
how the animals are grown, fed, or
medicated. EPA is aware that many
integrator contracts may not provide for
direct integrator responsibility for
manure management and disposal. EPA
believes, however, that the proposed
factors will identify integrators who
exercise such pervasive control over a
facility that they are, for CWA purposes,
co-operators of the CAFO.
This is a representative list of factors
that should be considered in
determining whether a co-permit is
appropriate, but States should develop
additional factors as needed to address
their specific needs and circumstances.
The greater the degree to which one or
more of these or other factors is present,
the more likely that the entity is ,
exercising substantial operational
control and, thus, the more important it
becomes to co-permit the entity. For
example, the fact that a processor
required its contract grower to purchase
and feed its animals feed from a specific
source could be relevant for evaluating
operational control. EPA will be
available to assist NPDES permit
authorities in making case-specific
determinations of whether an entity is
exerting control such that it should be
co-permitted. EPA is also taking
comment on whether there are
additional factors which should be
included in the regulation. EPA also
requests comment on whether degree of
participation in decisions affecting
manure management and disposal is
one of the factors which should be
considered.
EPA is soliciting comment on .
whether, alternatively, the fact .that an
entity owns the animals that are being
raised in a CAFO should be sufficient to
require the entity to be a joint permittee
as a owner. EPA believes that ownership
of the animals establishes an ownership
interest in the pollutant generating
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3025
activity at the CAFO that is sufficient to
hold the owner of the animals
responsible for the discharge of
pollutants from the CAFO.
In non-CAFO parts of the.NPDES
regulations, the operator rather than the
owner is generally the NPDES permit
holder. One reason an owner is not
required to get a permit is illustrated.by
an owner who has leased a factory.
When an owner leases a factory to the
lessee-operator, the owner gives up its
control over the pollution-producing
activities. The owner of animals at a
feedlot, on the other hand, maintains all
current interests in the animal and is
merely paying the contract grower to
raise the animals for the owner. It is the
owner's animals that generate most of
the manure and wastewater that is
created at a CAFO. Therefore, EPA
believes that ownership of the animals
may be sufficient to create responsibility
for ensuring that their wastes are
properly disposed of. This may be
particularly true where manure must be
sent off-site from the CAFO in order to
be properly disposed of.
EPA has previously identified
situations where the owner should be
the NPDES permittee rather than, or in
addition to, the contract operator. In the
context of municipal wastewater
treatment plants, EPA has recognized
that the municipal owner rather than
the contract operator may be the proper
NPDES permittee where the owner
maintains some control over the plant.
If EPA selects this option, it might
also clarify that ownership could be
determined by factors other than
outright title to the animals. This would
prevent integrators from modifying their
contracts so that they do not own the
animals outright. EPA could develop
factors for determining ownership such
as the existence of an agreement to
purchase the animals at a fixed price
together with the integrator accepting
the risk of loss of the animals prior to
sale. EPA solicits comments on whether
such criteria are necessary and, if so,
what appropriate criteria would be.
Implementation of Co-Permitting. All
permittees would be held jointly
responsible for ensuring that manure
production in excess of what can be
properly managed on-site is handled in
an environmentally appropriate manner.
The effluent guidelines proposes to
require a number of land application
practices that will limit the amount of
CAFO manure that can be applied to a
CAFO's land application areas. If the
CAFO has generated manure in excess
of the amount which can be applied
consistent with its NPDES permit, the
proposed NPDES regulations impose a
number of requirements on co-
permittees, described in VII.D.4. See
proposed § 122.23(j)(4). The co-
permittees could also transfer their
excess manure to a facility to package it
is as commercial fertilizer, to an
incinerator or other centralized
treatment, to be transformed into a
value-added product, or to any other
operation that would not land apply the
manure. EPA is proposing that manure
that must leave the CAFO in order to be
properly managed not be considered .
within the unique control of any of the
entities with substantial operational
control over the CAFO. In fact, an
integrator that owns the animals at a
number of CAFOs in an area which are
producing manure in such volumes that
it cannot be properly land applied may
be in a unique position to be able to
develop innovative means of
compliance with the permit limits.
Today's proposal would specify that the
disposition of excess manure would
remain the joint responsibility of all
permit holders. See proposed
§ 122.23(i)(9). Integrators would thereby
be encouraged to ensure compliance
with NPDES permits in a number of
ways, including: (a) establishing a
corporate environmental program that
ensures that contracts have sound
environmental requirements for the
CAFOs; (b) ensuring that contractors
have the necessary infrastructure in
place to properly manage manure; and
(c) developing and implementing a
program that ensures proper.
management and/or disposal of excess
manure. The proposed requirement will
give integrators a strong incentive to
. ensure that their contract producers
comply with permit requirements and
subject them to potential liability if they
do not. Integrators could also establish
facilities to which GAFOs in the area
could transfer their excess manure. EPA
is further proposing to require co-
permitted entities to assume
responsibility for manure generated at
their contract operations when the
manure is transferred off-site.
EPA believes that integrators will
want to make good faith efforts to take
appropriate steps to address the adverse
environmental impacts associated with
their business. EPA is soliciting
comments on how to structure the co-
permitting provisions of this rulemaking
to achieve the intended environmental
outcome without causing negative
impacts on growers.
EPA also believes the proposal
contains sufficient flexibility for permit
authorities to develop creative, and
streamlined, approaches to co-
permitting. For example, a State might
want to develop an NPDES general
permit in collaboration with a single
integrator or, alternatively, with all
integrators in a geographic region (e.g.,
statewide, watershed, etc.). Such a
general permit might require integrators
to assume responsibility for ensuring
that their contractors engage in proper
management practices for excess
manure. As a condition of the NPDES
general permit, the integrator could be
obligated to fulfill its commitment or to
assume responsibility for violations by
its growers.
The proposed regulations would
provide that a person is an "operator"
when "the Director determines" that the
person exercises substantial operational
control over the CAFO. EPA also
considered whether to delete the •
reference to a determination by the
Director, so that any person who
exercised such control over a CAFO
would be an operator without the need
for a determination by the Director. If
EPA were to eliminate the need for a
determination before such a person may
be an "operator," persons who may
meet this definition would be less
certain in some cases as to whether they
do in fact meet it. On the other hand,
if EPA retains the need for a
determination by the Director, then
because of resource shortages or for
other reasons, EPA or the State might
not be able to make these
determinations in a timely way, or
might not make them at all in some
cases. These persons would therefore
inappropriately be able to avoid liability
even though they are exercising
substantial operational control of a
CAFO. Accordingly, EPA requests
comments on whether the final rule
should retain the need for a
determination by the Director of
substantial operational control. Finally,
EPA solicits comment on whether to
provide that, in authorized States, either
the Director or EPA may make the
determination of substantial operational
control. ' . ' .
Additional Issues Associated With Co-
Permitting. The option of co-permitting
integrators was discussed extensively by
small entity representatives (SERs) and
by the Small Business Advocacy Review
Panel during the SBREFA outreach
process. The SERs included both
independent and contract producers. A
majority of SERs expressed opposition
to such an approach. They were
concerned that co-permitting could
decrease the operator's leverage in
contract negotiations with the corporate
entity, increase corporate pressure on
operators to indemnify corporate
entities against potential liability for
non-compliance on the part of the
operator, encourage corporate entities to
interfere in the operational management
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of the feedlot in order to protect against
such liability, provide an additional
pretext for corporate entities to
terminate a contract when it was to their
financial advantage to do so, restrict the
freedom of operators to change
integrators, and generally decrease the
profits of the operator. These SERs were
not convinced that co-permitting would
result in any benefit to the environment,
given that the operator generally
controls those aspects of a feedlot's
operations related to discharge, nor
were they convinced that such an
approach would result in additional
corporate resources being directed
toward environmental compliance,
given the integrator's ability to pass on
any additional costs it might incur as a
result of co-permitting to the operator. A
few SERs, who were not themselves
involved in a contractual relationship
with a larger corporate entity, favored
co-permitting as a way of either leveling
the playing field between contact and
independent operators, or extracting
additional compliance resources from
corporate entities. Despite general
concern over co-permitting due to the
economic implications for the
contractor, several SERs voiced their
support for placing shared
responsibility for the manure on the
integrators, especially in the swine
sector.
The Panel did not reach consensus on
the issue of co-permitting. On the one
hand, the Panel shared the SER's
concern that co-permitting not serve as
a vehicle through which the bargaining
power and profits of small contract
growers are further constrained with
little environmental benefit. On the
other, the Panel believed that there is a
potential for environmental benefits
from co-permitting. For example, the
Panel noted (as discussed above), that
co-permitted integrators may be able to
coordinate manure management for
growers in a given geographic area by
providing centralized treatment, storage,
and distribution facilities, though the
Panel also pointed out that this could
happen anyway through market
mechanisms without co-permitting if it
resulted in overall cost savings. In fact,
the Agency is aware of situations where
integrators do currently provide such '
services through their production
contracts. The Panel also noted that co-
permitting could motivate corporate
entities to oversee environmental
compliance of their contract growers, in
order to protect themselves from
potential liability, thus providing an
additional layer of environmental
oversight.
The Panel also expressed concern that
any co-permitting requirements may
entail additional costs, and that co-
permitting can not prevent these costs
from being passed on to small operators,
to the extent that corporate entities
enjoy a bargaining advantage during
contract negotiations. The Panel thus
recommended that EPA carefully
consider whether the potential benefits
from co-permitting warrant the costs,
particularly in light of the potential
shifting of these costs from corporate
entities to contract growers. The Panel
further recommended that if EPA does
propose any form of co-permitting, it
address in the preamble both the
environmental benefits and any
economic impacts on small entities that
may result and request comment on its
approach.
As discussed in Section VI, EPA
estimates that 94 meat packing plants
that slaughter hogs and 270 poultry
processing facilities may be subject to
the proposed co-permitting
requirements. EPA expects that no meat
packing or processing facilities in the
cattle and dairy sectors will be subject
to the proposed co-permitting
requirements. Reasons for this
assumption are summarized in Section
VI of this preamble. Additional
information is provided in Section 2 of
the Economic Analysis. EPA is seeking
comment on this assumption as part of
today's notice. •
EPA did not precisely estimate the
costs and impacts that would accrue to
individual co-permittees. Information
on contractual relationships between
contract growers and processing firms is
proprietary and EPA does not have the
necessary market information and data
to conduct such an analysis. Market
information is not available on the
number and location of firms that
contract out the raising of animals to
CAFOs and the number and location of
contract growers, and the share of
production, that raise animals under a
production contract. EPA also does not
have data on the exact terms of the
contractual agreements between
processors and CAFOs to assess when a
processor would be subject to the
proposed co-permitting requirements,
•nor does EPA have financial data for
processing firms or contract growers
that utilize production contracts.
EPA, however, believes that the
framework used to estimate costs to
CAFO does provide a means to evaluate
the possible upper bound of costs that
could accrue to processing facilities in
those industries where production
contracts are more widely utilized and
where EPA believes the proposed co-
permitting requirements may affect
processors. The details of this analysis
are provided in Section X..F.2. Based on
the results of this analysis, EPA
estimates that the range of potential
annual costs to hog processors is $135
million to $306 million ($1999, pre-tax).
EPA estimates that the range of potential
annual costs to broiler processors as $34
million to $117 million. EPA is
soliciting comment on this approach.
This approach does not assume any
addition to the total costs of the rule as
a result of co-permitting, yet it does not
assume that there will be a cost savings
to contract growers as result of a
contractual arrangement with a
processing firm. This approach merely
attempts to quantify the potential
magnitude of costs that could accrue to
processors that may be affected by the
co-permitting requirements. Due to lack
of information and data, EPA has not
analyzed the effect of relative market
power between the contract grower and
the integrator on the distribution of
costs, nor the potential for additional
costs to be imposed by the integrator's
need to take steps to protect itself
against liability and perhaps to
indemnify itself against such liability
through its production contracts. EPA
has also not specifically analyzed the
environmental effects of co-permitting.
EPA recognizes that some industry
representatives do not support
assumptions of cost passttirough from
contract producers to integrators, as also
noted by many small entity
representatives during the SBREFA
outreach process as well as by members
of the SBAR Panel. These commenters
have, noted that integrators have a
bargaining advantage in negotiating
contracts, which may ultimately allow
them to force producers to incur all
compliance costs as well as allow them
to pass any additional costs down to
growers that may be incurred by the,
processing, firm. EPA has conducted an
extensive review of the agricultural
literature on market power in each of
the livestock and poultry sectors and
concluded that there is little evidence to
suggest that increased production costs
would be prevented from being passed
on through the market levels. This
information is provided in the docket.
EPA requests comments on its cost
passthrough assumptions in general and
as they relate to the analysis of
processor level impacts under the
proposed co-permitting requirements.
EPA will give full consideration to all
comments as it decides whether to
include the proposed requirement for
co-permitting of integrators in the final
rule, or alternately whether to continue
to allow this decision to be made on a
case-by-case basis by local permit
writers. Several other alternatives to co-
permitting are discussed below. EPA
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3027
also requests comment on how to
structure the co-permitting provisions of
the rule making to achieve the intended
environmental outcome without causing
negative Impacts on growers, should it
decide to finalize them.
Alternatives to Co-Permitting. EPA
also considered alternative approaches
under which EPA would waive the co-
: permitting requirement for States and
, processors that implement effective
programs for managing excess manure
and nutrients. One such approach
would require the disposition of manure
that is transported off-site to remain the
joint responsibility of the processor and
other permit holders, unless an
enforceable state program controls.the
off-site land application of manure. For
example, if the State program addressed
the off-site land application of manure
with PNP development and
implementation requirements that are
equivalent to the requirements in 40
CFR412.13(b)(b) and 122.23(j)(2), it
would not be necessary to permit the
processor in order to ensure the
implementation of those requirements.
Another approach would be based on
whether the processor has developed an
approved Environmental Management
System (EMS) that is implemented by
all of its contract producers and
• regularly audited by an independent
third party. EPA anticipates that the
alternative program would be designed
• to achieve superior environmental and
public health outcomes by addressing
factors beyond those required in this
proposed regulation, such as odor,
pests, etc. The following section
describes the principles of such a
system.
Environmental Management System
as Alternative to Co-Permitting. An
increasing number of organizations, in
both the private and public sector, are
using environmental management
systems (EMS) as a tool to help them not
only comply with environmental legal
requirements, but also address a full
range of significant environmental
impacts, many of which are not
regulated. Environmental management
systems include a series of formal
, procedures, practices, and policies that
allow an organization to continually
assess its impacts on the environment
and take steps to reduce these impacts
over time, providing an opportunity and
mechanism for continuous
! improvement. EMSs do not replace the
need for regulatory requirements, but
: can complement them and-help
organizations improve their overall
environmental performance. EPA
supports the adoption of EMSs that can
help organizations improve their
compliance and overall performance
and is working with a number of
industries to help them adopt industry-
wide EMS programs.
Under this alternative, EPA would not
require a processor to be co-permitted
with their producers if the processor has
developed, in conjunction with its
contract producers, an EMS program
that is approved by the permit authority
and EPA, including opportunities for
review and comment by EPA and the
public. The EMS would identify the
environmental planning and oversight
systems, and critical management
practices expected to be implemented
by all of the processors' contract
growers. Independent third-party
. auditors annually would verify effective
implementation of the EMS to the
permit authority and integrator. If a
processor agreed to implement such a
program, and then one or more of its
contract producers failed to meet these ,
requirements, the processor would
remove animals from the contract
producers farm, in a time and manner
as defined in the approved EMS, and
not supply additional animals until the
contract producer is certified as being in
compliance with the EMS by the third
party auditor. Once the animals have
been removed, processors would not
continue contractual relationships with
producers not capable or willing to meet
the minimum requirements of the EMS.
Processors who fail the independent
audit would be required to apply for an
NPDES permit or be included as a co-
permittee on contract producers'
permits.
Each permitted facility's EMS would
also require that programs be in place to
ensure that it remained in compliance
with its NPDES permit (if a permitted
facility). For all contractors, the EMS
would address all activities that could
have a significant impact on the
environment, including activities not
subject to this proposed regulations.
These best management practices could
be adapted to meet the particular needs
of individual States, as appropriate.
To ensure consistency, contract
growers and the processor would be
required to be annually audited by an
independent third party. The permit
authority would be expected to develop
criteria for the audit, including what
constitutes acceptable implementation
of the EMS by both contract producers
and the processor. Such an EMS would
require contract producers to comply
with their NPDES permit (if a permitted
facility) and to implement the terms of
. the EMS that address manure
management as well as other
unregulated impacts like odor, pests,
etc. Contract producers would need to
employ specific Best Management
Practices (BMPs) when addressing
unregulated impacts and maintain
specific records on their use. BMPs
could be adapted to meet the needs of
a particular state or region.
The EMS would be required to be
consistent with guidance developed by
the processor and approved by the
permit authority and EPA. Processors
would assume responsibility for
developing, in conjunction with
contract producers, the proposed EMS
as well as the proposed third party
auditing guidance, which would be
subject to approval by the permit
authority and EPA. Further, the
processors would facilitate
implementation by their producers
through training and technical
assistance.
Each facility's EMS would be required
to successfully complete an audit
conducted by an independent third
party organization approved by the
permit authority. Facilities would also
be subject to annual follow up audits
designed to determine if the EMS was
in place and being adequately
implemented. Contractors would not
continue contractual relationships with
producers that did not remain in
compliance and did not continue to
adequately implement their EMSs, as
determined by annual third party
follow-up audits.
Each processor would be required to
seek input from local stakeholders as it
developed and implemented its EMS.
Further, information about EMS
implementation, including audit results,
would be publicly available. _
Because geographic areas tend to be
dominated by few processors, contract
growers tend to have limited choice in.
selecting with whom to have a
production contract. Thus, EPA expects
that processors would provide economic
and technical assistance to help contract
producers implement the EMS.
EPA sees potential benefits to this
type of approach. Besides giving
processors an incentive to develop
regional approaches to managing excess
manure nutrients from CAFO generated
manure, it would involve the processors
in ensuring that permittees meet their
permit requirements, thus relieving
burden on the resources of permit
authorities and EPA. Further, an EMS
goes beyond what NPDES requires, in
that it addresses issues beyond the
scope of this rulemaking, such as odor,
pests, etc., and, most important, it will
address manure generated by all CAFOs
as well as all AFOs under contract with
the processors. Finally, this approach
will provide local stakeholders with
important information about the
operations of producers and give these
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stakeholders meaningful opportunities
to provide input to the facility on its
operations throughout the permitting
and EMS development process.
On the other hand, an EMS approach
could be more difficult to administer
and enforce. Some also question
whether it would be appropriate to
impose the requirements of an EMS on
independent growers or AFO operators
who trade with the processors, but who
are not subject to this regulation.
Further, it could be a concern that a
producer might, seemingly arbitrarily,
refuse resources to assist with
implementing the EMS, and then
subsequently withholding animals from
the grower and effectively terminating
the contract.
EPA solicits comment on whether
EPA should provide an option for States
to develop an alternative program for
addressing excess manure in lieu of
requiring co-permitting. EPA also
requests comment on the EMS concept
described in detail in this proposal.
6. How Does EPA Propose To Regulate
Point Source Discharges at AFOs That
AreNotCAFOs?
EPA is proposing to clarify in today's
proposed rulemaking that all point
source discharges from AFOs are
covered by the NPDES regulations even
if the facility is not a CAFO (except for
certain discharges composed entirely of
storm water, as discussed below). See
proposed § 122.23(g).
The definition ofpoint source in the
CWA and regulations lists both discrete
conveyances (such as pipes and ditches)
and CAPOs. CWA § 502(14); 40 CFR
122.2. EPA wants to confirm as
explicitly as possible that the NPDES
regulatory program applies to both types
of discharges. Thus, where an AFO is
not a CAFO (either because it has not
met the definition criteria or has not
been designated) discharges from the
AFO are still regulated as point source
discharges under the NPDES program if
the discharge is through a discrete
conveyance that would qualify itself as
a point source. An AFO is not excluded
from the NPDES regulatory program
altogether simply because it is not a
CAFO. That is, if an AFO has a point
source discharge through a pipe, ditch,
or any other type of discernible,
confined and discrete conveyance, it is
subject to NPDES requirements just the
same as any other facility that has a
similar point source discharge and that
is not an AFO.
Today's proposal would clarify that,
even though an AFO is not a CAFO, an
AFO may nevertheless require an
NPDES permit due to discharges from a
point source at the facility. See
proposed § 122.23(g). More specifically,
under existing regulation and today's
proposal, an AFO may be subject to
regulation under the Clean Water Act in
any of the following ways:
(1) Non-storm water discharges. A
non-storm water discharge of pollutants
from a point source, such as a ditch, at
the production area or land application
area of an AFO, into waters of the U.S.
is a violation of the CWA unless the
owner or operator of the facility has an
NPDES permit for the discharge from
that point source (as discussed further
below); or
(2) Storm water discharges. A
discharge from a point source, such as
a ditch, at the land application area of
an AFO that does not qualify for the
agricultural storm water discharge
exemption may be designated as a
regulated storm water point source
under § 122.26(a)(l)(v), and, therefore,
require an NPDES permit. The
agricultural storm water exemption is
discussed further in the following
section D; or
(3) Discharge as a CAFO. An AFO
may be designated as a 'CAFO and,
therefore, require an NPDES permit on
that basis (as discussed in the section on
designation).
In addition to listing "physical"
conveyances (such as pipes and
ditches), the definition ofpoint source
in the CWA and EPA's regulations
identifies CAFOs as a point source.
CWA § 502(14); 40 CFR 122.2. Because
all CAFOs are point sources, even
surface run off from a CAFO that is not
channelized in a discrete conveyance is
considered a point source discharge that
is subject to NPDES permit
requirements. AFOs, on the other hand,
are not defined as point sources.
Because of that, under today's proposal,
AFOs will be subject to NPDES
permitting requirements if they have a
point source discharge including under
the circumstances described above.
First, today's proposal states clearly
that an AFO which has a discharge of
pollutants through a point source, such
as a pipe or ditch, at either the
production area or the land application
area, to the waters of the United States
which is not the direct result of
precipitation is in violation of the Clean
Water Act. See proposed § 122.23(g).
, The existing regulations are silent and
some AFO operators have argued that
none of their discharges can be
considered point source discharges
unless their AFO is defined or
designated as a CAFO under 40 GFR
122.23. Today's proposal would make it
clear that certain discharges at AFOs are
subject to NPDES requirements and no
designation by the permitting authority
is required. For example, if the operator
of an AFO with less than 500 animal
units (in the two-tier structure) or less
than 300 animal units (in the three-tier
structure) empties its lagoon via a pipe
directly into a stream without an NPDES
permit, that would be a violation of the
Clean Water Act.
Second, today's proposal clarifies that
a storm water discharge composed
entirely of storm water from a point
source at the land application area of an
AFO into waters of the U.S. requires an
NPDES permit if: (1) the discharge does
not quality for the agricultural storm
water discharge exemption, discussed
below; and (2) it is designated as a
regulated storm water point source.
Generally, all point source discharges
are prohibited unless authorized by an
NPDES permit. Section 402(p) of the
Clean Water Act exempts certain storm
water discharges from that general
prohibition. Section 402(p)(2)(E) and the
EPA regulations that implement Section
402(p)(6) provide for regulation of
unregulated point sources on a case by
case basis upon designation by EPA or
the State permitting authority (40 CFR
122.26(a)(l)(v)).
EPA considered proposing that only
40 CFR 122.23 may be used to designate
an AFO based on discharges from its
land application area. Designation as a
CAFO, however, could unnecessarily
subject the AFO's production area to
NPDES permit requirements. Also,
because the land application area of
third party applicators of manure may
be designated using 122.26(a)(l)(v), EPA
is proposing that AFO controlled land
application areas could also be
designated under that section, even if
the AFO has not been designated as a
CAFO. AFOs may be required to get a
permit based on storm water discharges
from their production areas only if they
have been designated as a CAFO under
§122.23.
An AFO operator is not required to
obtain a permit for a point source
discharge at the land application area
which consists entirely of storm water,
and which does not qualify for the
agricultural storm water discharge
exemption, unless the point source has
been designated under 40 CFR '
122.26(a)(l)(v). A discharge consists
entirely of storm water if it is due
entirely to precipitation. It may include
incidental pollutants that the storm
water picks up while crossing the
facility. The discharge would not
consist entirely of storm water if, for
example, a non-storm water (e.g.,
process waste water) discharge occurs
during the storm and is mixed with the.
storm water. Once a permit authority
has determined that a.point source
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3020
discharge from the land application area
of an AFO is not composed entirely of
storm water and does not qualify for the
agricultural storm water discharge
exemption, the permit authority may
- designate that point source as a
regulated storm water point source if the
permit authority further determines
under 40 CFR 122;26(a)(l)(vj that the
discharge contributes to a violation of a
water quality standard or is a significant
contributor of pollutants to waters of the
U.S.
Designation under § 122.26 is separate
from the designation of an operation as
a CAFO. The criteria for designation as
a CAFO based on discharges from either
the land application or the production
area are discussed above in C.4.
D. Land Application of CAFO-generated
Manure
1. Why Is EPA Regulating Land
Application of CAFO-generated
Manure?
As discussed in Section IV.B of this
preamble, agricultural operations,
• including animal production .facilities,
are considered a significant source of
water pollution in,the United States.
The recently released National Water
Quality Inventory indicates that
agriculture is the leading contributor of
identified water quality impairments in
the nation's rivers and streams, as well
as in lakes, ponds, and reservoirs.
• Agriculture is also identified as a major
contributor to identified water quality
impairments in the nation's estuaries.
Pollutant discharges from CAFOs
arise from two principal routes. The first
route of discharges from CAFOs is from
manure storage or treatment structures,
especially catastrophic failures, which
cause significant volumes of often
untreated manure and wastewater to
enter waters of the U.S. resulting in fish
kills. The second route of pollutant
discharges is from .the application of
manure to land, usually for its fertilizer
value or as a means of disposal.
Additional information on how
pollutants from CAFOs reach surface
waters is provided in Section V.B of this
document and in the rulemaking record.
The proposed regulation seeks to
improve control of discharges that occur
from land applied manure and
wastewater. Analysis conducted by
USDA indicates that, in some regions,
the amount of nutrients present in land
applied manure has the potential to
exceed the nutrient needs of the crops
grown in those regions. Actual soil
sample information compiled by
researchers at various land grant
universities provides an indication of
areas where there is widespread
phosphorus saturation. Other research
by USDA documents the runoff
potential of land applied manure under
normal and peak precipitation.
Furthermore, research from a variety of
sources indicates that there is a high
correlation between areas with impaired
lakes, streams and rivers due to nutrient
enrichment and areas where there is
dense livestock and poultry production.
This information is documented in the
Technical Development Document.
Additional information is available in
the Environmental Assessment of the
Proposed Effluent Limitations
Guidelines for Concentrated Animal
Feeding Operations and other
documents that support today's
rulemaking.
2. How Is EPA Interpreting the
Agricultural Storm Water Exemption
With Respect to Land Application of
CAFO-generated Manure?
Today, EPA is proposing to define the
term "agricultural stormwater
discharge" with respect to land
application of,manure and wastewater
from animal feeding operations. Section
502(14) of the Clean Water Act excludes
"agricultural stormwater discharges"
from the definition of the term point
source. The Clean Water Act does not
further define the term, and the Agency
has not formally .interpreted it. Under
today's proposal, an "agricultural
stormwater discharge" would be ,
denned as "a discharge composed
entirely of storm water, as defined in 40
CFR 122.26(a)(13), from a land area
upon which manure and/or wastewater
from an animal feeding operation or
concentrated animal feeding operation
has been applied in accordance with
proper agricultural practices, including
land application of manure or
wastewater in accordance with either a
nitrogen-based or, as required, a
phosphorus-based manure application
rate." § 122.23(a)(l).
The CWA defines a point source as:
"any discernible, confined and discrete
conveyance, including but not limited
to any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure,
container, rolling stock, concentrated .
animal feeding operation, or vessel or
other floating craft, from which
pollutants are or may be discharged.
The term does not include agricultural
stormwater discharges and return flows
from irrigated agriculture." 33 U.S.C.
§1362(14).
Congress added the exemption from
the definition of point source for
"agricultural stormwater discharges" in
the Water Quality Act of 198 7. There is
limited legislative history for this
provision; Congress simply stated that
the "provision expands the existing
exemption for return flows from
irrigated agriculture to include
agricultural stormwater discharges."
Legislative History of the Water Quality
Act of 1987,100th Cong., 2d. Sess. at
538 (1988).
The courts have found that the EPA
Administrator has the discretion to
define point and nonpoint sources.
NRDCv. Costle, 568 F.2d 1369,1382
(D.C. Cir. 1977). EPA is proposing to
exercise that discretion by defining the
exemption for "agricultural stormwater
discharges" to include only those
discharges that (1) are composed
entirely of storm water; and, (2) occur
only after the implementation of proper
agricultural practices.
EPA believes the first component is
clear on the face'of the statute. Only
discharges that result from precipitation
can qualify for an agricultural storm
water discharge exemption. Therefore,
the addition of pollutants as a result of
a discharge from a point source to
waters of the United States that is not
due to precipitation is a violation of the
Clean Water Act (except in compliance
with an NPDES permit). For example,
the application of CAFO manure onto a
field in quantities that are so great that
gravity conveys the manure through a
ditch even in dry weather into a nearby
river would not be eligible for the
exemption for agricultural storm water
discharges. Furthermore, it is possible
for a discharge to occur during a
precipitation event yet not be
considered to be "composed entirely of
stormwater." As the Second Circuit
found, a discharge during a storm could
be "primarily caused by the over-
saturation of the fields rather than the
rain and * * * sufficient quantities of
manure were present so that the run-off
could not be classified as "stormwater'."
CABEv. SouthviewFarms, 34 f. 3d .
114,121 (Sept. 2, 1994).
Second, EPA is proposing that to be
eligible for the exemption for
agricultural storm water, any addition of
manure and/or wastewater to navigable
waters must occur despite the use of
proper agricultural practices. EPA
interprets the statute to reflect Congress'
intent not to regulate additions of
manure or wastewater that are truly
agricultural because they occur despite
the use of proper agricultural practices.
Application of manure or wastewater
that is not consistent with proper rates
and practices such that there are adverse
impacts on water quality would be
considered waste disposal rather than
agricultural usage. In today's action,
EPA is proposing to interpret the term
"proper agricultural practices" to
incorporate the concept of protecting
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water quality. This is consistent with
USDA's Technical Guidance for
Developing Comprehensive Nutrient
Management Plans, which states that:
"tt]he objective of a CNMP is to provide
AFO owners/operators with a plan to
manage generated nutrients and by-
products by combining conservation
practices and management activities
into a system that, when implemented,
will protect or improve water quality."
EPA believes that proper agricultural
practices do encompass the need to
protect water quality. While EPA
recognizes that there may be legitimate
agricultural needs that conflict with
protecting water quality in some
instances, EPA believes that its
proposed definition of proper
agricultural practices strikes the proper
balance between these objectives. Since
one focus of agricultural management
practices, whether through guidance or
regulation, at the state or federal level,
is the minimization of water quality
impacts, and since this is of particular
concern to EPA, tie Agency is
proposing a definition of "agriculture"
for Clean Water Act purposes which
would be flexible enough so that an
assessment of the actual impacts of a
discharge of animal waste on a specific
waterbody could be factored in. Today's
proposal identifies the proper
agricultural practices which land
appliers seeking to qualify for the
agricultural storm water discharge
exemption would need to implement. In
addition, if a permit authority
determined that despite the
implementation of the practices
identified in today's proposal,
discharges from the land application
area of a CAPO were having an impact
on water quality, the permit writer
would need to impose additional
:es
that occur despite the implementation
of all these proper agricultural practices
would be considered "agricultural
stonnwater discharges" and be eligible
for the exemption. EPA requests
comment on this interpretation of the
agricultural storm water exemption and
on the proposal to define proper
agricultural practice.
For CAFOs which land apply their
manure, the Agency is proposing to
require that owners or operators
implement specific agricultural
practices, including land application of
manure and wastewater at a specified
rate, development and implementation
of a Permit Nutrient Plan, a prohibition
on the application of CAFO manure or
wastewater within 100 feerof surface
water, and, as determined to be
necessary by the permit authority,
restrictions on application of manure to
frozen, snow covered or saturated
ground. See proposed §§412.31(b) and
412.37; § 122.21(j). The Agency is
proposing to require these specific
agricultural practices under its CWA
authority both to define the scope of the
agricultural storm water discharge
exemption and to establish the best
available-technology for specific
industrial sectors. Given the history of
improper disposal of CAFO waste and
Congress' identification of CAFO's as
point sources, the Agency believes it
should clearly define the agricultural
practices which must be implemented at
CAFOs.
EPA considered limiting the scope of
the proper agricultural practices
necessary to qualify for the agricultural
storm water discharge exemption to
those specified in the effluent guideline
and NPDES regulations with no
flexibility for the permit authority to
consider additional measures necessary
to mitigate water quality impacts. EPA
chose not to propose this option because
EPA was concerned that permit
authorities would then be unable to
include any additional permit
conditions necessary to implement
folal Maximum Daily Loads in
impaired watersheds. EPA seeks
comment on this option and other ways
to address this concern.
The Agency is proposing to allow
AFO owners- or operators who land
apply manure (either from their own
operations or obtained from CAFOs) and
more traditional, row crop farmers who
land apply manure obtained from
CAFOs to qualify.for the agricultural
storm water exemption as long as they
are applying manure and wastewater at
proper rates. As discussed in VII.B,
under one of today's co-proposed
options, CAFOs that transfer manure to
such recipients would be required to
obtain a letter of certification from the
recipient land applier that the recipient
intends to determine the nutrient needs
of its crops based on realistic crop
yields for its area, sample its soil at least
once every three years to determine
existing nutrient content, and not apply
the manure in quantities that exceed the
land application rates calculated using
either the Phosphorus Index,
Phosphorus Threshold, or Soil Test
Phosphorus method as specified in 40
CFR412.13(b)(l)(iv). For purposes of
the CAFO's permit, recipient land
appliers need not implement all of the
proper agricultural practices identified.
above which CAFOs would be required
to implement at their own land
application areas. EPA believes that this
proposal enables the Agency to
implement Congress' intent to both
exclude truly agricultural discharges
due to storm water and regulate the
disposition of the vast quantities of
manure and wastewater generated by
CAFOs.
EPA considered defining the
agricultural storm water discharge
exemption for non-CAFO land appliers
to apply only to those discharges which
occurred despite the implementation of
all the practices required by today's
proposal at CAFO land application
areas. EPA could require a more
comprehensive set of practices for land
appliers of CAFO manure and
wastewater to qualify for the
agricultural storm water discharge
exemption. Under any definition of
proper agricultural practices, a recipient
who failed to implement the required
practices and had a discharge through a
point source into waters of the U.S.
could be designated as a regulated storm
water point source.. However, that
recipient would not be vulnerable to
enforcement under the Glean Water Act
for discharges prior to designation, and
could only be designated as a point
source if the permitting authority (or
EPA in authorized States) found that the
conditions of 40 CFR 122.26(a)(l)(v)
were met. See discussion below. EPA is
requesting comment on this option.
Whether a discharger (who would
otherwise be ineligible for the
agricultural storm water discharge
exemption) is subject to the Clean Water
Act permitting requirements varies,
because of the complex interaction
among the agricultural storm water
discharge exemption, the definition of
"point source," and other storm water
discharge provisions. The next sections
clarify EPA's intentions with regard to
such regulation.
3. How is EPA Proposing To Regulate
Discharges From Land Application of
CAFO-generated Manure by CAFOs?
In today's action, EPA is proposing
that the entire CAFO operation (e.g. the
feedlot/production area and the land
application areas under the operational
control of a CAFO owner or operator) is
subject to the revised effluent
limitations guideline and the revised
NPDES permitting regulation. See
proposed § 122.23(a)(2). Also, as
discussed above, EPA is proposing to
interpret the CWA to allow CAFO land
application areas to be eligible for the
agricultural storm water discharge
exemption. However, unless the CAFO
could demonstrate that it has absolutely
no potential to discharge from the
production area and the land
application area, the facility would be
required to apply for an NPDES permit.
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3031
See proposed § 122.23(e). While EPA is
proposing to interpret the terms of the
statute such that CAFOs may qualify for
the agricultural storm water exemption,
EPA is also proposing that such CAFOs
must apply for a permit even if the
CAFO's only discharges may potentially
qualify for the agricultural storm water
discharge exemption. EPA is proposing
such a requirement because it has the
authority to regulate point source
discharges and any discharge from the
land application area of a CAFO which
is not agricultural storm water is subject
to the Clean Water Act. EPA believes
that the only way to ensure that all
nonagricultural, and therefore point
source, discharges from CAFOs are
permitted is to require that CAFOs
apply for NPDES permits which will
establish effluent limitations based on
proper agricultural practices.
As noted above, the CWA explicitly
defines the term "point source" to
include CAFOs, and explicitly excludes
agricultural storm water discharges. In
today's action, EPA is attempting to
interpret both provisions in a way that
establishes meaningful controls over a
significant source of pollution in our
Nation's waters. EPA is proposing to
interpret the definition of "point
source" such that the exclusion of
. "agricultural stormwater discharges"
may be an exclusion from any and all .
of the conveyances listed in the
i definition of "point source," including
"concentrated animal feeding
operations." The production area of the
CAFO would continue to be ineligible
for the agricultural storm water
discharge exemption because it involves
the type of industrial activity that
originally led Congress to single out
. concentrated animal feeding operations
as point sources. However, the land
application areas under the operational
control of the CAFO, where CAFO
manure or wastewater is appropriately
used as a fertilizer for crop production,
appear to have the kind of agricultural
activity that Congress intended to
exempt. Consequently, EPA proposes to
interpret the CWA so that its authority
to regulate discharges of CAFO manure
due to precipitation from land
application areas is used in a way that
ensures that any discharge is the result
of agricultural practices. Any such
discharges would be from the CAFO
and, therefore, no separate, confined
1 and discrete conveyance need be
present.
Under today's proposal, permit
writers would establish effluent limits
for land application areas in the form of
rates and practices that constitute
proper agricultural practices to the
extent necessary to fulfill the
requirements of the effluent guidelines
or based on BPJ, as well as to the extent
necessary to ensure that a CAFO's
practices are agricultural in that they
minimize the operation's impact on
water quality.
As noted above, EPA believes the
statute does not directly address the
interaction between the specific listing
of "concentrated animal feeding
operations" and the specific exemption
of "agricultural stormwater discharges"
in the definition of "point source."
While EPA is proposing to interpret the
Act to allow the land application areas
of CAFOs to be eligible for the
•agricultural storm water discharge
exemption, EPA is considering an
interpretation of the Act under which
all additions of pollutants associated
with CAFOs could be regulated as
"point source" discharges, and, thus,
the agricultural storm water exemption
would never apply to discharges from a
CAFO. By singling out "concentrated
animal feeding operations," a far more
specific conveyance reference compared
to the other, more general, terms in the
.definition of "point source" (such as
"ditch," "channel," and "conduit"),
Congress may have intended the
addition of pollutants to waters of the
United States from these facilities to be
considered "industrial" and not
"agricultural" discharges. As such, the
tremendous amount of manure and
wastewater generated by CAFOs could
be considered industrial waste. Thus,
any discharge, even if caused by storm
water after land application of the
manure could be considered a discharge
"associated with industrial activity"
under the statute's storm water
discharge provisions.
EPA is soliciting comments on four
additional approaches under which the
' agricultural storm water exemption
would not apply to CAFOs. Each of
these approaches would require that all
CAFO permits restrict discharges from
land application sites to the extent
necessary to prevent them from causing
or contributing to a water quality
impairment.
First, EPA is soliciting comment on an
alternate approach that would regulate
CAFO waste as "process waste" that is
not eligible for the agricultural storm
water exemption, when it is applied on
! land that is owned or controlled by the
CAFO owner or operator, because it is
industrial process waste and therefore
not agricultural. Any storm water
associated discharges would be
regulated under the existing storm water
statutory provisions and EPA's
implementing regulations. Under that
approach, in addition to the
requirements in the proposed effluent
limitation guideline, the NPDES permit
issued to the CAFO operator would
include any additional limitations
necessary to protect water quality.
Second, EPA solicits comment on
classifying discharges from land
application sites as discharges regulated
under "Phase I" of the NPDES storm
water program (CWA Section
402(p)(2)(B)). EPA's existing storm
water regulations already identify
discharges from land application sites
that receive industrial wastes as a
"storm water discharge associated with
industrial activity." 40 CFR
122.26[b)(14)(v). Under the storm water
regulation, EPA does not currently
interpret that category (i.e., storm water
discharge associated with industrial
activity) to include land application of
CAFO manure because the Agency did
not assess the cost of such regulation
when it promulgated the rule. With
today's proposal, however, EPA has
calculated the cost of proper land
application of CAFO-generated manure
and wastewater and could clarify that
precipitation-induced discharges from
land application areas are subject to the
storm water discharge regulations. If
EPA finalizes a definition of CAFO
which includes the land application
area, then EPA could also regulate any
storm water discharges from CAFOs
under its existing regulations as a storm
water discharge associated with
industrial activity because facilities
subject to storm water effluent
guideline's are considered to be engaging
in "industrial activity." 40 CFR 122.26
(b)(14)(i). EPA would have to conclude
that no discharges from CAFO land
application areas qualify for the
agricultural storm water discharge
exemption, even discharges which
occur despite implementation of proper
agricultural practices.
Third, EPA could consider discharges
from the CAFO's land application area
to be discharges of "process
wastewater," and, therefore, not
"composed entirely of stormwater,"
rendering the statutory storm water
provisions entirely inapplicable. Under
this alternate interpretation of the
statutory terms, NPDES permit
provisions for the CAFO, including both
the production area and the land
application area, could include both
technology-based limits and any
necessary water quality-based effluent
limits.
Fourth, EPA could clarify that once a
facility is required to be permitted
because it is a CAFO, the agricultural
storm water discharge exemption no
. longer applies to the land application
area subject to the permit. Thus, all
permit conditions, including a water
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quality-based effluent limitation, could
be required on both the production area
and the land application area.
•EPA is also requesting comment on
whether the land application practices
established under the effluent
guidelines will be sufficient to ensure
that there will be little or no discharge
due to precipitation from CAFO land
application areas. If there were no such
discharges, then EPA wouldn't need to
adopt any of the four alternative
approaches described above, because
tfie effluent guidelines requirements
would protect water quality. If there
would be significant run-off even when
manure is applied in accordance with
agricultural practices, EPA is requesting
comment on the extent and the potential
adverse water quality impacts from that
increment.
4. How is EPA Proposing to Regulate
Land Application of Manure and
Wastewater by non-CAFOs?
In some instances, CAFO owners or
operators transport their manure and/or
wastewater off-site. If off-site recipients
land apply the CAFO-generated manure,
they may be subject to regulation under
the Clean Water Act. In addition, AFOs
may land apply their own manure and
wastewater, and they too may be subject
to regulation under the Clean Water Act.
A land applier could be subject to
regulation if: (1) its field has a point
source, as defined under the Act,
through which (2) a discharge occurs
that is not eligible for the agricultural
storm water exemption, and (3) the land
applier is designated on a case-by-case
basis as a regulated point source of
storm water. 40 CFR § I22.26(a)(l)(v).
EPA notes that under the three-tier
structure, an AFO with between 300 AU*-
and 1,000 AU which has submitted a
certification that it does not meet any of
the conditions for being CAFO, and
therefore does not receive an NPDES
permit, would be immediately subject to
enforcement and regulation under the
Clean Water Act if it has a discharge
which is not subject to the agricultural
storm water discharge exemption; EPA
and the State do not need to designate
such a facility as either a CAFO or as a
regulated storm water point source.
With this proposal, EPA intends to
give effect to both the agricultural storm
water discharge exemption and the
other storm water provisions of the
Clean Water Act by subjecting to
regulation a non-CAFO land applier of
AFO and/or CAFO-generated manure
and wastewater only if: (1) the discharge
is not eligible for the agricultural storm
water discharge exemption (which, as
discussed above, for AFOs and other
non-CAFO land appliers primarily
consists of applying the manure in
accordance with proper agricultural
practice, including soil test, P threshold,
or Phosphorus Index methods); and (2)
a conveyance at the land applier's
operation has been designated as a
regulated storm water point source. EPA
emphasizes again that this regulatory
approach is relevant only to discharges
which are composed entirely of storm
water. If it is not due to precipitation,
a discharge of manure or wastewater
through a point source, such as a ditch,
into the waters of the U.S. need not be
designated to be subject to enforcement
and regulation under the Clean Water
Act, as discussed in Section VII.C.6 of
today's proposal.
In addition, the Director (or Regional
Administrator) could exercise his or her
authority to designate such dischargers
within a geographic area as significant
contributors of pollution to waters of the
United States. 40 CFR 122.26(a)(9)(i)(D).
The geographic area of concern could be
a watershed which is impaired for the
pollutants of concern in CAFO waste.
To do so, the Director (or Regional
Administrator) would need to identify
the point source at each land
application area or provide a record for
presuming that the land application
areas in that watershed have point
sources, and the designation would only
apply to those that do.
As noted above, case-by-case
designation of point sources at land
application areas which are not under
the control of a CAFO owner or operator
can already occur under existing
regulations. Under section
122.26(a)(l)(v), either the permitting
authority or EPA may designate a
discharge which he or she determines
contributes to a violation of a water
quality standard or is a significant
contributor of pollutants to waters of the
U.S. EPA is soliciting comment on
whether to clarify the term "significant
contributor of pollutants" for lie
purposes of designating a discharge of
manure and/or wastewater. If a land
applier is applying manure and/or
wastewater such that he or she is not
eligible for the agricultural storm water
discharge exemption and if the ,
receiving waterbody (into which there
are storm water discharges associated
with manure and/or wastewater) is not
meeting water quality standards for a
pollutant in the waste (such as
phosphorus, nitrogen, dissolved oxygen
or fecal coliform), then EPA could
propose that, by regulation, such a
discharge constitutes a "significant
contributor of pollutants." For example,
if a land applier is applying manure
and/or wastewater at a rate above the
rate which qualifies the recipient for the
agricultural storm water discharge
exemption, and if, due to precipitation,
waste runs off the land application area
through a ditch into a navigable water
that is impaired due to nutrients, then
the permit authority may designate that
point source as a regulated storm water
point source. The designee would then
need to apply for an NPDES permit or
risk being subject to enforcement for
unpermitted discharges.
EPA solicits comment on the
proposed means of ensuring that
manure and wastewater from AFOs and
CAFOs is used in an environmentally
appropriate manner, whether on-site at
the CAFO or AFO or off-site outside of
the control of the CAFO operator.
E. What are the Terms of an NPDES
Permit?
EPA is proposing to include several
new requirements in the NPDES permit
for CAFOs. See proposed § 122.23(i). As
discussed in section VIII on the
proposed effluent guidelines, EPA is
proposing to require all CAFO operators
to develop and implement a Permit
Nutrient Plan, which is a site-specific
plan for complying with the effluent
limitations requirements contained in
the NPDES permit. EPA is proposing to
require permit authorities to develop
special conditions for each individual or
general NPDES permit that address: (1)
development of the allowable manure
application rate; and (2) timing and
method for land applying manure.
Permits would also include a special
condition that clarifies the duty to
maintain permit coverage until the
facility is properly closed.
NPDES permits are comprised of
seven sections: cover page; effluent
limitations; monitoring and reporting
requirements; record keeping
requirements; special conditions; and
standard conditions, discussed below.
1. What is a Permit Nutrient Plan (PNP)
and What is the difference between
USDA's CNMP and EPA's PNP?
EPA is proposing to require all CAFO
operators to develop and implement a
Permit.Nutrient Plan, or PNP. See
proposed § 412.31(b)(l)(i)(iv) and
§ 122.23(k)(4). The PNP is a site-specific
plan that describes how the operator
intends to meet the effluent discharge
limitations and other requirements of
the NPDES permit, Because it is the
primary planning document for
determining appropriate practices at the
CAFO, EPA is also proposing to require
that it be developed, or reviewed and
modified, by a certified planner. The
PNP must be developed within three
months of submitting either a notice of
intent for coverage under an NPDES
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3033
general permit, or an application for an
NPDES individual permit.
• EPA is proposing to include a permit
requirement for the CAFO to develop
and implement a PNP and modify it
when necessary. EPA believes this
approach will maintain flexibility for
modifications as the agricultural
practices of the CAFO change. PNPs are
intended to be living documents that are
updated as circumstances change.
Formal permit modification procedures
would not have to be followed every
time the PNP was modified.
As described in section VIII of today's
proposed revisions to the effluent
guidelines, CAFO operators would be
required to prepare a PNP •that
establishes the allowable manure
application rate for land applying
manure and wastewater, and that
documents how the rate was derived.
The plan would also address other site-
specific conditions that could affect
manure and wastewater application. It
would also describe sampling
techniques to be used in sampling
manure and soils, as well as the
calibration of manure application
equipment, and would describe
operational procedures for equipment at
the production area.
EPA is proposing to use the term
"Permit Nutrient Plan" in today's
proposed regulation in order to have a
separate and distinct term that applies
solely to the subset of activities in a
CNMP that are directly connected with
the effluent guideline and NPDES
permit requirements, which are related
to the best available technology
currently available. EPA expects that
many CAFOs will satisfy the
requirement to develop a PNP by
developing a Comprehensive Nutrient
Management Plan (CNMP). EPA
recognizes that creating a new term has
the potential to create some initial
confusion, and cause concern about
overlapping or duplicative
requirements. However, EPA believes
the term PNP more clearly articulates to
the regulated community the important
distinctions.between the broad
requirements of a CNMP and the more
specific effluent guideline requirements
for a PNP.
EPA invites comment on today's
proposal to define PNPs as the subset of
elements in the CNMP that are written
to meet the effluent guideline
requirements. EPA is especially
interested in knowing whether PNP is
the best term to use to refer to the
regulatory components of the CNMP,
. and whether EPA's explanation of both
the differences and relationship
between these two terms (PNP and
CNMP) is clear and unambiguous.
hi the Unified National Strategy for
Animal Feeding Operations, EPA and
USDA agreed that the development and
implementation of CNMPs was the best
way to minimize water quality
impairment from confinement facilities
and land application of manure and
wastewater. The Strategy also
articulated the expectation that all AFOs
would develop and implement CNMPs,
although certain facilities (CAFOs)
would be required to do so while others
(AFOs) would do so on a voluntary
basis.
hi December 2000, USDA published
its Comprehensive Nutrient
Management Planning Technical
Guidance (referred to here as the
"CNMP Guidance"). Federal Register:
December 8, 2000 (Volume 65, Number
237) Page 76984-76985. The CNMP
Guidance is intended for use by NRCS,
consultants, landowners/operators, and
others that will either be developing or
assisting in the development of CNMPs.
USDA published the CNMP Guidance to
serve only as a technical guidance
document, and it does not establish
regulatory requirements for local, tribal,
State, or Federal programs. Rather, it is • -
intended as a tool to support the
conservation planning process, as
contained in the NRCS National
Planning Procedures Handbook. The
objective of the CNMP technical
guidance is to identify management
activities and conservation practices
that will minimize the adverse impacts
of animal feeding operations on water
quality. The CNMP Guidance provides a
list of elements that USDA believes
should be considered when developing
a CNMP. The strength of the CNMP
Guidance is the breadth of conservation
practices and management activities
that it recommends AFQ operators
should consider.
Initially, it was EPA's expectation to
simply adopt USDA's voluntary
program into its NPDES permitting
program. However, by intentionally
avoiding establishing regulatory
requirements and limiting its role to that
of technical guidance only, USDA's
CNMP Guidance lacks many of the
details EPA believes are necessary to
ensure discharges of manure and other
process wastewater are adequately
controlled and nutrients applied to
agricultural land in an acceptable
manner. In addition, the CNMP
Guidance addresses certain elements
that address aspects of CAFO operations
that EPA will not include as a part of
the effluent guidelines and standards.
Nonetheless, it is important to ensure
that the regulatory program that would
be established by the effluent guidelines
and standards and NPDES permit
regulations proposed today is
complementary to and leverages the
technical expertise of USDA with its
CNMP Guidance, rather than present
CAFO operators with programs that they
might perceive as contradictory. EPA
believes this goal will be accomplished
by the requirements being proposed
today. EPA is proposing that CAFOs,
covered by the effluent guideline,
develop and implement a PNP that is
narrower in scope than USDA's CNMP
Guidance, but.that establishes specific
actions and regulatory requirements.
One of the key differences between
the effluent guideline PNP and USDA's
CNMP is the scope of elements included
in each plan. USDA's CNMP includes
certain aspects that EPA does not
require CAFO operators to address
within the regulatory program. For
example, element 4.2.2.1 of USDA's
CNMP Guidance ("Animal Outputs—
Manure and Wastewater Collection,
Handling, Storage, Treatment, and
Transfer") tells operators that the CNMP
should include insect control activities,
disposal of animal medical wastes, and
visual improvement considerations.
Additionally, Element 4.2.2.1 of the
CNMP Guidance ("Evaluation and
Treatment of Sites Proposed for Land
Application") states the CNMP should
identify conservation practices and
management activities needed for
erosion control and water management.
The regulations (and PNP) being
proposed today include no such
requirement. EPA is not including
conservation practices which control
erosion as part of a PNP because erosion
control is not needed on all CAFO
operations and because the costs
associated with controlling erosion
would add $150 million dollars to the
cost of this proposal. These elements of
a CNMP are, however, key components
to protect water quality from excessive
nutrients and sediments. EPA solicits
comment and data on the costs and
benefits of controlling erosion and
whether erosion control should be a
required component of PNPs.
There are a number of elements that
are addressed by both the CNMP and
PNP. Examples of common elements
include soil and manure analyses to
determine'nutrient content; calibration
of application equipment; developing
nutrient budgets; and records of Plan
implementation. However, USDA's
CNMP Guidance is indeed presented
only as technical guidance. The CNMP
Guidance identifies a number of
elements that AFOs should consider,
but there is no avenue for ensuring that
AFOs implement any management
practices or achieve a particular
performance standard. In contrast,
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EPA's proposed PNP would establish
requirements for CAFOs that are
consistent with the technical guidance
published by USDA experts, but that go
beyond that guidance-by identifying
specific management practices that must
be implemented.
For example, EPA is proposing the
effluent guidelines to require CAFOs to
analyze soil samples at least once every
three years, and manure and lagoon
samples at least annually. 40 CFR
412.37(a)(4)(ii). The CNMP Guidance
addresses such analyses, but imposes no
mandatory duty to perform such
analyses, nor to conform to a particular
monitoring frequency. Given the degree
to which overflows and catastrophic
failures of lagoons have been due to
poor operation or maintenance of
manure storage structures, EPA is '
proposing to establish specific
requirements under Sections 308 and
402 that would: (1) More precisely
monitor lagoon levels to prevent
overflows that could be reasonably
avoided; (2) require operators to
periodically inspect the structural
integrity of manure handling and
storage structures, and expeditiously
take corrective action when warranted;
and (3) maintain records to ensure the
proper operation and maintenance of
manure handling and storage structures.
USDA's CNMP Guidance establishes no
such requirements.
The regulations proposed today
would also require permit authorities to
establish more specific requirements for
application of manure and wastewater
to land, where appropriate, including:
how the CAFO operator is to calculate
the allowable manure application rate;
when it is appropriate to apply manure
to frozen, snow covered or saturated
land; and facility closure.
a. How are PNPs Developed and What
is the Role of Certified Specialists?
Under today's proposed rule, CAFO
owners and operators would be required
to seek qualified technical assistance for
developing PNPs to meet then: effluent
guidelines and NPDES permit
requirements. EPA is proposing that
PNPs be developed, or reviewed and
modified, by certified planners. See
proposed §412.31(b)(l)(ii).
Since PNPs are a defined subset of
activities covered in CNMPs, as
described above, owners and operators
are expected to take advantage of the
same technical assistance that is
available for CNMP development,
including appropriate Federal agencies,
such as the NRCS, State and Tribal
agricultural and conservation agency
staff, Cooperative Extension Service
agents and specialists, Soil and Water
Conservation Districts, and Land Grant
Universities. In addition, there are a
growing number of non-governmental
sources of qualified technical assistance,
including integrators, industry
associations, and private consultants
who are certified to develop CNMPs, as
well as the defined subset of activities
covered in PNPs. In addition to the help
of these experts, a growing number of
computer-based tools are either
available or under development to
facilitate development and
implementation of CNMPs, and should
be equally useful for PNPs.
Although CAFO owners and operators
are ultimately responsible for
developing and implementing effective
PNPs, EPA is today proposing that PNPs
be developed and/or reviewed and
approved by a certified specialist. A
certified PNP specialist is a person who
has a demonstrated capability to
develop CNMPs in accordance with
applicable USDA and State standards,
as well as PNPs that meet the EPA
effluent guideline, and is certified by
USDA or a USDA-sanctioned
organization. Certified specialists
include qualified persons who have
received certifications through a State or
local agency, personnel from NRCS,
certification programs recognized as
third party vendors of technical
assistance, or other programs recognized
by States. In addition, USDA is now
developing agreements with third-party
vendors similar to the 1998 agreement
with the Certified Crop Advisors (CCAs)
and consistent with NRCS standards
and specifications (or State standards if
more restrictive). CCAs are expected to
be available to provide technical
assistance to producers in nutrient
management, pest management, and
residue management.
The purpose of using certified
specialists is to ensure that effective
PNPs are developed and/or reviewed
and modified by persons who have the
requisite knowledge and expertise to
ensure that plans fully and effectively
address the need for PNPs that meet the
minimum effluent guideline
requirements hi the NPDES permit, and
that plans are appropriately tailored to
the site-specific needs and conditions at
each CAFO.
EPA recognizes that some States
already have certification programs in
place for nutrient management
planning, and expects that the USDA
and-EPA guidance for AFOs and CAFOs
will provide additional impetus for new
and improved State certification
programs. These programs provide an
excellent foundation for producing
qualified certified specialists for
CNMPs, and can be modified relatively
easily to include a special module on
how to develop an effective PNP as a
defined subset of activities in the
CNMP. EPA expects that, as a result of
experience gained in the initial round of
CAFO permitting under the existing
regulations (2000—2005), certification
programs will be well equipped to deal
with both CNMPs and PNPs by the time
today's regulations go into effect and
States begin issuing the next round of
CAFO permits that reflect these
regulations. Thus, PNPs won't be
expected to be developed before 2005.
The issue of CNMP preparer
requirements was also discussed by lie
SERs and SBAR Panel during the
SBREFA outreach process. (Note that at
that time, EPA was still using the term
CNMP to apply to regulatory as well as
voluntary nutrient management plans.)
Several SERs were concerned that
requiring the use of a certified planner
could significantly increase the cost of
plan development, as well as limit the
operator's influence over the final
product. These SERs felt that, with
adequate financial and technical
assistance, they could write their own
plans and suggested that EPA work to
facilitate such an option through
expanded training and certification of
farmers and provision of a user-friendly
computer program to aid in plan
development. • , .
The Panel recognized the need for
plan preparers to have adequate training
to write environmentally sound plans,
particularly for large operations.
However, the Panel also recognized the
potential burden on small entities of
having to use certified planners,
especially considering the large number
of AFOs and the limited number of
certified planners currently available.
The Panel recommended that EPA work
with USDA to explore ways for small
entities to minimize costs when
developing CNMPs, and indicated that
EPA should continue to coordinate with
other Federal, State and local agencies
in the provision of low-cost CNMP
development services and should
facilitate operator preparation of plans
by providing training, guidance and
tools (e.g., computer programs). EPA
indicated in the Panel Report that it
expected that many operations could
become certified through USDA or land
grant universities to prepare their own
CNMPs.
EPA is requesting comment on the
proposal to require that PNPs be
developed, or reviewed and modified,
by certified planners, and on ways to
structure this requirement in order to
minimize costs to small operators.
b. Submittal of Permit Nutrient Plan
to the Permit Authority.—EPA is
proposing to require that applicants for
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3035
individual permits and operators of new
facilities submitting notices of intent for
coverage under a general permit submit
a copy of the cover sheed and executive
summary of their draft PNP to the
permit authority at the time of
application or NOI submittal.
§ 122.21(i)(l)(iv) and 122.28(b)(2)(ii).
Operators of existing facilities seeking
coverage under a general permit must
submit a notice of final PNP
development within 90 days of seeking
coverage, but are not required to provide
a copy of the PNP to the Permit
Authority unless requested. The -
reporting requirements, including the
notice of PNP development and notice
of PNP amendment, are discussed in
more detail in section VII.E.3 below.
Initial installation of manure control
technologies are significantly less costly
compared to retrofitting existing
facilities, and early development of a
PNP will help to ensure that, when a
new facility is being designed, the
operator is considering optimal control
technologies. In addition, in situations
where individual permits are warranted,
the public interest demands early
review of the PNP, rather than waiting
for its availability after the permit has
been in effect for some time.
EPA is requesting comment on the
proposal to require new facilities
seeking coverage under a general
permit, as well as applicants for
individual permits, to submit a copy of
the cover sheet and executive summary
of their PNP to the permit authority
along with the NOI or permit
application. EPA is further requesting
comment on whether the entire draft
PNP should be submitted along with the
NOI or permit application.
EPA is further requesting comment on
whether, for individual permits, the
PNP, in part or in its entirety, should be
part of the public notice and comment
process along with the permit.
c. Availability of the Permit Nutrient
Plan Information to the Public.—EPA is
proposing to require the operator of a
permitted CAFO to make a copy of the
PNP cover sheet and executive summary
available to the public for review. The
CAFO operator could choose to make
this information directly available to the
public in any of several ways, such as:
(1) maintaining a copy of these
documents at the facility and making
them available to the permit authority as
publicly viewable documents upon
request; (2) maintaining a copy of these
documents at the facility and making
them available directly to the requestor;
(3) placing a copy of them at a publicly
accessible site, such as at a public
library; or (4) submitting a copy of them
to the permit authority. EPA is
proposing that, if the operator has not
made the information available by other
means, the permit authority would be
required, upon request from the public,
to obtain a copy of the PNP cover sheet
and executive summary and make them
available. It is important to ensure that
the public has access to this
information, which is needed to
determine whether a CAFO is
complying with its permit, including
the land application provisions.
EPA is also considering adding a
provision in the final rule that would
state that all information in the PNP, not
just the cover sheet and executive
summary, must he publicly available
and cannot be claimed as confidential
business information. Some
stakeholders have claimed that all or a
portion of the PNPs should be entitled
to protection as confidential business
information (CBI). EPA does not believe
that the PNP cover sheet or executive
summary would ever contain
confidential business information. The
information in these two sections of the
plan is simply too general ever to be
considered as CBI. However, EPA is
sensitive to the concerns of CAFOs that
there may be information in the
remaining, more detailed portions of the
PNP that is legitimately proprietary to
the CAFOs' businesses and that the
permit authorities should therefore
protect. We therefore request comments
on whether the final rule should require
the entire PNP to be publicly available,
or alternatively, whether the CAFO
should be able to make a confidentiality
claim as to the remaining information in
the PNP. Any such claim of
confidentiality would be governed by
EPA's regulations at 40 CFR, Part 2 and
relevant statutes.
There would be two bases on which
EPA could base a determination that'no
portion of the Permit Nutrient Plans
would be entitled to CBI status. First,
CWA Section 402(j) states that "[a] copy
of each permit application and each
permit issued under this section shall be
available to the public." It may be that
the PNPs that would be required by
today's proposal are properly viewed as
a part of the CAFO's NPDES permit. The
permits would require each CAFO to
develop and carry out a PNP, as
specified in the proposed Part 122
regulations. In addition, today's
proposed effluent limitations guidelines
would specify detailed requirements
that PNPs must meet. Failure to develop
and properly carry out a PNP would be
enforceable under each permit as a
permit violation. Therefore, for
purposes of Section 402(j), EPA may
conclude that PNPs are properly viewed
as a part of the permit or permit
application and, accordingly, must be
available to the public.
EPA issued a "Class Determination"
in 1978 that addresses this issue. See
"Class Determination 1-78" (March 22,
1978) (a copy of which is in the public
record for today's proposal). This Class
Determination addressed how to
reconcile Section 402 (j) of the Clean
Water Act with Section 308 of the Act.
Section 308, which authorizes EPA to
collect information, states that
information obtained under that section
shall be available to the public, except
upon a showing satisfactory to the
Administrator that the information, if
made public, would divulge methods or
processes entitled to protection as trade
secrets. Upon such a showing, the
Administrator shall protect that
information as confidential. Section 308
makes an exception for "effluent data,"
which is not entitled to such protection.
This Class Determination concludes
that information contained in NPDES
permits and permit applications is not
entitled to confidential treatment
because Section 402(j) mandates
disclosure of this information to the
public, notwithstanding the fact that it
might be trade secrets or commercial or
financial information. Referring to the
legislative history of the CWA, the Class
Determination notes that Congress
sought to treat the information in
permits and permit applications
differently from information obtained
under Section 308. It concludes that
Congress intended Section 402(j) to be
a disclosure mandate in contrast to the
basic approach of Section 308, which
provides protection for trade secret
information. (Class Determination at pp.
2-4.) Therefore, consistent with the
Class Determination, if EPA were to
conclude that the PNPs are a part of the
permit, the entire PNP would be a
public document that would not be
entitled to confidentiality protection.
A second basis for finding that PNPs
. must be available to the public would be
that, even apart from Section 402(j), the
information in PNPs may be "effluent
data" and if so, also would not be
entitled to protection under Section 308.
EPA's regulations define the term
"effluent data," among other things, as
"[i]nformation necessary to determine
the identity, amount, frequency, _,
concentration, temperature, or other
characteristics (to the extent related to
water quality) of any pollutant which
L discharged by the source (or
of
has been a- —_,
any pollutant resulting from any
discharge from the source), or any
combination of the foregoing." 40 CFR
2;302(a)(2)(i). There is a limited
exception for information that is related
to research and development activities.
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EPA believes that the information in
PNPs may fit this definition of "effluent
data." The information in PNPs has
direct bearing on the amount of
pollutants that may be discharged by a
CAFO and on characteristics of the
pollutants that may be discharged (such
as the identity and presence of
nutrients) that would be related to water
quality.
On the other hand, the Agency could
conclude that the information in the
PNP is not part of the CAFO's permit.
Each permit would indeed require the
CAFO to develop and carry out a PNP
that is approved by a certified specialist.
Nevertheless, the CAFO will be
developing the terms of the final PNP,
as well as periodic modifications to the
PNP, outside of the permitting process.
It may be appropriate not to consider
the PNP to be part of the permit for
purposes of section 402(j). If 402(j)—
which states that all information in the
permit must be publicly available—is
therefore not a relevant provision, then
whether PNPs could be protected as ,,
confidential would be determined under
section 308.
Section 308, as noted above, allows
information to be protected as GBI
where the submitter can demonstrate
the trade secret nature of the
information to the satisfaction of the
Administrator, except that "effluent
data" is never confidential. EPA could
find that the information in PNPs is not
"effluent data." That is, EPA could
conclude that the information in PNPs
primarily concerns operational practices
at the facility and does not have enough
of a bearing on the characteristics of
pollutants in the effluent to be
considered "effluent data." Because it
would not be "effluent data," the PNP
information would not be categorically
excluded from being treated as
, confidential. EPA's regulations at 40
CFR Part 2 specify the procedures for
parties to make case-specific claims that
information they submit to EPA is
confidential and for EPA to evaluate
those claims. Consistent with these
regulations, each CAFO could claim that
the information in its PNP is
confidential (except for the cover sheet
and executive summary). EPA would
evaluate these claims and determine in
each case whether the CAFO's CBI
claim should be approved or denied. In
sum, EPA could adopt final regulations
that would require a CAFO's CBI claims
for the more detailed information in the
remaining parts of the PNP to be
decided in each case.
The Agency notes that EPA itself
would, of course, always be able to
request and review the CAFO's full
PNP. The issues raised in this
discussion concern only the availability
of these plans to outside parties.
EPA requests comments on all aspects
of this proposal, including whether it
would be proper to determine that the
full PNP must be publicly available
under CWA Section 402(j) and under
CWA Section 308 as "effluent data."
EPA also requests comments on whether
the cover sheet and executive summary
should always be made available to the
public, as proposed, or whether there
are elements of the cover sheet or
executive summary that might
appropriately be claimed as CBI, and
not considered to be either part of the
permit or "effluent data."
The PNP would be narrower than the
CNMP and would contain only
requirements that are necessary for
purposes of the effluent guideline. A
CNMP may contain other elements that
go beyond the effluent guideline. EPA is
not proposing any separate
requirements for CNMPs themselves to
be made publicly available and is not
proposing any findings as to whether
information in a CNMP may be
confidential.
2. What are the Effluent Limitations in
the Permit?
The effluent limitations section in the
permit serves as the primary mechanism
for controlling discharges of pollutants
to receiving waters. This section
describes the specific narrative or
numeric limitations that apply to the
facility and to land application. It can
contain either technology-based effluent
limits or water quality-based effluent
limits, or both, and can contain
additional best management practices,
as needed.
a. What Technology Based Effluent
Limitations Would be in the Permit?
Under the two-tier structure, for CAFOs
with 500 AU or more, the effluent
guidelines and standards regulations [40
CFR 412] would establish the
technology-based effluent limitations to
be applied in NPDES permits. Under the
three-tier structure, any operation
defined as a CAFO would be subject to
the revised effluent guidelines. The
proposal to revise the effluent
guidelines and standards regulation is
described in section VIII of today's
proposed rule.
Operations with fewer than 500 AU
under the two-tier structure, or fewer
than 300 AU under the three-tier
structure, which have been designated
as CAFOs by the permit authority would
not be subject to the effluent guidelines
and standards. For these CAFOs, the
permit writer would use "Best
Professional Judgement," or BPJ, to
establish, on a case-by-case basis, the
appropriate technology-based
requirements. Often, permit writers
adopt requirements similar to, or the
same as tie effluent guidelines
requirements.
b. What Water Quality-based Effluent
Limitations Would be in the Permit?
Section 301(b)(i)(C) of the Clean Water
Act requires there to be achieved "any
more stringent limitation, including
those necessary to meet water quality
standards." Therefore, where
technology-based effluent limitations
are not sufficient to meet water quality
standards, the permit writer must
develop more stringent water quality-
based effluent limits. Under today's
proposal, the permit writer must
include any more stringent effluent
limitations for the waste stream from the
production area as necessary to meet
water quality standards. If necessary to
meet water quality standards, permit
writers may consider requiring more
stringent BMPs (e.g., liners for lagoons
to address a direct hydrologic
connection to surface waters; covers for
lagoons to prevent rainwater from ,
causing overflows; allowing discharges
only from catastrophic storms and not
from chronic storms; pollutant limits in
the overflow; particular treatments, such
as grassed waterways for the overflows
discharged; etc.).
If EPA chose to promulgate one of the
options discussed in section VII.D.'2
above under which the agricultural
storm water discharge exemption did
not apply to land application areas
under the operational control of a
permitted CAFO, then the permit writer
would be required to establish water
quality-based effluent limits where
necessary to meet water quality
standards. If EPA chose to promulgate
the option described in section VE.D.2
above, under which the appropriate
rates and practices identified in the
effluent guidelines and the NPDES.
regulations established the scope of the
term "agriculture" without additional
consideration of water quality imparts
or water quality standards, only the
limitations and practices required by the
effluent guidelines and the NPDES
regulations could be required by the
permit authority for land application
discharges.
c. What Additional Best Management
Practices Would be in the Permit?
Under § 122.44(k)(4) of the existing
NPDES regulations, permit writers may
include in permits best management
practices "that are reasonably necessary
to achieve effluent limitations and
standards or to carry out the purposes
and intent of the CWA." Under today's
proposal, the permit writer may include
BMPs for land, application areas in
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addition to those required by the
effluent guidelines, as necessary to
prevent adverse impacts on water
quality. As discussed in section VII.D.2
above, EPA is today defining proper
agricultural practices required to qualify
for the agricultural storm water
discharge exemption to include
practices necessary to minimize adverse
water quality impacts. Therefore, if a
permit writer determines that despite
the implementation of the BMPs
required by the effluent guidelines
discharges from a CAFO will have
adverse water quality impacts, the
permit writer should impose additional
BMPS designed to minimize such
impacts.
3. What Monitoring and Reporting
Requirements are Included in the
Permit?
The section of the NPDES permit on
monitoring and reporting requirements
identifies the specific conditions related
to the types of monitoring to be
performed, the frequencies for collecting
samples or data, and how to record,
maintain, and transmit the data and
information to the permit authority.
This information allows the NPDES
. permit authority to determine
compliance with the permit
requirements. •
As described in section VIII, today s
proposed revisions to the effluent
guidelines would require the operator to
conduct periodic visual inspection and
to maintain all manure storage and
handling equipment and structures as
well as all runoff management devices.
See proposed § 412.33(c). The NPDES
permit would also require the permittee
to: (1) test and calibrate all manure
application equipment annually to
ensure that manure is land applied in
accordance with the proper application
rates established in the NPDES permit;
(2) sample manure for nutrient content
at least once annually, and up to twice
annually if manure is applied more than
once or removed to be sent off-site more
than once per year; and (3) sample soils
, for phosphorus once every three years.
Today's proposed effluent guidelines
would also require the operator to
review the PNP annually and amend it
if practices change either at the
production area or at the land
application area, and submit
notification to the permit authority.
Examples of changes in practice
necessitating a PNP amendment
include: a substantial increase in animal
numbers (e.g., more than 20 percent)
which would significantly increase the
• volume of manure and nutrients
produced on the CAFO; a change in the
cropping program which would
significantly alter land application of
animal manure and wastewater;
elimination or addition of fields
receiving animal waste application; or
changes in animal waste collection,
storage facilities, treatment, or land
application method.
As discussed in section VILE.l.c
above, CAFO operators would be
required to submit their PNPs, as well
as any information necessary to
determine compliance with their PNPs
and other permit requirements, to the
permit authority upon request. The
CAFO operator could make a copy of
the cover sheet and executive summary
of the PNP available to the public in any
of several ways. Operators of new
facilities seeking coverage under a
general permit and applicants for
individual permits would be required to
submit a copy of their draft PNP to the
permit authority at the time of NOI
submittal or application.
EPA is also proposing to require
operators to submit a written
notification to the permit authority,
signed by the certified planner, that the
PNP has been developed or amended,
and is being implemented, accompanied
by a fact sheet summarizing certain
elements of the PNP. See
§ 412.31(b)(l)(ii). This written notice of
PNP availability would serve an
important role in verifying that the
permittee is complying with one of the
requirements of the NPDES permit. EPA
is proposing that the PNP notification
and fact sheet contain the following
information:
• The number and type of animals
covered by the plan
• The number of acres to which manure
and wastewaters will-be applied
• The phosphorus conditions for those
fields receiving the manure
• Nutrient content of the manure
• Application schedule and rate
• The quantity to be transferred off-site
• Date PNP completed or amended
!» Key implementation milestones
4. What are the Record Keeping
Requirements?
The record keeping requirements
section of the permit specifies the types
of records to be kept on-site at the
permitted facility.
Operation and Maintenance of the
CAFO. As described in section VIII of
today's proposal, EPA is proposing to
require operators to maintain records at
:the facility that document: (1) the visual
inspections, findings, and preventive
maintenance; (2) the date, rate, location
and methods used to apply manure and
wastewater to land under the control of
the CAFO operators; (3) the transfer of
the CAFO-generated manure off-site; (4)
the results of annual manure and
wastewater sampling and analyses to
determine the nutrient content; and (5)
the results of representative soil
sampling and analyses conducted at
least every three years to determine
nutrient content.
Transfer to Off-site Recipients of
CAFO Manure. As described in Chapter
IV.B and V.B, inappropriate land
application of CAFO-generated manure
poses a significant risk to water quality.
Further, EPA estimates that the majority
of CAFO-generated manure is in excess
of CAFO's crop needs, and will very
likely be transferred off-site. The
ultimate success of the CAFO program
depends on whether recipients handle
manure appropriately, and in a manner
that prevents discharge ,to waters. As
discussed fully in section VII.D.4, EPA
is not proposing to regulate off-site
recipients through CAFO permit
requirements, however, EPA believes
that the certification and record-keeping
requirements described here will help to
ensure responsible handling of manure.
Thus, EPA is co-proposing additional
record keeping requirements under the
NPDES program.
Under one co-proposed option, EPA
would require that owners or operators
of CAFOs obtain from off-site land
appliers a certification that, if land
applying CAFO-generated manure, they
are doing so at proper agricultural rates.
In addition, the CAFO owner or
operator would be required to maintain
records of transfer, including the name
of the recipient and quantity transferred,
and would be required to provide the
recipient with an analysis of the
contents of the manure and a brochure
describing the recipient's
responsibilities for proper management
of the manure.. Under another co-
proposed option, EPA would not require
the certification, but would require the
CAFO owner or operator to keep records
and provide information.
Certification Option. Under one
option, EPA is proposing that CAFOs
obtain a certification and that recipients
of CAFO-generated manure so certify,
pursuant to § 308 of the CWA. Under
§ 308, EPA has the authority to require
the owner or operator of a point source
to establish and maintain records and
provide any information the Agency
reasonably requires. The Agency has
documented historic problems
associated with over application of
CAFO manure and wastewater by both
CAFO operators and recipients of CAFO
manure and wastewater. Today's
proposal would establish effluent
limitations designed to prevent
discharges due to over application. In
order to determine whether or not
CAFOs are meeting the effluent
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limitations which would be established
under today's proposals, EPA believes it
is necessary for the Agency to have
access to information concerning where
a CAFO's excess manure is sent.
Furthermore, in order to determine
whether or not the recipients of CAFO
manure should be permitted (which
may be required if they do not land
apply the CAFO manure in accordance
with proper agricultural practices and
they discharge from a point source, see
section Vn.D.2), EPA has determined
that it will be necessary for such
recipients to provide information about
their land application methods.
Recipients who certify that they are
applying manure in accordance with
proper agricultural practices as detailed
in section VII.D.2 are responding to a
request under Section 308 of the CWA.
Therefore, a recipient who falsely
certifies is subject to all applicable civil
and criminal penalties under Section
309 of the CWA.
In some cases, CAFOs give or sell
manure to many different recipients,
including those taking small quantities,
and this requirement could result in an
unreasonable burden. EPA is primarily
concerned with recipients who receive
and dispose of large quantities,
presuming that recipients of small
quantities pose less risk of inappropriate
disposal or over-application. To relieve
the paperwork burden, EPA is
proposing that CAFOs not be required to
obtain certifications from recipients that
receive less than twelve tons of manure
per year from the CAFO. The CAFO
would, however, be required to keep
records of transfers to such recipients,
as described below.
The Agency believes that it would be
reasonable to exempt from the PNP
certification requirements recipients
who receive small amounts of manure
from CAFOs. EPA considered
exempting amounts such as a single a
truckfoad per day or a single truckload
per year. EPA decided that an
appropriate exemption would be based
on an amount that would be typically
used for personal, rather than
commercial, use. The exemption in
today's proposal regulation is based on
the amount of manure that would be
appropriately applied to five acres of
land, since five acres is at the low end
of the amount of land that can be
profitably fanned. See, e.g., "The New
Organic Grower," Eliott Coleman (1995).
To determine the maximum amount
of manure that could be appropriately
applied to five acres of land, an average
nutrient requirement per acre of
cropland and pasture land was
computed. Based on typical crops and
national average yields, 160 pounds of
nitrogen and 14.8 pounds of
phosphorous are required annually per
acre. See "Manure Nutrient Relative to
the Capacity of Cropland and
Pastureland to Assimilate Nutrients,"
Kellogg et al (USDA, July, 25, 2000). The
nutrient content of manure was based
on USDA's online software, Manure
Master, available on the world wide web
at http://www2.ftw.nrcs.usda.gov/
ManureMaster/MM21.html.
The nitrogen content of manure at the
time of land application ranges from
1.82 pounds per ton for heifers and
dairy calves to 18.46 pounds per ton for
hens and pullets. Using the low end rate
of 1.82 pounds of nitrogen per ton, 87.4
tons of manure, would be needed for a
typical acre or 439 tons of manure for
five acres in order to achieve the 160
pounds per acre rate. Using the high end
rate of 18.46 pounds of nitrogen per ton,
8.66 tons of manure would be needed
for a typical acre or 43.3 tons of manure
for five acres in .order to achieve the 160
pounds per acre rate. Thus, the quantity
of manure needed to meet the nitrogen
requirements of a five acre plot would
range from 43.3 tons to 439 tons,
depending on the animal type.
The phosphate content ofmanure at
the time of land application ranges from
1.10 pounds per ton for heifers and
dairy calves to 11.23 pounds per ton for
turkeys for breeding. Using the high end
11.23 pound per ton rate for
phosphorous, only about 1.3 tons would
- be needed for an average acre, or 6.5
tons for five acres in order to meet the
14.8 pounds of phosphorous required
annually for a typical acre of crops.
Using the low end i.l pound per ton
rate for phosphorous, about 13.2 tons
would be needed for an average acre, or
66 tons for five acres. Using the
phosphate content for broilers of 6.61
pounds per ton. is more typical of the
phosphate content ofmanure and would
result in 2.23 tons per acre being needed
for an average acre, or 11.2 tons for five
acres.
Clearly, exempting the high end
amount of manure based on nitrogen
content could lead to excess application
of phosphorous. Regulating based on the
most restrictive phosphate requirement
could lead to manure not being
available for personal use.
The exemption is only an exemption
from the requirement that the CAFO
obtain a certification. The recipient
would remain subject to any
requirements of State or federal law to
prevent discharge of pollution to waters
of the U.S.
EPA is proposing to set the threshold
at 12 tons per recipient per year. This
is rounding the amount based on typical
phosphate content. It also allows one
one-ton pick up load per month, which
is consistent with one of the alternative
approaches EPA considered. Recipients
that receive more than 12 tons would
have to certify that it will be properly
managed. EPA is interested in
comments on alternative thresholds for
exempting small quantity transfers by ,
the CAFO from the requirement that
CAFOs receive certifications from the
recipients.
For CAFO owners or operators who
transfer CAFO-generated manure and
wastewater to manure haulers who do
not land apply the waste, EPA is
proposing that the CAFO owner or
operator must: (1) obtain the name and
address of the recipients, if known; (2)
provide the manure hauler with an
analysis of the nutrient content of the
manure, to be provided to the
recipients; and (3) provide the manure
hauler with a brochure to be given to the
recipients describing the recipient's
responsibility to properly manage the
land application of the manure to
prevent discharge of pollutants to
waters of the U.S. The certification form
would include the statement,
"I understand that the information is being
collected on behalf of the U.S.
Environmental Protection Agency or State
and that there are penalties for falsely •
certifying. The permittee is not liable if the
recipient violates its certification."
Concern has been expressed that
many potential recipients of CAFO
manure will choose to forego CAFO
manure, and buy commercial fertilizers
instead, in order to avoid signing such
a certification and being brought under
EPA regulation. The result could be that
CAFO owners and operators might be
unable to find a market for proper
disposal, thereby turning the manure
into a waste rather than a valuable
commodity. EPA requests comment on
this concern.
This alternative is potentially
protective of the environment because
non-CAFO land appliers would be liable
for being designated as a point source in
the event that there is a discharge from
improper land application. EPA's
proposed requirements for what
constitutes proper agricultural practices,
described in VII.D.2 above, would
ensure that CAFO-generated manure is
properly managed.
No Certification Option. In the second
alternative proposal for ensuring proper
management of manure that is
transferred off-site, EPA is not
proposing to require CAFO owners or
operators to obtain the certification
described above. Rather, CAFO owners
or operators would be required to
maintain records of transfer, described
in the following section.
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3039
Concern has been expressed that
many potential recipients of CAFO
manure will choose to forego CAFO
manure, and huy commercial fertilizers
instead, in order to avoid signing such
a certification and being brought under
EPA regulation. The result could be that
CAFO owners and operators might be
unable to find a market for proper
disposal, thereby turning the manure
into a waste rather than a valuable
commodity.
This alternative is potentially • •
protective of the environment because
non-CAFO land appliers would be liable
for being designated as a point source in
the event that there is a discharge from
improper land application. EPA's
proposed requirements for what
constitutes proper agricultural practices,
described in VII.D.2 above, would
ensure that CAFO-generated manure is
properly managed.
Records of Transfer of Manure Off-
site. In both alternative proposals for
whether or not to require CAEO owners
or operators to obtain certifications from-
off-site recipients, EPA is proposing to
require CAFO operators to maintain
records of the off-site transfer of the
GAFO-generated manure and
wastewater, e.g., when manure is sold or
given away for land application on land
not under their operational control, to
ensure the environmentally acceptable
use of the CAFO-generated manure. See
§ 122.23(i)(5). When CAFO-generated
manure is sold or given away to be used
for land application, the specific
manner of land application does not
need to be addressed in the CAFO's
PNP. However, to help ensure the
environmentally acceptable use of the
CAFO-generated manure, the CAFO
operator would be required to do the
following: See § 122.23(j)(4) and (5).
• Maintain records showing the '
amount of manure and/or wastewater
that leaves the operation;
• Record the name and. address of the
recipient(s), including the intended
recipient(s) of manure and/or
wastewater transferred to contract
haulers, if known;
• Provide the recipient(s) with
representative information on the
nutrient content of the manure to be
used in determining the appropriate
.land application rates; and
• Provide the recipient with
information provided by the permit
authority of his/her responsibility to
properly manage the land application of
, the manure to prevent discharge of
pollutants to waters of the U.S.
• [Under one co-proposed option,
obtain and retain on-site a certification
, from each recipient of the CAFO-
generated manure and wastewater that
they will do one of the following: (a)
land apply in accordance proper
agricultural practices as defined in
today's proposal; (b) obtain an NPDES
permit for discharges resulting from
non-agricultural spreading; (c) or utilize
it for other than land application
purposes.]
EPA proposes to require these records
to be retained on-site at the CAFO, and
to be submitted to the permit authority
upon request.
5. What are the Special Conditions and
Standard Conditions in an NPDES
Permit?.
Standard conditions in an NPDES
permit list pre-established conditions
that apply to all NPDES permits, as
specified in 40 CFR 122.41.
The special conditions in an NPDES
permit are used primarily to supplement
effluent limitations and ensure
compliance with the CWA. EPA is
proposing at 40 CFR 122.23 (i) to (k) to
require permit authorities to develop
special conditions that: (a) specify how
the permittee is to calculate the
allowable manure application rate; (b)
specify timing restrictions, if necessary,
on land application of manure and
wastewater to frozen, snow covered or
saturated ground; (c) establish
requirements for facility closure; (d)
specifying conditions for groundwater
with a direct hydrological connection to
surface water; (e) require certification
for off-site transfer of manure and
wastewater (co-proposed with omitting
this requirement). Finally, EPA is
soliciting comment on whether a special
condition should be included regarding
erosion control.
a. Determining Allowable Manure
Application Rate. EPA is proposing that
the permit authority be required to
include a term in the NPDES permit that
establishes the method to be used for
determining the allowable manure
application rate for applying manure to
land under the control of the CAFO
operator. See proposed § 122.23(})(1).
•As described in detail in section VIII,
three methods are available which may
be used to determine the allowable
manure application rate for a CAFO.
These three methods are: (1) the
Phosphorus Index; (2) the Soil
Phosphorus Threshold Level; and (3)
the Soil Test Phosphorus Level.
EPA is proposing to adopt these three
methods from USDA Natural Resource
Conservation Service's (NRCS) nutrient
management standard (Standard 590).
State Departments of Agriculture are
developing State nutrient standards
Which incorporate one of these three
methods. EPA is proposing to require
that each authorized permit authority
adopt one or more of these three
methods as part of the State NPDES
program, in consultation with the State
Conservationist. The permit would
require the permittee to develop the
appropriate land application rates in the
site-specific PNP based upon the State's
adopted method. EPA solicits comment
on whether the special conditions in an
NPDES permit should require permit
authorities to adopt the USDA Natural
Resource Conservation Service's (NRCS)
Nutrient Management Standard
(Standard 590) in its entirety rather than
just the portion that applies to
determining the allowable manure
application rate.
b. Would Timing Restrictions on Land
Application of CAFO-generated Manure
be Required? EPA is proposing to
require that the permit writer include in
the CAFO's NPDES permit regionally
appropriate prohibitions or restrictions
on the timing and methods of land
application of manure where necessary.
See proposed § 122.23(i)(3). The permit
writer would develop the restrictions .
based on a consideration of local crop
needs, climate, soil types, slope and
other factors.
The permit would prohibit practices
that would not serve an agricultural
purpose and would have the potential to
result in pollutant discharges to waters
of the United States. A practice would
be considered not to be agricultural if
significant quantities of the nutrients in
the manure would be unavailable to
crops because they would leach, run off
or be lost due to erosion before they can
be taken up by plants.
EPA considered establishing a
national prohibition on applying CAFO-
generated manure to frozen, snow
covered or saturated ground in today's
proposed effluent guidelines. Disposal
of manure or wastewater to frozen, snow
covered or saturated ground is generally
not a beneficial use for agricultural
pin-poses. While such conditions can
occur anywhere in the United States,
pollutant runoff associated with such
practice is a site specific consideration
and is dependent on a number of
variables, including climate and
topographic variability, distance to
surface water, and slope of the land.
Such variability makes it difficult to
develop a national technology-based
standard that is consistently reasonable,
and does not impose unnecessary cost
on CAFO operators.
While EPA believes that many permit
writers will find a prohibition on
applying CAFO-generated manure to
frozen, snow covered or saturated
' ground to be reasonably necessary to
achieve the effluent limitations and to
carry out the purposes and intent of the
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CWA, EPA is aware that there are areas
where these practices might be allowed
provided they are restricted.
Application on frozen ground, for
example, may be appropriate in some
areas provided there are restrictions on
the slope of the ground and proximity
to surface water. Many States have
already developed such restrictions.
While the proposed regulations would
not establish a national technology-
based limitation or BMP, EPA is
proposing at § 122.23(j)(2) that permit
writers consider the need for these
limits. Permit authorities would be
expected to develop restrictions on
timing and method of application that
reflect regional considerations, which
restrict applications that are not an
appropriate agricultural practice and
have the potential to result in pollutant
discharges to waters of the United
States. It is likely that the operators
would need to consider means of
ensuring adequate storage to hold
manure and wastewater for the period
which manure may.not be applied. EPA
estimates that storage periods might
range from 45 to 270 days, depending
on the region and the proximity to
surface water, and to ground water with
a direct hydrological connection to
surface water. Permit authorities are
expected to work with State agricultural
departments, USDA's Natural Resource
Conservation Service, the EPA Regional
office, and other local interests to
determine the appropriate standard, and
include the standard consistently in all
NPDES permits for CAFOs.
EPA's estimate that storage periods
would range from 45 days to 270 days
is derived using'published freeze/frost
data from the National Oceanic and
Atmospheric Administration, National
Center for Disease Control. For the
purpose of estimating storage
requirements to prevent application to
frozen ground, EPA assumed CAFOs
could only apply manure between the
last spring frost and the first fall frost,
called the "freeze free period". With a
90 percent probability, EPA could also
use a 28 degree temperature threshold to
determine the storage time required,
rounded to the nearest 45 day
increment. This calculation results in 45
days of storage in the South; 225 days
in parts of the Midwest and the Mid-
Atlantic; and as high as 270 days storage
in the Central region.
EPA is soliciting comment on
alternate approaches of prohibiting land
application at certain times or using
certain methods. For example, EPA
might develop a nationally applicable
prohibition against applying manure on
frozen land that is greater than a certain
slope such as 15 percent. EPA is also
interested in whether to prohibit
application to saturated soils.
c. Closure. EPA is proposing to
require permit authorities to require the
CAFO operator to maintain permit
coverage (e.g., after the facility ceases
operation as a CAFO or drops below the
size for being denned as'a CAFO) until
all CAFO-generated manure and
wastewater is properly disposed and,
therefore, the facility no longer has the
potential to discharge. See proposed
§ 122.23(i)(3). Specifically, the permit
writer would need to impose a permit
condition requiring the owner or
operator to reapply for a permit unless
and until the owner or operator can
demonstrate that the facility has no
potential to discharge wastes generated
by the CAFO. This requirement would
be included as a special condition in the
NPDES permits.
EPA considered several options for
ensuring that manure and wastewater
from CAFOs is properly disposed after
the operation terminates or ceases being
a CAFO. Section VII.C.2.g above
discusses the options in detail. In this
proposal, EPA is also proposing to
ensure that permits explicitly address
closure requirements/While EPA is
today proposing to only require ongoing
permit coverage of the former CAFO,
permit authorities are encouraged to
consider including other conditions
such as those discussed in Se'ction
VH.C.2.g above.
EPA is soliciting comment on these
proposed provisions.
d. Discharge to Surface Water via a
Direct Hydrological Connection with
Ground Water. EPA is proposing
requirements to address the serious
environmental harms caused by
discharges from CAFOs to surface
waters via direct hydrologic connection
with ground water. As described in
section V.B.2.a, studies in Iowa, the
Carolinas, and the Delmarva Peninsula
have shown that CAFO lagoons do leak,
and that leaks from lagoons contaminate
ground water and the surface water to
which that ground water is
hydrologically connected, often
severely. EPA believes that it is
reasonable to include a requirement to
ensure that discharges to surface water
via a direct hydrologic connection with
ground water do not occur from CAFOs,
either by requiring the permit applicant
to implement appropriate controls or to
provide evidence that no such
connection exists at the facility.
Section VII.C.2.J of today's preamble
discusses the legal and technical basis
for the proposed ground water controls,
and provides information on tools and
resources available-to permit writers to
make determinations as to whether the
production area of a CAFO may
potentially discharge to surface waters
via direct hydrologic connection with
ground water.
EPA requests comment on the
following proposals.
CAFOs Subject to Effluent Guideline
Requirements for Ground water. EPA is
proposing that, for all CAFOs that are
subject to an effluent guideline that
includes requirements for zero
discharge from the production area to
surface water via direct hydrologic
connection to ground water (all beef and
dairy operations, as well as new swine,
poultry and veal operations), the permit
would require the appropriate controls
and monitoring. See proposed 40 CFR
412.33(a)(3), 412.35(a)(3) and
412.45(a)(3). The permittee would be
able to avoid the requirements by
submitting a hydrologist's report
demonstrating, to the satisfaction of the
permit authority, that the ground water
beneath the production area is not
connected to surface water through a
direct hydrologic connection.
EPA is also requesting comment on
other options for determining which
CAFOs must implement appropriate
monitoring and controls to prevent
discharges from the production area to
hydrologically connected groundwater.
One option would be for EPA to narrow
the rebuttable presumption to areas with
topographical characteristics that
indicate the presence of ground water
that is likely to have a direct hydrologic
connection to surface water. For
example, the final rule could specify
that only CAFOs located in certain
areas, such as an area with certain types
of lithologic settings (e.g., karst,
fractured bedrock, or gravel); or an area
defined by the USGS as a HLRl or
HLR9; or an area with a shallow water
table; would need to either comply with
the groundwater monitoring
requirements and appropriate controls
in the effluent guideline or provide a
hydrologist's statement demonstrating
that there is no direct hydrologic
connection to surface waters. Another
option would be to require States,
through a public process, to identify the
areas of the State in which there is the
potential for such discharges. In those
areas, CAFOs subject to an effluent
guideline that includes requirements to
prevent discharges to surface water via
hydrologically connected ground water
would again need to either comply with
the monitoring requirements and
appropriate controls in the guideline or
provide a hydrologist's statement
demonstrating that there is no
hydrologic connection to surface waters.
Requirements for CAFOs Not Subject
to Effluent Guidelines Ground Water
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3043
Provisions. Certain facilities are not
'subject to today's revised effluent
guideline (412 Subpart C and D) that
includes requirements to prevent
discharges to surface water via
hydrologically connected ground water.
Such CAFOs include: (1) Facilities
below the effluent guideline
applicability threshold that are
designated as CAFOs; (2) existing swine,
poultry and veal operations; and (3)
CAFOs in sectors other than beef, dairy,
poultry, swine and veal. For such
CAFOs not subject to an effluent
guideline that includes ground water
requirements, EPA is proposing that the
permit writer must assess whether the
facility is in an area with topographical
characteristics that indicate the
presence of ground water that is likely
to have a direct hydrologic connection
to surface water. For instance, if the
facility is in an area with topographical
characteristics that indicate the
presence of ground water that is likely
to have a hydrologic connection to-
• surface water, as discussed above, the
permit writer is likely to determine that
there is the potential for a discharge to
surface water via ground water with a
direct hydrologic connection.
For existing swine, poultry, and veal
operations, if the permit writer
determines that pollutants may be
discharged at a level which may cause
or contribute to an excursion above any
State water quality standard, the permit
writer would be required to decide on
a case-by-case basis whether effluent
limitations (technology-based and water
quality-based, as necessary) should be
established to address potential
discharges to surface water via
hydrologically connected ground water.
EPA is proposing that a permittee for
whom the permit authority has made
the above determinations would be
required to comply with those
conditions, or could avoid having those
conditions imposed by providing a
hydrologist's statement that the facility
does not have a direct hydrologic
connection to surface water. 40 CFR
122.23(j)(6) and (k)(5).
For CAFOs not subject to today's
revised effluent guidelines, if the permit
writer determines that there is likely to
be a discharge from the CAFO to surface
waters via a direct hydrologic
connection, the permit writer must
impose technology-based or water
quality-based, or both, effluent
limitations, as necessary. Again,-EPA is
proposing that a permittee for whom the
permit authority has made the above
determinations would be required to
comply with those conditions, or could
avoid having those conditions imposed
by providing a hydrologist's statement
that the facility does not have a direct
hydrologic connection to surface water.
40 CFR 122.23(j)(6) and (k)(5).
EPA is soliciting comments on the
alternative provisions discussed here.
EPA is also requesting comment on the
proposal to place the burden on the
permittee to establish to the satisfaction
of the permitting authority that the
ground water beneath the production
area is not connected to surface waters
through a direct hydrologic connection.
e. Certification JOT Off-site Recipients
of CAFO Manure. EPA is co-proposing
either to include the following
requirement or to omit it. In the
inclusionary proposal, EPA would
require permit writers to include a
special condition in each permit that
requires CAFO owners or operators to
transfer manure off-site only to
recipients who can certify that they will
either: (1) Land apply manure according
to proper agricultural practices, as
defined for off-site land appliers in
today's proposed rule; (2) obtain an
NPDES permit for potential discharges;
or (3) use the manure for purposes other
than land application. EPA proposes to
define the term "proper agriculture
practice" to mean that the recipient
shall determine the nutrient needs of its
crops based on realistic crop yields for
its area, sample its soil at least once
every three years to determine existing
nutrient content, and not apply the
manure in quantities that exceed the
land application rates calculated using
either the Phosphorus Index,
Phosphorus Threshold, or Soil Test
-Phosphorus method as specified in 40
CFR412.13(b)(l)(iv).
EPA is also proposing to allow States
to waive this requirement if the
recipient is complying with the
requirements of a State program that are
equivalent to proposed 40 CFR
412.13(b). '.
f. Erosion Control. EPA is not
proposing to specify erosion controls as
a necessary element of the PNP, but
permit writers should consider whether
. to add special conditions on a case-by-
case basis as appropriate.
As described in previous sections,
EPA recognizes that sediment eroding
from cropland can have a significant
negative impact on surface waters.
While EPA realizes that it is not
possible to completely prevent all
erosion, erosion can be reduced to
tolerable rates. In general terms,
tolerable soil loss is the maximum rate
of soil erosion that will permit
indefinite maintenance of soil
productivity, i.e., erosion less than or
equal to the rate of soil development.
The USDA-NRCS uses five levels of
erosion tolerance ("T") based on factors
such as soil depth and texture, parent
material, productivity, and previous
erosion rates. These T levels are
equivalent to annual losses of about 1—
5 tons/acre/year (2-11 mt/ha/year), with
minimum rates for shallow soils with
unfavorable subsoils and maximum
rates for deep, well-drained productive
soils (from Ag Management Measures).
Options for controlling erosion are: (1)
Implementation of one of the three
NRCS Conservation Practices Standards
for Residue Management: No-Till and
Strip Till (329A), Mulch Till (329B), or
Ridge Till (329C) in the state Field
Office Technical Guide; (2) requiring a
minimum 30 percent residue cover; (3)
achieving soil loss tolerance or "T"; or
(4) following the Erosion and Sediment
Control Management Measure as found
in EPA's draft National Management
Measures to Control Nonpoint Source
Pollution from Agriculture which is
substantially the same as EPA's 1993
Guidance Specifying Management
Measure for Sources of Nonpoint
Pollution in Coastal Waters.
EPA is requesting public comment on
the suitability of requiring erosion
control as a special condition of an
NPDES permit to protect water quality
from sediment eroding from fields
where CAFO manure is applied to
crops. If erosion control is desirable,
EPA is soh'citing comment as to which
method would be the most cost-
efficient.
g. Design Standards for Chronic
Rainfall. In this section, EPA is
soliciting comments on whether
additional regulatory language is needed
to clarify when a discharge is
considered to be caused by "chronic
rainfall." EPA also solicits comment on
whether design standards to prevent
discharges due to chronic rainfall
should be specified in the effluent
limitations or as a special condition in
the NPDES permit.
CAFOs in the beef and dairy sub-
category [412-subpart C] are prohibited
from discharging except during a "25-
year, 24-hour rainfall event or chronic
rainfall" and then only if they meet the
criteria in § 412.13(a)(2). Section
,412.13(a)(2)(i) allows a discharge caused
by such rainfall events only if "(i) The
production area is designed and
constructed to contain all process
wastewaters including the runoff from a
25-year, 24-hour rainfall event; and (ii)
the production area is operated in
accordance with the requirements of
§412.37(a)."
The term "25-year, 24-hour, rainfall
event" is clearly defined in 40 CFR _
412.01(b). In addition, proposed
§412.37(c)(l)(iv) would require all
surface impoundments to have a depth
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marker which indicates the design
volume and clearly indicates the
minimum freeboard necessary to allow
for the 25-year, 24-hour rainfall event. A
discharge may he caused by a 25-year,
24-hour storm when it occurs despite
the fact that the CAFO operator
maintained adequate freeboard.
The term "chronic rainfall" has not
been specifically defined. Generally, a
chronic rainfall event is one that lasts
longer than 24 hours and causes a
discharge from a system that has been
designed, constructed, maintained and
operated to contain all process
wastewaters plus the runoff from a 25-
year, 24-hour rainfall event. Persistent
rainfall over a period longer than 24
hours may overwhelm a system
designed for the 25-year, 24-hour
rainfall event even though such
persistent rainfalls may be expected to
occur more frequently than every 25
years.
In order for a discharge to be
"caused" by chronic rainfall, it would
need to be contemporaneous with the
rainfall. The discharge could not
continue after the event any longer than
is necessary. For example, once a
flooded lagoon has been drawn down to
the level necessary to protect the
integrity of the lagoon (which in no case
should be below the level of the
freeboard necessary for a 25/24-hour
storm), the discharge should cease. If
the lagoon could not then accept
additional waste from the CAFO, no
animals that would contribute waste to
the lagoon should be brought to the
facility until additional capacity can be
generated by properly land applying the
waste or shipping the waste off-site.
A discharge also would not be
considered to be "caused" by the
chronic storm if the operator should
have foreseen the event in time to
properly land apply the waste and
thereby have avoided an overflow or the
need to apply wastes to saturated
grounds. Similarly, a discharge is not
considered to be caused by the chronic
storm if the operator should have
foreseen the event and maintained
adequate facilities for managing the
waste. Although (in the absence of more
specific regulatory requirements)
operators would be responsible for
foreseeing and planning for chronic
rainfall events, they would be liable for
discharges during chronic events only
where they were not reasonable in their
decision regarding what would be
adequate capacity.
An approach that would provide more
certainty to the operator, but place a
greater burden on permitting authorities
would be for EPA to require permit
authorities to specify regionally-specific
minimum free board requirements
necessary to contain runoff from
foreseeable chronic events. For example,
it may be known that, in a given area,
the free board necessary to contain the
runoff from.a 25-year, 24-hour storm
will not be sufficient to contain the run
off that typically accumulates during the
region's rainy season, especially when it
would not be appropriate to draw down
the lagoon by land applying wastes
during that time. La that case, it may be
necessary for the permit writer to
specify a greater freeboard requirement
that would apply to the CAFO at the
beginning of that season. For example,
Nebraska requires CAFOs to be able to
capture the average rainfall for the three
summer months. EPA notes that such
additional permit conditions are already
required where they are necessary to
eliminate potential discharges that
would cause or contribute to violations
of state water quality standards.
Another approach would be to require
the operator to notify the permitting '
authority as soon as it knows that a
discharge will occur or is occurring and
to come to an agreement on how long
the discharge will occur. This approach
has several disadvantages. Because
many facilities located in the same area
may be experiencing the same problem,
permitting authorities may not have the
resources to address several
simultaneous requests. It is not clear
how a disagreement between the
operator and permit authority would be
resolved. Perhaps most importantly, this
approach also does not address the need
to foresee and prepare for such events
in advance of the event.
EPA solicits comment on all of these
approaches for clarifying when a
discharge is considered to be caused by
"chronic rainfall," and whether
technology guidelines are necessary in
either section 412 or 122 to address
discharges due to chronic rainfall.
F. What Type of NPDES Permit is
Appropriate for CAFOs?
NPDES permit authorities can
exercise one of two NPDES permitting
options for CAFOs: general permits or
individual permits. A general NPDES
permit is written to cover a category of .
point sources with similar
characteristics for a defined geographic
area.
1. What Changes Are Being Made to the
General Permit and NOI Provisions?
The majority of GAFOs may
appropriately be covered under an
NPDES general permit because CAFOs
generally involve similar types of
operations, require the same kinds of
effluent limitations and permit
conditions, and discharge the same
types of pollutants.' In the past, about 70
percent of permitted CAFOs have been
permitted under an NPDES general
permit, and EPA expects this trend to
continue. General permits offer a cost-
effective approach for NPDES permit
authorities because they can cover a
large number of facilities under a single
permit. The geographic scope of a
general permit is flexible and can
correspond to political or other
boundaries, such as watersheds. At the
same time; the general permit can also
provide the flexibility for the permittee
to develop and implement.pollution
control measures that are tailored to the
site-specific circumstances of the
permittee. The public has an
opportunity for input during key steps
in the permit development and
implementation process.
EPA is proposing to clarify that
CAFOs may obtain permit coverage
under a general permit. See proposed
§ 122.28(a)(2)(iii). Although section
122.28 currently authorizes CAFOs to be
regulated using a general permit, some
stakeholders have questioned whether
CAFOs fall within the current language
of that section. Today's proposal would
clarify that permit writers may use a
general permit to regulate a category of
CAFOs that are appropriately regulated
under the terms of the general permit.
A complete and timely NOI indicates
the operator's intent to abide by all the
conditions of the permit, and the NOI
fulfills the requirements for an NPDES
permit application. The contents of the
NOI are specified in the general permit.
The current regulation requires NOIs
to include legal name and address of 'the
owner and operator; facility name and
address; type of facility or discharges;
and the receiving stream(s). EPA is
proposing to amend § 122.28(b)(2)(ii) to
require, in addition:
• Type and number of animals at the
CAFO
• Physical location, including
latitude and longitude of the production
area '
• Acreage available for agricultural
use of manure and wastewater;
• Estimated amount of manure and
wastewater to be transferred off-site
• Name and address of any other
entity with substantial operational
control of facility
• If a new facility, provide a copy of
.the draft PNP
• If an existing facility, the status of
the development of the PNP
• If an area is determined to have
vulnerable ground water (karst, sandy
soil, shallow water table, or in a
hydrological landscape region 1 (HLRl),
submit a hydrologist's statement that the
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3043
ground water under the production area
of the facility is not hydrologically
connected to surface water, if the
applicant asserts as such
• Provide a topographic map as
described in 40 CFR 122.21(f)(7),
showing any ground water aquifers and
depth to ground water that may be
hydrologically connected to surface
water
• § 122.21(f) requires the applicant to
submit a topographic map extending
one mile beyond the facility's boundary
that shows potential discharge points
and surface water bodies in the area.
EPA is proposing to include a
requirement that the operator also
identify on. the topographic map any
ground water aquifers that may be
hydrologically connected to surface
water, as well as the depth to ground
water.
EPA is proposing to require permit
authorities to make the NOT and the
notification of PNP development or
amendment available to the public and
other interested parties in a timely
'manner, updated on a quarterly basis.
See proposed § 122.23(j)(2). EPA
encourages States to develop and use
Internet-based sites as a supplemental
means to provide ready public access to
CAFO NPDES general permits, facility
NOIs, and other information.
EPA will explore ways to adapt the
Permit Compliance System, EPA's
national wastewater database, so that
permit authorities may use it to track
CAFO compliance information. This
information might include: NPDES
permit number; facility name; facility
location; latitude and longitude of the
production of area; animal type(s);
number of animals; the name and
address of the contract holder (for
contract operations); PNP date of
adoption or, where a PNP has not yet
been developed, the schedule for
developing and implementing the PNP,
including interim milestones.
EPA is proposing to clarify that
CAFOs may obtain permit coverage
under a general permit. See proposed
§ 122.28(a)(2)(iii), which would
expressly add "concentrated animal
feeding operations" to the list of sources
that are eligible for general permits. In
fact, CAFOs are already eligible for
general permits under the existing
regulations at § 122.28(a)(2), both
because they are storm water point
sources (see subsection (a)(2)(i)) and
because they are a category of point
sources that involve the same or
substantially similar types of operations,
may be more appropriately controlled
under a general permit than under
individual permits, and otherwise meet
the criteria of subsection (a)(2)(ii). Some
stakeholders, however, have questioned
whether CAFOs meet these existing
criteria for general permit eligibility.
Therefore, to remove any such questions
among stakeholders, EPA is proposing
to expressly add CAFOs to the list of
sources that are eligible for general
permits. In sum, this proposed change
would be for purposes of clarity only; it
'would effect no substantive change to
the regulations.
2. Which CAFOs May Be Subject to
Individual Permits?
Although EPA is not proposing to
require NPDES individual permits in
particular circumstances, the Agency is
proposing additional criteria for when
general permits may be inappropriate
for CAFOs. See proposed
§ 122.28(b)(3)(i)(G). Under the existing
regulation, the public may petition the
permit authority when it believes that,
based on the criteria in section
122.28(b)(3)(i), that coverage under a
general permit is inappropriate. Finally,
EPA is proposing to require the permit
authority to conduct a public process for
determining which criteria, if any,
would require a CAFO.owner or
operator to apply for an individual
permit. See proposed
§ 122.28(b)(3)(i)(G). Permit authorities
would be required to conduct this
public process and set forth its policy
prior to issuing any general permit for
CAFOs. Permit authorities would have
flexibility as to how to conduct this
public process.
Besides requiring a public process to
develop criteria for requiring individual
permits, the proposed regulation would
also add the following CAFO-specific
criteria for when the Director may
require an individual permit: (1) CAFOs
located in an environmentally or
ecologically sensitive area; (2) CAFOs
with a history of operational or
compliance problems; (3) CAFOs that
are exceptionally large operations as
determined by the permit authority; and
(4) significantly expanding CAFOs. See
proposed § 122.28(b)(3)(i)(G)(i)-(iv).
Any interested member of the public
may petition the Director to require an
individual permit for a facility covered
by a general permit. Section
122.28(b)(3).
EPA believes these criteria on the
availability of general permits for
CAFOs are desirable because of keen
public interest in participating in the
process of issuing permits to CAFOs.
The public may participate in notice
and comment during the development
of general permits, but once issued,
public participation regarding facilities
submitting notices of intent is limited.
On the other hand, the public does have
access to notice and comment
participation with regard to individual
permits.
EPA considered requiring all CAFOs,
or all new CAFOs, to obtain an
individual permit, but considered this
potentially burdensome to permit
authorities. Using general permits to
cover classes of facilities by type of
operation, by jurisdiction, or by
geographic boundary such as a
watershed, offers positive
environmental as well as administrative
benefits.
EPA also considered identifying a
threshold to establish when
exceptionally large facilities would be
required to apply for an individual
permit, such as 5,000 AU or 10,000 AU,
or by defining such a threshold as the
largest ten percent or 25 percent of
CAFOs within each sector. EPA did not
propose this approach because, as
shown in table 7-9, it was difficult to
establish a consistent basis across
sectors for making this determination.
While EPA's cost models assume that
30% of operations might obtain
•individual permits, and thus such
thresholds are taken into account in the
cost analyses for this proposed
regulation, EPA did not believe
particular thresholds would be
appropriate across all sectors or all
states. EPA is interested in comments on
whether it should establish a size
threshold above which individual
permits would be required,
recommendations of what the threshold
should be, and data to support such
recommendations.
TABLE 7-9. POTENTIAL DEFINITION OF "EXCEPTIONALLY LARGE" FACILITIES
Animal sector
Beef/Heifer
5,000 AU
Head
equivalent
5,000
10,000 AU
Head
equivalent
10,000
Top 10% (Est.)
Head
11,000
AU
11,000
Top 25% (Est.)
Head
3,500
AU
3,500
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TABLE 7-9. POTENTIAL DEFINITION OF "EXCEPTIONALLY LARGE" FACILITIES—Continued
Animal sector
Dairv
Veal
Swine ;
Broiler
Layer
Turkey
5,000 AU
Head
equivalent
3500
5000
12,500
' 500 000
500 000
275 000
1 0,000 AU
Head
equivalent
7000
10000
25000
1 000 000
1 000 000
550 000
Top 10'
Head
3 800
1 500
9000
150 000
500000
100000
Xo(Est)
AU
5440
1 500
3600
1 500
5000
1 820
Top 25
• Head
2 170
950
5000
110000
1 80 000
55000
% (Est.)
AU
3 100
950
2 000
1 100
1 800
1 000
Note: Except for beef, these values are interpolations based on best professional judgement.
EPA also considered whether
operations that significantly expand
should be required to reapply for a
permit. Public concern has been
expressed as to whether operations that
significantly expand should be required
to undergo a public process to
determine whether new limits are
necessitated by the expansion. EPA
believes, however, that if the general
permit covers operations similar to the
newly expanded operation, there would
be no basis for requiring an individual
permit. In section VIII above, EPA also
has explained why it would not be
appropriate to classify facilities that
expand their production capacities as
new sources. If a member of the public
believes that the requirements of a
proposed general permit are not
adequate for CAFOs above a certain
size, it should raise that issue when the
permit authority proposes the general
permit and request that it be limited to
certain size operations. As is discussed
above, the public could also petition the
permit authority if it believes that a
specific facility should be covered by an
individual permit.
Under existing regulations the permit
authority may modify a permit if there
are material and substantial alterations
to the permitted facility or activity that
occur after the permit is issued and
justify different permit conditions. 40
CFR 122.62(a)(l). The public would be
able to participate in the permit
modification process to incorporate the
new standards. 40 CFR 123.5(c).
EPA is interested in comment on
whether the above procedures are
adequate to ensure public participation
or whether individual permits should be
required for any of the categories'of
facilities discussed above. Specifically,
EPA is interested in comments on
whether individual permits should be
required for (a) facilities over a certain
size threshold, (b) new facilities; (c)
facilities that are significantly
expanding; (d) facilities that have
historical compliance problems; or (e)
operations that are located in areas with
significant environmental concerns.
3. Demonstrating No Potential to
Discharge
' As described in section VII.C.2.d
above, today's proposal would require
all CAFO owners or operators to apply
for an NPDES permit, based on a
presumption that all CAFOs have a
potential to discharge pollutants to
waters of the U.S. There would,
however, be one exception to this
requirement: A CAFO owner or operator
would not need to apply for a permit if
it received a determination by the
permit authority that the CAFO does not
have a potential to discharge. It would
be the CAFO owner's or operator's
burden to ask for a "no potential to
discharge" determination and to
support the request with appropriate
data and information. See proposed
§ 122.23(c) and (e).
The term "no potential to discharge"
means that there is no potential for any
CAFO manure or wastewaters to be
added to waters of the United States
from the operation's production or land
application areas, without qualification.
For example, if a CAFO land applies its
manure according to a permit nutrient
plan, it may not claim "no potential to
discharge" status on the basis that it
would have runoff, but any runoff
would be exempt as agricultural storm
water. CAFOs owners or operators
should not be able to avoid permitting
by claiming that they already meet the
land application requirements that
would be in a permit—in this case, the
requirement of zero discharge from land
application areas except for runoff from
properly applied manure and
wastewater (see today's proposed
effluent limitation guidelines).
Moreover, today's proposed effluent
limitation guidelines would include not
only restrictions on the rate of land
application but also a set of best
management practices to further protect
against inadvertent discharges from land
applied manure and wastewater (for
example, the requirement for 100 foot
setbacks, consideration of timing of
application, etc.). EPA's intention
would be to require a permit that
imposes both types of requirements
unless an operation has clearly
established the absence of a potential to
discharge. A CAFO's claim that it
already meets the restrictions on the rate
of land application would not ensure, as
a permit would, that the CAFO has
employed and is continuing to employ
these additional management practices.
Instead, EPA proposes to allow "no
potential to discharge" status in order to
provide relief where there truly is no '
potential for a CAFO's wastes to reach
the waters. This would include, for
example, CAFOs that are far from any
water body, or those that have closed
cycle systems for managing their wastes
and that do not land apply their wastes.
In particular, EPA believes that the act
of land applying its manure and
wastewater would, in many cases, be
enough by itself to indicate that a CAFO
does have a potential to discharge. It
would be very difficult, in general, for
CAFOs that land apply their wastes to
demonstrate that they have no potential
to discharge (although conceivably such
a showing could be made if the physical
features of the site, including lack of
proximity to the waters, slope, etc.
warrant it).
It is only where there is no potential
for a CAFO's wastes to reach the waters
that EPA believes it is appropriate not
to require a permit. Indeed, where a
CAFO has demonstrated that it has no
potential to discharge, it no longer
qualifies as a point source under the Act
(see Section 502(14), which defines
"point source" to include conveyances
such as CAFOs from which pollutants
"are or may be" discharged).
Under today's proposal, the burden of
proof to show that there is no potential
to discharge would be with the CAFO
owner or operator, not the permitting
authority. There would be a
presumption that the CAFO does have
the potential to discharge unless the
CAFO owner or operator has rebutted
this presumption by showing, to the
satisfaction of the permit authority, that
it does not.
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3045
It is not EPA's intention to allow a
broad interpretation of this provision
but, rather, to establish that "no
potential to discharge" is to be narrowly
interpreted and applied by permit
authorities. This provision is intended
to be a high bar that provides an
; exemption only to those facilities that
can demonstrate to a degree of certainty
that they have no potential to discharge
to the waters of the U.S.
• Today's proposal would specify that
an operation that has had a discharge
within the past five years cannot receive
a determination that it has no potential
to discharge. The Agency is not
proposing to specify further the exact
conditions that would indicate that a
facility has no potential to discharge.
1 However, any such demonstration
would need to account for all manure
generated at the facility, specifying how
' the design of the animal confinement
areas, storage areas, manure and •
wastewater containment areas, and land
application areas eliminates any
possibility of discharge to surface waters
or to groundwater with a direct
hydrological connection to surface
water. Further, the CAFO operator must
be able to provide assurance that all
CAFO-generated manure and
wastewater that is transported off-site
are transferred to a recipient that
provides for environmentally
appropriate handling, such as by: (1)
land applying according to proper
agricultural practices as defined in .this
regulation; (2) obtaining an NPDES
permit for discharges resulting from
land application; or (3) having other
• non-land application uses.
If an owner or operator is able to
•demonstrate no potential to discharge at
the production area, but cannot
demonstrate an assurance that manure
transported off-site is being
appropriately disposed of, the facility
would be required to apply for a zero
discharge permit that includes the
: record keeping requirements described
in section VILE, of today's proposal.
EPA requests comment on whether it
should include additional specific
criteria for determining whether a CAFO
has "no potential to discharge," and
what those criteria should be. The
Agency is concerned that without more
specific criteria, this provision could be
subject to abuse. Therefore, EPA is
seeking comment on whether safeguards
are necessary to ensure that only those
CAFOs which truly pose no risk to the
environment are able to avoid
permitting requirements.
The fact that a CAFO owner or
operator submits a request for a
determination that the facility has no
potential to discharge would not change
the deadline to apply for a permit. The
CAFO owner or operator would need to
apply for a permit according to the date
specified in § 122.23(f) unless it receives
a no potential to discharge
determination before that date. It would
be inappropriate, in EPA's view, to
allow otherwise—i.e., to postpone the
deadline to apply for a permit if the
CAFO has not yet received a
determination on its "no potential to
discharge" request. Under that
approach, even CAFOs owners or
operators who could not make a serious
claim of "no potential to discharge"
could apply for such a determination
simply as a way of delaying the
permitting process, and the process
could in fact be delayed if permitting
authorities are faced with large numbers
of such requests. We recognize, that
under the approach we are proposing,
some CAFOs who really do have no
potential to discharge will be forced to
file a complete permit application if
their permitting authority has not ruled
on their request prior to the deadline for
the permit application. However, EPA
expects there to be few such cases, since
we expect relatively few CAFOs to be
able to demonstrate no potential to
discharge; and in light of the problems
of the alternative approach, EPA's
proposed approach seems preferable.
It is important to recognize that if a
CAFO receives a "no potential to
discharge" determination but
subsequently does have a discharge, that
operation would be in violation of the
Clean Water Act for discharging without
a permit. The "no potential to .
discharge" determination would not
identify an operation as forever a non-
point source. To the contrary, there
would be no basis for excluding an
operation from the requirements for
point sources if it meets the criteria for
being a CAFO and has an actual
discharge of pollutants to the waters.
The operation, upon discharging, would
immediately revert to status as a point
source.
EPA is requesting comment on
whether the Director's "no potential to
discharge" determination should be
subject to the same types of
administrative procedures that are
required for the Director's decision to
issue or deny a permit. That is, EPA is
considering a requirement that, before
EPA or the State could issue a final
determination that there is no potential
to discharge, the public would have the
formal right to comment on, and EPA
would have the opportunity to object to
(in authorized States), the Director's
draft determination. These procedures
may be appropriate, for example, in
light of anticipated public interest in the
Director's determination. Alternatively,
EPA requests comment on not requiring
the Director to follow these procedures
for public and EPA input into the
Director's decision. EPA could conclude
that the types of procedures that apply
to permitting decisions are not
appropriate here (since the "no
potential to discharge" determination is
neither the issuance nor denial of a
permit), but that the environment is
sufficiently protected by the fact that
any actual discharge from either the
production or land application areas
would be a violation of the Clean Water
Act. Under this latter interpretation,
EPA would not itself follow the types of
procedures that apply to permit
decisions (such as providing the public
with the formal opportunity to submit
public comments on the Director's draft
decision) and would not require States
to follow those procedures; however,
States could make those procedures
available if they chose, since they would
be more stringent than the procedures
required by EPA. EPA requests
comment on which of these two
alternative approaches to adopt in the
final rule.
It should be noted that under the
three-tier proposal, in some cases
owners of operations in the middle tier
(300 AU to 1,000 AU) would not need
to demonstrate "no potential to
discharge" to avoid a permit because
they would not be defined as CAFOs in
the first instance. That is, if they do not
meet any of the conditions under that
regulatory option for being defined as a
CAFO (insufficient storage and
. containment to prevent'discharge,
production area located within 100 feet
of waters, evidence of discharge in the
last five years, land applying without a
PNP, or transporting manure to an off-
site recipient without appropriate
certification) then they would not be
subject to permitting as CAFOs. (They
could, however, still be subject to
NPDES permitting as other, non-CAFO
types of point sources, as discussed
elsewhere in this preamble.)
4. NPDES Permit Application Form 2B
EPA is proposing to amend the
NPDES permit application form 2B for
CAFOs and Aquatic Animal Production
• Facilities in order to reflect the revisions
included in today's proposed
rulemaking, and in order to facilitate
consideration of the permit application.
EPA is proposing to require applicants
for individual CAFO permits to submit
the following information:
• acreage available for agricultural
use of manure and wastewater;
• estimated amount of manure and
wastewater to be transferred off-site.
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001/Proposed Rules
• name and address of any person or
entity that owns animals to be raised at
the facility, directs the activity of
persons working at the CAFO, specifies
how the animals are grown, fed, or
medicated; or otherwise exercises
control over the operations of the
facility, in other words, that may
exercise substantial operational control.
• provide a copy of the draft PNP.
• whether buffers, setbacks or
conservation tillage are implemented to
protect water quality.
• On the topographic map required
by Form 1, identify latitude and
longitude of the production area, and
identify depth to ground water that may
be hydrologically connected to surface
water, if any.
See,proposed §122.21(i)(l).
The existing Form 2B currently only
requires: whether the application is for
a proposed or existing facility; type and
number of animals in confinement
(open confinement or housed under
roof); number of acres for confinement
feeding; if there is open confinement,
whether a runoff diversion and control
system has been constructed and, if so,
indicate whether the design basis is for
a 10-year, 24-hour storm, a 25-year, 24-
hour storm, or other, including inches;
number of acres contributing to
drainage; design safety factor; name and
official title, phone number, and
signature. In addition, § 122.21(f) of the
current NPDES regulation requires
applicants to submit a topographic map
extending one mile beyond the facility's
boundary that shows discharge points
and surface water bodies in the area.
EPA is proposing to update form 2B
and requests comment on what
information should be required of
applicants for individual permits.
BILLING CODE 6560-50-P
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001 /Proposed Rules
3047
See the Instructions on the reverse.
EPA I.D. NUMBER (copy front Hem 1 of Form 1}
DRAFT-11/00
D 1. Concentrated Animal Feeding Operation
(complete Hems B, C, D, and section II)
D 2. Concentrated Aquatic Animal Production
Facility (complete items B, C, and section III)
D. FACILITY OWNERSHIP
1. Does an entity ottterlhan the applicant direct the activity of persons working at the facility identified in Form 1 O No
andl.B.?
2. Does an entity other than the applicant own the animals at the facility identified in Form 1 and I.B.? D No P Yes
3 Does an entity other than the applicant specify how the animals at the facility identified in I.B. are grown, fed or
medicated? . _ D No
4. If yes was the answer for questions D1, D2, or D3, what is the name and address of the responsible entity?
Responsible Responsible
. Entity Name: '. L_ : Entity Address:, : ,
FORM
2B
NPOE8
EPA
US. ENVIRONMENTAL PROTECTION AGENCY
APPLICATION FOR PERMIT TO DISCHARGE WASTEWATER
CONCENTRATED ANIMAL FEEDING OPERATIONS AND AQUATIC ANIMAL PRODUCTION FACILITIES
Consolidated PemitsF
GENERAL INFORMATION |
A. TYPE OF BUSINESS
B. LEGAL DESCRIPTION OF FACILITY LOCATION
C. FACILITY OPERATION
STATUS
D 1. Existing Facility
O 2. Proposed Facility
D Yes
D Yes
L CONCENTRATED ANIMAL FEEDING/OPERATION CHARACTERISTICS
A. TYPE AND NUMBER OF ANIMALS
1. TYPE
2. ANIMALS'
NO. IN OPEN
CONFINEMENT
NO. HOUSED
UNDER ROOF
C. TOTAL NUMBER OF ANIMALS CONFINED AT THE FACILITY
D. NUMBER OF ACRES FOR CONFINEMENT FEEDING .
B. LAND APPLICATION
1.' How much manure is generated annually by the facility?
tons
2. Is manure generated by the CAFO land applied?
aYes D No
If Yes, how many acres of land under the control of the
applicant are available for applying the CAFOs
manure/wastewater? acres
3. Is manure generated by the CAFO transferred to off-sjte
recipients? o Yes o No.. If yes. what is the estimated
quantity transferred annually? tons
E. IF THERE IS OPEN CONFINEMENT. HAS A RUNOFF DIVERSION AND CONTROL SYSTEM BEEN CONSTRUCTED?
n Yes (complete Items 1,2, & 3 below) n No (go to section IV.)
1. What is the design basis for the control system? n a. 10 year, 24-Hour Storm (specify inches ) n b. 25 year, 24-Hour Storm (specify inches _—)
DC. Other (specify inches and type : _ — )
2. Report the number of acres of contributing drainage. acres.
3. Report the design safely fgetof- .. '. _ :
F. PERMIT NUTRIENT PLAN (PNP)
Has a certified PNP been developed and Is being implemented for the facility? D Yes a No
If yes. the applicant is to include a copy of the PNP with the application.
If No when will the certified PNP be developed and implemented. Date: . A draft PNP must be submitted with this application that, at a
squate land available to the C/"
an alternative to land application that Is being implemented.
minimum,
describes
G. CONSERVATION PRACTICES
Please check any of the following conservation practices that are being implemented at the facility to control runoff and protect water quality.
a Buffers a Setbacks a Conservation Tillage .
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001/Proposed Rules
It CONCENTRATED AQUATIC ANIMAL PRODUCTION FACI1TVCHABACTERISTICS
A. For each outfall give the maximum daily flow, maximum 30-daylkw, and the
long-term average flow.
B. Indicate the total number of ponds, raceways, and similar structures In your
facility.
1. Outfall No.
2. ftoti fusions per di
a. Maximum Daily
b. Maximum 30
Day
1. Ponds
c. Long Term
Average
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. LWtt»^ec^dn>h«aquatksanlnialsheIdaixlfedatyourfacilily. For each species, tfve the total weight produced by your facility per year in pounds^
harvestablawalghtand also we the maximum weight present at any onetime
1. ColdWalerSpecies
, Warm Water Spedi
a. Species
b. HarvestabteWeiomtawKfe)
(1) Total Yearly (2) Maximum
b. HaiveslatJeVVeiqhlfcoi/mfe)
(DTolal Yearly (2) Maximum
=. Reportthetolalpoundsoffoodfedduririgthecalendafmonth of maximum
a«ding.
1. Month
2. Pounds of Food
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001 /Proposed Rules
3049
INSTRUCTIONS
Seneral
Thl» torn must be completed by all applicants who cheek "yes" to Hem II-B
nForml. Notallantoialfeedingoperafionsarli^ifarmsararoquiredtooblaln
JPDES permits. Exduslons are based on size and occurrence of discharge. See
he description of these statutory and regulatory exclusions in the General
nstructtons that accompany Form 1.
species are warm water or cold water, on the production weight per year in
larvestabte pounds, and on the amount of feeding in pounds of food (for cold
water specfes). Also, facilities which discharge less than 30 days peryear, orooty
permit.
Refer to the Form 1 instructions to determine where to file this form.
ton I-A
See the note above and the General Instructions which accompany Form 1 to be
sure that your facility is a 'fconcentrated animal feeding operation" (CAFO).
Item 1-8
Use this space to give a complete legal description of your facilities location
Iteml-C
Check •proposed • if your facility is not now In operation or does not currently meet
the definition of a CAFO in accordance with Ihe.infonnation found in the General
Instructions that accompany Form 1.
Item 1-0
The appScant must answer questions I.D. 1-3 to provide information concerning
whether an entity other than the applicant exercises substantial operational control
over the facility. If the answer is yes to any of the questions contained in Item I.D.
the name and address of the entity are to be provided by the applicant.
Itsmll
Supply all information in item II if you checked (1) in Hem I-A.
rtemll-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.
Use the following categories for types of anmal:
Mature Dairy Cattle; Veal; Cattle (other than mature dairy or veal);
Swine (over 25 kilograms); Swine (less than 25 kilograms); Horses;
Sheep or Lambs; Turkeys; Chickens (Laying Hens/Broilers); Ducks.
Hem II-B
Identify if manure generated by the facility Is to be land applied and the
number of acres, under the controliof the CAFO operator, suitable for
application.
transfer off-site.
ttemll-C
Provide the total number of animals confined at the facility.
Kemll-D
. Do not
include any area used for growing or operating feed.
HtffllME
Check "yes" if any system for collection of runoff has been constructed. Supply the
information under(1), (2), and (3) to the best of your knowledge.
ttomll-F
Provide Information concerning the status of the development of a certified PNP for
the facility. (Note: for new faculties the certified PNP must be included with Form
28.) In ttKJsecaswwtere the certified PNP has not been completed, provide a
draft PNP and an estimated completion date. The draft plan must, at a minimum,
the land appfcation provisions of 40 CFR Part 412 or describe an alternative to
land appfcation that the operator intends to implement. ;
Hem IMS
Item III
Supply all information n Item III if you checked (2) in Hem I-A.
Hemlll-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 dairy flow is the maximum measured flow occurring over a calendar
day. The maximum 30-day flow Is the average of measured daily flows over the
calendarmonthofhlghestflow. The long-term average flow is the average of
me
rtemlll-B
Grvethetotalnumberofdrscretepondsorracewaysinyoufacility. Under-other,"
which results in discharge to waters of the United States.
Itemlll-C
Use names for the receiving water and source of water which correspond to the
map submitted in Item XI of Form 1.
Item III-D
The names of fish 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.
llemlll-E
The value given for maximum monthly pounds of food should be representative of
your normal operation.
KerntV
The Clean Water Act provides for severe penalties for submitting false information
on this application form.
Section 3098(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. Forwrporatfen.byaprinc^alexecutrveoflicerofatleastthelevelof
vice president;
B. ftrapartnershiporsoleproprietorsh^byageneralpartierorthe
proprietor, respectively; or
• C. ForamunidpaBty.State.Fedefal.orotherpublicfaciiy.byeithera
Paper Reduction Act Notice
Tl» Public reporting burden forth!* collection of Information
ee«matedtoaveMge4hwr*perre*ponse. This estimate Includes
time for reviewing Inttructtoni, searching existing data sources,
gathering and maintaining the needed data, and completing and
reviewing the collection of Information. Send comment* regarding
the burden estimate or any other a*pect of thla collection of
Information to the chief, Information Policy Branch (PM-223), U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave, NW,
Washington, DC 20460, and the Office of Information and Regulatory
ARab*, Office of Management and Budget, Washington, DC 20503,
marked Attention: Desk Officer for EPA.
•""DRAFT-11/00""
BILUNQ CODE ssetMKKC Some of these operations represent a activities, base don the risk to water
It is anticipated that as a result of the greater risk to water quality than others, quality, Section G is being proposed to
requirement that all CAFOs have a duty fa orier for the permit writer to add to Form 2B as a screening
to apply, there will be a large number prioritize NPDES permit writing mechanism. Those facilities without
of CAFOs applying for NPDES permits.
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Federal Register/Vol. 66. No. 9/Friday, January 12, 2001 / Proposed Rules
buffers, setbacks, or conservation tillage
potentially pose a greater risk to water
quality; therefore the permit writer
could use this information to develop
and issue NPDES permits to these
facilities on an expedited basis.
. What Changes to the Feedlot
Effluent Limitations Guidelines Are
Being Proposed?
A. Expedited Guidelines Approach
EPA has developed today's proposed
regulation using an expedited
rulemaking process which relies on
communication between EPA, the
regulated community, and other
stakeholders, rather than formal data
and information gathering mechanisms.
At various stages of information
gathering, USDA personnel,
representatives of industry and the
national trade associations, university
researchers, Agricultural Extension
agencies, States, and various EPA offices
and other stakeholders have presented
their ideas, identified advantages and
disadvantages to various approaches,
and discussed their preferred options.
EPA encourages full public
participation in commenting on these
proposals.
B. Changes to Effluent Guidelines
Applicability
1. Who is Regulated by the Effluent
Guidelines?
The existing effluent guidelines
regulations for feedlots apply to
operations with 1,000 AU and greater.
EPA is proposing to establish effluent
guidelines requirements for the beef,
dairy, swine, chicken and turkey
subcategories that would apply to any
operations in these subcategories that
are defined as a CAFO under either the
two-tier or three-tier structure. Also as,
discussed in detail in Section V1I.B.3,
EPA is also requesting comment on an
option under which the effluent
guidelines proposed today would not be
applicable to facilities under 1,000 AU.
Under this approach, AFOs below this
threshold would be permitted based on
an alternate set of effluent guidelines, or
the best professional judgment of the
permit writer. After evaluating public •
comments EPA may decide to consider
this option. At that time EPA would
develop and make available for
comment an analysis of why it is
appropriate to promulgate different .
effluent guidelines requirements or no
effluent guidelines for CAFOs that have
between 300 and 1,000 AU as compared
to the effluent guidelines for operations
with greater than 1,000 AU.
EPA also proposes to establish a new
subcategory that applies to the
production of veal cattle. Veal
production is included in the beef
subcategory in the existing regulation.
However, veal production practices and
wastewater and manure handling are
very different from the practices used at
beef feedlots; therefore, EPA proposes to
establish a separate subcategory for veal.
Under the three-tier structure the
proposed effluent guidelines
requirements for the beef, dairy, swine,
veal and poultry subcategories will
apply to all operations defined as
CAFOs by today's proposal having at
least as many animals as listed below.
200 mature dairy cattle (whether milked
or dry);
300 veal;
300 cattle other than mature dairy cattle
or veal;
750 swine weighing over 55 pounds;
3,000 swine weighing 55 pounds or less;
16,500 turkeys; or
30,000 chickens.
Under the two-tier structure, the
proposed requirements for the beef,
dairy, swine, veal and poultry
subcategories will apply to all
operations defined as CAFOs by today's
proposal having at least as many
animals as listed below.
350 mature dairy cattle (whether milked
or dry);
500 veal;
500 cattle other than mature dairy cattle
or veal;
1,250 swine weighing over 55 pounds;
5,000 swine weighing 55 pounds or less;
27,500 turkeys;,or
50,000 chickens.
EPA is proposing to apply the Effluent
guidelines requirements for the beef,
dairy, veal, swine, chicken and turkey
subcategories, to all operations in these
subcategories that are defined as CAFOs
under either of today's proposed
permitting scenarios. Operations
designated as CAFOs are not subject to
the proposed effluent guidelines.
EPA is proposing to rename the
Effluent Guidelines Regulations, which
is entitled Feedlots Point Source
Category. Today's proposal changes the
name to the Effluent Guidelines
Regulation for the CAFOs Point Source
Category. EPA is proposing this change
for consistency and to avoid confusion
between who is defined as a CAFO
under Part 122 and whether the Effluent
guidelines apply to the operation.
EPA is not proposing to revise the
Effluent guidelines requirements or the
applicability for the horses, sheep and
lambs and ducks subcategories even
though the definition of CAFO for these
subcategories is changing as described
previously in Section VII. These sectors
have not undergone the same level of
growth and consolidation that the odaer
livestock sectors have experienced in
the past 25 years, hi 1992, an estimated
260 farms in these sectors were
potentially CAFOs based on size, and
relatively few of these operations were
expected to maintain horses or sheep in •
confinement. Finally, the CAFOs in
these sectors have not been identified as
significant contributors of wastewater
pollutants that result in water quality
impairment.
EPA has evaluated the technology
options described in this section and
evaluated the economic achievability for
these technologies for all operations
with at least as many animals listed
above for both the two-tier and three-tier
NPDES structures. The technology
requirements for operations defined as
CAFOs under the two-tier structure are
the same requirements for operations
defined as CAFOs under the three-tier
structure. Therefore for the purpose of
simplifying this discussion and
emphasizing the differences in
technology requirements for the various
technology options, the following
discussion will not distinguish between
the two CAFO definition scenarios. For
more discussion of the costs and
differences in costs between the
different CAFO definition scenarios,
refer to Section X of this preamble or the
EA. For discussion of the benefits
achieved for the different technology
options and scenarios, refer to Section
XI of this preamble.
EPA proposes to make the Effluent
guidelines and standards applicable to
those operations that are defined as
• CAFOs as described previously under
Section VII. EPA is not proposing to
apply the Effluent guidelines to those
operations that fall below the proposed
thresholds but are still designated as
CAFOs. As described in Section VII,
EPA anticipates that few AFOs will be
designated as CAFOs and that these
operations will generally be designated
.due to site-specific conditions.
Examples of these conditions could
include, not capturing barnyard runoff
which runs directly into the stream, or
siting open stockpiles of mam ire
inappropriately. EPA believes that
establishing national technology based
requirements for designated CAFOs is
not efficient or appropriate because
historically a small number of facilities
has oeen designated and facilities which
are designated in the future will be
designated for a wide variety of reasons.
EPA believes that a permit will best
control pollutant discharges from those
operations if it is based on the permit
writer's best professiqnarjudgment and
is tailored to address the specific
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001/Proposed Rules
3051
problems which caused the facility to be
designated.
EPA is proposing to make substantial
changes to the applicability for
chickens, mixed animal operations and
immature animals as described below.
Chickens. The current regulations
apply to chicken operations with liquid
manure handling systems or continuous
flow watering systems. Unlimited
continuous flow watering systems have
been replaced by more efficient systems
for providing drinking water to the
birds. Consequently, many state
permitting authorities and members of
the regulated community contend that
the existing effluent 'guidelines do not
apply to most broiler and laying hen
operations, despite the fact that chicken
production poses risks to surface water
and groundwater quality from improper
storage of dry manure, and improper
land application. EPA is proposing to
clarify the effluent guidelines to ensure
coverage of broiler and laying hen
operations with dry manure handling.
The proposed applicability is identical
to the definition of chicken CAFOs
described in Section VII.C.2.f. EPA is
thus proposing to establish effluent
guidelines for chicken operations that
use dry manure handling systems
regardless of the type of watering system
or manure handling system used. EPA is
using the term chicken in the regulation
to include laying hens, pullets, broilers
and other meat type chickens. See
Section VII for more details on the
proposed applicability threshold for
chickens.
Mixed Animal Types. Consistent with
the proposed changes to the definition
of CAFO as described in Section
VII.C.2.b, EPA is proposing to eliminate
the calculation in the existing regulation
that apply to mixed animals operations.
Immature Animals. EPA is proposing
to apply technology based standards to
swine nurseries and to operations that
confine immature dairy cows or heifers
apart from the dairy. EPA currently
applies technology based standards to
operations based on numbers of swine
each weighing over 55 pounds. Modern
swine production has a phase of
production called a nursery that only
• confines swine weighing under 55
pounds. These types of operations are
currently excluded from the technology
based standards, but are increasing in
both number and size. Therefore, EPA
proposes to establish technology based
standards to operations confining
immature pigs. Under the two-tier
structure EPA proposes to establish a
threshold of 5,000 immature pigs or pigs
weighing 55 pounds or less. Under the
proposed three-tier structure operations
that confine between 3,000 and 10,000
immature pigs could be defined as
CAFOs and all operations with more
than 10,000 immature pigs would be
CAFOs. EPA also proposes to establish
requirements for immature heifers when
they are confined apart from the dairy,
at either stand alone heifer operations
similar in management to beef feedlots,
or at cattle feedlots. Therefore EPA
proposes to include heifer confinement
off-site from the dairy under the beef
feedlot subcategory, and today's
proposed technology standards for beef.
feedlots would apply to those stand
alone heifer operations defined as
CAFOs. Also any feedlot that confines
heifers along with cattle for slaughter is
subject to the beef feedlot requirements.
EPA is proposing to establish a new
subcategory for the effluent guidelines
regulations which applies to veal
operations. The existing regulation
includes veal production in the beef
cattle subcategory. EPA is proposing to
create a distinct subcategory for veal
operations because these operations use
different production practices than
other operations in the beef subcategory
however, we are proposing to retain the
sized threshold that pertained to veal
while included in the beef subcategory.
Veal operations maintain their animals
in confinement housing as opposed to
open outdoor lots as most beef feedlots
operate. They also manage their manure
very differently than typical operations
in the beef cattle subcategory. Due in
large part to the diet the animals are fed,
the manure has a lower solids content
and is handled through liquid manure
handling systems, such as lagoons,
whereas beef feedlots use dry manure
handling systems and only collect
storrnwater runoff in retention ponds.
EPA is proposing to define a veal CAFO
as any veal operation which confines
300 veal calves or greater under the
three-tier structure, or 500 veal calves or
greater under two-tier structure.
C. Changes to Effluent Limitations and
Standards
EPA is today proposing to revise BAT
and new source performance standards
for the beef, .dairy, veal, swine and
poultry subcategories. EPA is proposing
to establish technology-based
limitations on land application of
manure to lands owned or operated by
the CAFO, maintain the zero discharge
standard and establish management
practices at the production area..
1. Current Requirements
The existing regulations, which apply
to operations with 1,000 AU or greater,
require zero .discharge of wastewater
pollutants from the production area
except when rainfall events, either
chronic or catastrophic cause an
overflow of process wastewater from a
facility designed, constructed and
operated to contain all process
generated wastewaters plus runoff from
a 10-year, 24-hour event under the BPT
requirements and a 25-year, 24-hour
event under the BAT and NSPS
requirements. In other words,
wastewater and wastewater pollutants
are allowed to be discharged as the
result of a chronic or catastrophic
rainfall event so long as the operation
has designed, constructed and operated
a manure storage and/or runoff
collection system to contain all process
generated wastewater, including the
runoff from a specific rainfall event. The
effluent guidelines do not set discharge
limitations on the pollutants in the
overflow.
2. Authority to Establish Requirements
Based on Best Management Practices
The regulations proposed today
establish a zero discharge limitation and
include provisions requiring CAFOs to
implement best management practices
(BMPs) to prevent or otherwise contain
CAFO waste to meet that limitation at
the production area. The regulations -
also establish non-numeric effluent
limitations in the form of other BMPs
when CAFO waste is applied to land
under the control of the CAFO owner or
operator. For toxic pollutants of concern
in CAFO waste, specifically cadmium,
copper, lead, nickel, zinc and arsenic,
EPA is authorized to establish BMPs for
those pollutants under CWA section
304(e). EPA also expects reductions in
conventional and nonconventional
water pollutants as a result of BMPs. To
the extent these pollutants are in the
waste streams subject to 304(e), EPA has
authority under that section to regulate
them. EPA also has independent
authority under CWA sections 402(a)
and 501{a) and 40 CFR 122.44(k) to
require CAFOs to implement BMPs for
pollutants not subject to section 304(e).
In addition, EPA has authority to
establish non-numeric effluent
limitations guidelines, such as the BMPs
proposed today, when it is infeasible to
establish numeric effluent limits.
Finally, EPA is authorized to impose the
BMP monitoring requirements under
section 308(a).
Production Area. EPA has determined
that the BMPs for the production area
are necessary because the requirement
of zero discharge has historically not
been attained. As described in Section
V, of this preamble, there are numerous
reports of discharges from CAFOs that
are unrelated to storm events which
would be less likely to occur if the
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proposed BMPs described below were
required.
Section 304(e) provides that "[t]he
Administrator, after consultation with
appropriate Federal and State agencies
and other interested persons, may
publish, regulations, supplemental to
any effluent limitations specified under
(b) and (c) of this section for a class or
category of point sources, for any
specific pollutant which the
Administrator is charged with a duty to
regulate as a toxic or hazardous
pollutant under section 1317(a)(l) or
1321 of this title, to control plant site
runoff, spillage or leaks, sludge or waste
disposal, and drainage from raw
material storage which the
Administrator determines are associated
with or ancillary to industrial
manufacturing or treatment process
within such class or category of point
sources and may contribute significant
amounts of such pollutants to navigable
waters." §304(e). There are studies
showing the presence of a number of
listed metals in animal manure.
Numerous sources such as the American
Society of Agricultural Engineers, and
Universities such as North Carolina
State University have acknowledged the
presence of metals in manure. Metals
are present in the manure because they
are added or present in the animal feed.
EPA has estimated metal loadings being
applied to land before and after this
regulation would take effect. Although
the concentration of metals present in
untreated manure are less than the
limits for metals established in EPA's
biosolids regulations (40 CFRPart 503),
EPA still anticipates that there would be
a substantial reduction in pollutant
loadings reaching the edge of the field
through use of the land application
practices included in today's proposal.
See the Development Document for
more discussion.
EPA's authority to require these BMPs
does not require a determination that
the toxics present in CAFO waste are
significant. The federal courts have held
that EPA has extensive authority to
carry out its duties under the Clean
Water Act:
EPA is not limited by statute to the •
task of establishing effluent standards
and issuing permits, but is empowered
by section 501(a) of the Act to prescribe
regulations necessary to carry out its
functions under the Act. 33 U.S.C.
§ 1361(a). It is also clear that permissible
conditions set forth in NPDES permits
are not'limited to establishing limits on
effluent discharge. To the contrary,
Congress has seen fit to empower EPA
to prescribe as wide a range of permit
conditions as the agency deems
appropriate in order to assure
compliance with applicable effluent
limits. 33 U.S.C. § 1342(a)(2); see also
id. § 1314(e). NRDCv. EPA, 822 F.2d
104,122 (D.C. Cir. 1987).
This authority operates independent
of section 304(e). EPA's authority under
section 402(a)(2) to establish NPDES
permit conditions, including BMPs, for
any pollutant when such conditions are
necessary to carry out the provisions of
the statute has been further
implemented through regulations at 40
CFR 122.44(k). Although a requirement
to establish and implement BMPs of the
type proposed in this regulation could
be imposed on a case-by-case basis, EPA
has decided to promulgate this
requirement on a categorical basis for '
those facilities which are CAFOs by .
definition. In light of the more than
twenty years of experience with the
regulation of CAFOs and their failure to
achieve the zero discharge limit
originally promulgated, EPA has
determined that certain management
practices are necessary to ensure that
the zero discharge limit is actually met.
The stated goal of the Clean Water Act
is to eliminate the discharge of
pollutants into the Nation's waters.
CWA section 101(a)(l). EPA has
determined that these BMPs, by
Ereventing or controlling overflows,
saks or intentional diversions, are an
important step toward that goal.
Finally, EPA has authority to impose
monitoring and recordkeeping
requirements under section 308 of the
Act. As described below EPA is
proposing to require that CAFOs
periodically sample their manure and
soils to analyze for nutrient content.
This is necessary to both determine
what is the appropriate rate to land
apply manure and to ensure that the
application rate is appropriate. The
proposed rule would also require
CAFOs to conduct routine inspections
around the production area to ensure
that automated watering lines are
functioning properly, and to ensure that
the manure level for liquid systems is
not threatening a potential discharge.
The CAFO would also maintain records
that document manure application,
including equipment calibration,
volume or amount of manure applied,
acreage receiving manure, application
rate, weather conditions and timing of
manure application, application
method, crops grown and crop yields.
These records will provide
documentation that the manure was
applied in accordance with the PNP and
has riot resulted in a discharge of
pollutants in excess of the agricultural
use. EPA has determined that these
practices are necessary in order to
determine whether an owner or operator
of a CAFO is complying with the
effluent limitation. Establishment and
maintenance of records, reporting, and
the installation, use and maintenance of
monitoring equipment are all
requirements EPA has the authority to
impose. 33 U.S.C. § 1318(a).
Land Application Areas. For the land
application areas of'a CAFO, EPA is
proposing a nonnumeric effluent
limitation consisting of best
management practices. The D.C. Circuit
has concluded that "[w]hen numerical
effluent limitations are infeasible, EPA
may issue permits with conditions
designed to reduce the level of effluent
discharges to acceptable levels." NRDC
v. Costle, 568 F.2d 1369,1380 (D.C. Cir.
1977); 40 CFR 122.44(k)(3). EPA has
determined that it is infeasible to
establish a numeric effluent limitation
for discharges of land applied CAFO
waste and has also determined that the
proposed BMPs are the appropriate ones
to reduce the level of discharge from
land application areas.
The proposed BMPs constitute the
effluent limitation for one wastestream
from CAFOs. The statutory and
regulatory definition of "effluent
limitation" is very broad—"any
restriction" imposed by the permitting
authority on quantities, discharge rates
and concentrations of a pollutant
discharged into a water of the United
States. Clean-Water Act § 502(11), 40
CFR 122.2. Neither definition requires .
an effluent limitation to be expressed as
a numeric limit. Moreover, nowhere in
the CWA does the term "numeric
effluent limitation" even appear and the
courts have upheld non-numeric
restrictions promulgated by EPA as
effluent limitations. See NBDCv. EPA,
656 F.2d 768, 776 (D.C. Cir. 1981)
(holding that a regulation which allows
municipalities to apply for a variance
from the normal requirements of
secondary sewage treatment is an
"effluent limitation" for purposes of
review under § 509(b): "[W]hile the
regulations do not contain specific
number limitations in all cases, their
purpose is to prescribe in technical
terms what the Agency will require of
section 1311(h) permit applicants.").
Thus, the statutory definition of
"effluent limitation" is not limited to a
single type of restriction, but rather
contemplates' a range of restrictions that
may be used as appropriate. Likewise,
the legislative history does not indicate
that Congress envisioned a single
specific type of effluent limitation to be
applied in all circumstances. Therefore,
EPA has a large degree of discretion in
interpreting the term "effluent
limitation," and determining'whether
an effluent limitation must be expressed
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3053
as a numeric standard. EPA has defined
BMPs as "schedules of activities,
prohibitions of practices, maintenance
procedures, and other management
practices to prevent or reduce the
pollution of waters of the United
States.""40 CFR 122.2. A BMP may take
any number of forms, depending upon
the problem to be addressed. Because a
BMP must, by definition, "prevent or
reduce the pollution of waters of the
United States," the practices and
prohibitions a BMP embodies represent
restrictions consistent with the
definition of an effluent limitation set
out in CWA§ 502(11).
Effluent limitations in the form of.
BMPs are particularly suited to the
regulation of CAFOs. The regulation of
CAFOs often consists of the regulation
of discharges associated with storm
water. Storm water discharges can be
highly intermittent, are usually
characterized by very high flows
occurring over relatively short time
intervals, and carry a variety of
pollutants whose nature and extent
varies according to geography and local
land use. Water quality impacts, in turn,
also depend on a wide range of factors,
including the magnitude and duration
of rainfall events, the time period
between events, soil conditions, the
fraction of land that is impervious to
rainfall, other land use activities, and
the ratio of storm water discharge to
receiving water flow. CAFOs would be
required to apply their manure and
wastewater to land in a manner and rate
that represents agricultural use. The
manure provides nutrients, organic
matter and micronutrients which are
very beneficial to crop production when
applied appropriately. The amount or
rate at which manure can be applied to
provide the nutrient benefits without
causing excessive pollutant discharge
will vary based on site specific factors
at the CAFO. These factors include the
crop being grown, the expected crop
yield, the soil types, and soil
concentration of nutrients (especially
phosphorus), and the amount of other
nutrient sources to be applied. For these
reasons, EPA has determined that
establishing a numeric effluent
limitation guideline is infeasible.
EPA has determined that the various
BMPs specified in today's proposed
'• regulation represent the minimum
elements of an effective BMP program.
By codifying them into a regulation of
general applicability, EPA intends to
promote expeditious implementation of
a BMP program and to ensure uniform
and fair application of the baseline
requirements. EPA is proposing only
those BMPs which are appropriate on a
nationwide basis, while giving both .
States and permittees the flexibility to
determine the appropriate practices at a
local level to achieve the effluent
limitations. The BMP's (described
below) that are included in the
proposed technology options are
necessary to ensure that manure and -.
wastewater are utilized for their nutrient
content in accordance with agricultural
requirements for producing crops or
pastures. EPA also believes that the
proposed regulations represent an
appropriate and efficient use of its
technical expertise arid resources that,
when exercised at the national level,
relieves state permit writers of the
burden of implementing this aspect of
the Clean Water Act on a case-by-case
basis.
3. Best Practicable Control Technology
Limitations Currently Available (BPTJ
EPA is proposing to establish BPT
limitations for the beef, dairy, swine,
veal chicken and turkey subcategories.
There are BPT limitations in the existing
regulations which apply to CAFOs with
1,000 AU or more in the beef, dairy
swine and turkey subcategories. BPT
requires that these operations achieve
zero discharge of process wastewater
from the production area excepHn the
event of a 10-year, 24-hour storm'event.
EPA is proposing to revise this BPT
requirement and to expand the
applicability of BPT to all operations
defined as CAFOs in these subcategories
including CAFOs with fewer than 1,000
AU.
The Clean Water Act requires that
BPT limitations reflect the consideration
of the total cost of application of
technology in relation to the effluent
reduction benefits to be achieved from
such applications. EPA considered two
options as the basis for BPT limitations.
Option 1. This option would require
zero' discharge from a facility designed,
maintained and operated to hold the
waste and wastewater, including storm
water, from runoff plus the 25-year 24-
hour storm event. Both this option and
Option 2 would add record keeping
requirements and practices that ensure
this zero discharge standard is met. As
described in Section V there are
numerous reports of operations
discharging pollutants from the.
production area during dry weather.
The reason for these discharges varies
from intentional discharge to poor
maintenance of the manure storage area
or confinement area. EPA's cost models
reflect the different precipitation and
climatic factors that affect an operations
ability to meet this requirement; see
Section X and the Development
Document for further details.
Option 1 would require weekly
inspection to ensure that any storm
water diversions at the animal
confinement and manure storage areas
are free from debris, and daily
inspections of the automated systems
providing water to the animals to ensure-
they are not leaking or spilling. The
manure storage or treatment facility
would have to be inspected weekly to
ensure structural integrity. For liquid
impoundments, the berms would need
to be inspected for leaking, seepage,
erosion and other signs of structural
weakness. The proposal requires that
records of these inspections would be
maintained on-site, as well as records
documenting any problems noted and
corrective actions taken. EPA believes
these inspections are necessary to
ensure proper maintenance of the
production area and prevent discharges
apart from those associated with a storm
event from a catastrophic or chronic
storm.
Liquid impoundments (e.g., lagoons,
ponds and tanks) that are open and
capture precipitation would be required
to have depth markers installed. The
depth marker indicates the maximum
volume that should be maintained
under normal operating conditions
allowing for the volume necessary to
contain the 25-year, 24-hour storm
event. The depth of the impoundment
would have to be noted during each
week's inspection and when the depth
of manure and wastewater in the
impoundment exceeds this maximum
depth, the operation would be required
to notify the Permit Authority and
inform him or her of the action will be
taken to address this exceedance. Closed
or covered liquid impoundments must
also have depth markers installed, with
the depth of the impoundment noted
during each week's inspection. In all
cases, this liquid may be land applied
only if done in accordance with the
permit nutrient plan (PNP) described
below. Without such a depth marker, a
CAFO operator may fill the lagoons
such that even a storm less than a 25-
year, 24-hour storm causes the lagoon to
overflow, contrary to the discharge limit
proposed by the BPT requirements.
An alternative technology for
monitoring lagoon and impound meat
levels is remote sensors which monitor
liquid levels in lagoons or
impoundments. This, sensor technology
can be used to monitor changes in
liquid levels, either rising or dropping
levels, when the level is changing
rapidly can trigger an alarm. These
sensors can also trigger an alarm when
the liquid level has reached a critical
level. The alarm can transmit to a
wireless receiver to alert the CAFO
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owner or operator and can also alert the
permit authority. The advantages of this
type of system is the real time warning
it can provide the CAFO owner or
operator that his lagoon or
impoundment is in danger of
overflowing. It can provide the CAFO
operator an opportunity to better
manage their operations and prevent
catastrophic failures. These sensors are
more expensive than depth markers;
however, the added assurance they
provide in preventing catastrophic
failures may make them attractive to
some operations.
Option 1 would require operations to
handle dead animals in ways that
prevent contributing pollutants to
waters of the U.S. EPA proposes to
prohibit any disposal of dead animals in
any liquid impoundments or lagoons.
The majority of operations have
mortality handling practices that
prevent contamination of surface water.
These practices include transferring
mortality to a rendering facility, burial
in properly sited lined pits, and
composting.
Option 1 also would establish
requirements to ensure the proper land
application of manure and other process
wastes and wastewaters. Under Option
1 land application of manure and
wastewater to land owned or operated
by the CAFO would have to be
performed in accordance with a PNP
that establishes application rates for
manure and wastewater based on the
nitrogen requirements for the crop. EPA
believes that application of manure and
wastewater in excess of the crop's
nitrogen requirements would increase
the pollutant runoff from fields, because
the crop would not need this nitrogen,
increasing the likelihood of it being
released to the environment.
In addition, Option 1 includes a
requirement that manure be sampled at
least once per year and analyzed for its
nutrient content including nitrogen,
phosphorus and potassium. EPA
Believes that annual sampling of manure
is the minimum frequency to provide
the necessary nutrient content on which
to establish the appropriate rate. If the
CAFO applies its manure more
frequently than once per year, it may
choose to sample the manure more
frequently, Sampling the manure as
close to the time of application as
practical provides the CAFO with a
better measure of the nitrogen content of
the manure. Generally, nitrogen content
decreases through volatilization during
manure storage when the manure is
exjposed to air.
The manure application rate
established in the PNP would have to be
based on the following factors: (1) the
nitrogen requirement of the crop to be
grown based on the agricultural
extension or land grant university
recoimnendation for the operation's soil
type and crop; and (2) realistic crop
yields that reflect the yields obtained for
the given field in prior years or, if not
available, from yields obtained for same
crop at nearby farms or county records.
Once the nitrogen requirement for the
crop is established the manure
application rate would be determined
by subtracting any other sources of
nitrogen available to the crop from the
crop's nitrogen requirement. These
other sources of nitrogen can include
residual nitrogen in the soil from
previous applications of organic
nitrogen, nitrogen credits from previous
crops of legumes, and crop residues, or
applications of commercial fertilizer,
irrigation water and biosolids.
Application rates would be based on the
nitrogen content in the manure and
should also account for application
methods, such as incorporation, and
other site specific practices.
The CAFO woum have to maintain
the PNP on-site, along with records of
the application of manure and
wastewater including: (1) the amount of
manure applied to each field; (2) the
nutrient content of manure; (3) the
amount and type of commercial
fertilizer and other nutrient sources
applied; and (4) crop yields obtained.
Records must also indicate when
manure was applied, application
method and weather conditions at the
time of application.
While Option 1 would require manure
to be sampled annually, it would not
require soil sampling and analysis for
the nitrogen content in the soil.
Nitrogen is present in the soil in
different forms and depending on the
form.the nitrogen will have different
potential to move from the field.
Nitrogen is present in an organic form
from to the decay of proteins and urea,
or from other organic compounds that
result from decaying plant material or
organic fertilizers such as manure or
biosolids. These organic compounds are
broken down by soil bacteria to
inorganic forms of nitrogen such as
nitrate and ammonia. Inorganic nitrogen
or urea may be applied to crop or
pasture land as commercial fertilizer.
Inorganic nitrogen is the form taken up
by the plant. It is also more soluble and
readily volatile, and can leave the field
through runoff or emissions. Nitrogen
can also be added to the soil primarily
through cultivation of legumes which
will "fix" nitrogen in the soil. At all
times nitrogen is cycling through the
soil, water, and air, and does not
become adsorbed or built up in the soil
in the way that phosphorus does, as
discussed under Option 2. Thus, EPA is
not proposing to require soil sampling
for nitrogen. EPA would, however,
require that, in developing the
appropriate application rate for
nitrogen, any soil residue of nitrogen
resulting from previous contributions by
organic fertilizers, crop residue or
legume crops should be taken into
account when determining the
appropriate nitrogen application rate.
State Agricultural Departments and
Land Grant Universities have developed
methods for accounting for residual
nitrogen contributed from legume crops,
crop residue and organic fertilizers.
. Option 1 would also prohibit
application of manure and wastewater
within 100 feet of surface waters, tile
drain inlets, sinkholes and agricultural
drainage wells. EPA strongly encourages
CAFOs to construct vegetated buffers,
however, Option 1 only prohibits
applying manure within 100 feet of
surface water and would not require
CAFOs to take crop land out of
production to construct vegetated
buffers. CAFOs may continue to use
land within 100 feet of surface water to
grow crops. Under Option 1, EPA
included costs for facilities to construct
minimal storage, typically three to six
months, to comply with the manure
application rates developed in the PNP.
EPA included these costs because data
indicate pathogen concentrations in
surface waters adjacent to land receiving.
manure are often not significantly
different from pathogen levels in surface
waters near lands not receiving manure
when the manure has been stored and
aged prior to land application. EPA
believes the 100 foot setback, in
conjunction with proper manure
application, will minimize the potential
runoff of pathogens, hormones such as
estrogen, and metals and reduce the
nutrient and sediment runoff.
EPA is aware of concerns that the
presence of tile drain inlets, sinkholes
and agricultural drainage wells may be
widespread in some parts of the
country. This could effectively preclude
manure based fertilization of large areas
of crop land. EPA requests comment on
the presence of such features in crop
land and the extent to which a 100 foot
setback around such features would
interfere with land application of
manure. EPA also requests comment on
how it might revise the setback
requirement to address such concerns
and still adequately protect water
quality.
EPA analysis shows application rates
are the single most effective means of
reducing runoff. Nevertheless, no
combination of best management
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3055
practices can prevent pollutants from
land application from reaching surface
waters in all instances; vegetated buffers
provide an extra level of protection.
Buffers are not designed to reduce
pollutants on their own; proper land
application and buffers work in tandem
to reduce pollutants from reaching
surface waters. Data on the effectiveness
of vegetated buffers indicate that a 35 to
66 foot vegetated buffer (depending
primarily on slope) achieves the most
cost-effective removal of sediment and
pollutants from surface runoff.
However, EPA chose not to propose
requiring operations to take land out of
production and construct a vegetated
buffer because a buffer may not be the
most cost-effective application to
control erosion in all cases. There are a
variety of field practices that should be
considered for the control of erosion.
EPA encourages CAFOs to obtain and
implement a conservation management
plan to minimize soil losses, and also to
reduce losses of pollutant bound to the
soils.
Today's proposal requires a greater
setback distance than the optimum
vegetated buffer distance. Since EPA is
not requiring the construction of a
vegetated buffer, the additional setback
distance will compensate for the loss of
pollutant reductions in the surface
runoff leaving the field that would have
been achieved with a vegetated buffer
without requiring CAFOs to remove this
land from production.
EPA solicits comment on additional
options to control erosion which would,
in turn, reduce the amount of pollutants
reaching waters of the U.S. The options
for controlling erosion include: (1)
implementing one of the three NRCS
Conservation Practice Standards for
Residue Management: No-Till and Strip
Till (329A), Mulch Till (329B), or Ridge
Till (329C) in the state Field Office
Technical Guide; (2) requiring a
minimum 30% residue cover; (3)
achieving soil loss tolerance or "T; or
(4) implementing of the Erosion and
Sediment Control Management Measure
as found in EPA's draft National
Management Measures to Control
Nonpoint Source Pollution from
' Agriculture. This measure is
substantially the same as EPA's 1993
Guidance Specifying Management
Measure for Sources of Nonpoint
Pollution in Coastal Waters which says
to: :
«* * * Apply the erosion control
component of a Resource Management
System (RMS) as denned in the 1993 Field
Office Technical Guide of the U.S.
Department of AgricultureBNational
Resources Conservation Service to minimize
1 delivery of sediment from agricultural lands
to surface waters, or design and install a
combination of management and physical
practices to settle the settleable solids and
associated pollutants in runoff delivered
from the contributing area for storms of up
to and including a 10-year, 24-hour
frequency."
Farmers entering stream buffers in the
Conservation Reserve Program's (CRP)
Continuous' Sign-Up receive bonus
payments, as an added incentive to
enroll, include a 20 percent rental
bonus, a $100 per acre payment up-front
(at the time they sign up), and another
bonus at the time they plant a cover.
These bonus payments more than cover
costs associated with enrolling stream
buffers, (i.e., rents forgone for the
duration of their 10 or 15 year CRP
contracts, and costs such as seed, fuel,
machinery and labor for planting a
cover crop). The bonuses provide a
considerable incentive to enroll stream
buffers because the farmers receive
payments from USDA well in excess of
what they could earn by renting the
land for crop production. Farmers can
enter buffers into the CRP program at
anytime.
EPA may also consider providing
CAFOs the option of prohibiting manure
application within 100 feet or
constructing a 35 foot vegetated buffer.
EPA solicits comment on any and all of
these options.
Option 2. Option 2 retains all the
same requirements for the feedlot and
manure storage areas described under
Option 1 with one exception: Option 2
would impose a BMP that requires
manure application rates be phosphorus
based where necessary, depending on
the specific soil conditions at the CAFO.
Manure is phosphorus rich, so
application of manure based on a
nitrogen rate may result in application,
of phosphorus in excess of crop uptake
requirements. Traditionally, this has not
been a cause for concern, because the
excess phosphorus does not usually
cause harm to the plant and can be
adsorbed by the soil where it was
thought to be strongly bound and thus
environmentally benign. However, the
capacity for soil to adsorb phosphorus
will vary according to soil type, and
recent observations have shown that
soils can and do become saturated with
phosphorus. When saturation occurs,
continued application of phosphorus in
excess of what can be used by the crop.
and adsorbed by the soil results in the
phosphorus leaving the field with storm
water via leaching or runoff.
Phosphorus bound to soil may also be
lost from the field through erosion.
Repeated manure application at a
nitrogen rate has now resulted in high
to excessive soil phosphorus
concentrations in some geographic
locations across the country. Option 2
would require manure application be
based on the crop removal rate for
phosphorus in locations where soil
concentrations or soil concentrations in
combination with other factors indicate
that there is an increased likelihood that
phosphorus will leave the field and
contribute pollutants to nearby surface
water and groundwater. Further, when
soil concentrations alone or in
combination with other factors exceed a
given threshold for phosphorus, the
proposed rule would prohibit manure
application. EPA included this
restriction because the addition of more
phosphorus under these conditions is
unnecessary for ensuring optimum crop.
production.
Nutrient management under Option 2
includes all the steps described under
Option 1, plus the requirement that all
CAFOs collect and analyze soil samples
at least once every 3 years from all fields
that receive manure. EPA would require
soil sampling at 3 year intervals because
this reflects a minimal but common
interval used in crop rotations. This
frequency is also commonly adopted in
nutrient management plans prepared
voluntarily or under state programs.
When soil conditions allow for manure
application on a nitrogen basis, then the
PNP and record keeping requirements
are identical to Option 1. Permit
nutrient plans would have to be
reviewed and updated each year to
reflect any changes in crops, animal
production, or soil measurements and
would be rewritten and certified at a
minimum of once every five years or
concurrent with each permit renewal.
EPA solicits comment on conditions,
such as no changes to the crops, or herd
or flock size, under which rewriting the
plan would not be necessary and would
not require the involvement of a
certified planner.
The CAFO's PNP would have to
reflect conditions that require manure
application on a phosphorus crop
removal rate. The manure application
rate based on phosphorus requirements
takes into account the amount of
phosphorus that will be removed from
the field when the crop is harvested.
This defines the amount of phosphorus'
and the amount of manure that may be
applied to the field. The PNP must also
account for the nitrogen requirements of
the crop. Application of manure on a
phosphorus basis will require the
addition of commercial fertilizer to meet
the crop requirements for nitrogen.
Under Option 2, EPA believes there is
an economic incentive to maximize
proper handling of manure by
conserving nitrogen and minimizing the
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expense associated with commercial
fertilizer. EPA expects manure handling
and management practices will change
in an effort to conserve the nitrogen
content of the manure, and encourages
such practices since they are likely to
have the additional benefit of. reducing
the nitrogen losses to the atmosphere.
EPA believes management practices
that promote nitrogen losses during
storage will result in higher applications
of phosphorus because in order to meet
the crops requirements for nitrogen a
larger amount of manure.must be
applied. Nitrogen volatilization
exacerbates the imbalance in the ratio of
nitrogen to phosphorus in the manure as
compared to the crop's requirement.
Thus application of manure to meet the
nitrogen requirements of the crop will
result in over application of phosphorus
and the ability of the crops and soil to
assimilate phosphorus will reach a
point at which the facility must revise
the PNP to reflect phosphorus based
application rates. EPA solicits comment
on additional incentives that can be
used to discourage those manure
storage, treatment, and handling
practices that result in nitrogen
volatilization.
Under both Option 1 (N) and Option
2 (P), the application of nitrogen from
all sources may not exceed the crop
nutrient requirements. Since a limited
amount of nutrients can be applied to
the field in a given year, EPA expects
facilities will select the site-specific
practices necessary to optimize use of
those nutrients. Facilities that apply
manure at inappropriate times run the
risk of losing the value of nutrients and
will not be permitted to reapply
nutrients to compensate for this loss.
Consequently crop yields may suffer,
and in subsequent years, the allowable
application rates will be lower. For
these reasons, facilities with no storage
are assumed to need a minimal storage
capacity to allow improved use of
nutrients.
Option 2 provides three methods for
determining the manure application rate
for a CAFO. These three methods are:
• Phosphorus Index
• Soil Phosphorus Threshold Level
• Soil Test Phosphorus Level
These three methods are adapted from
NRCS' nutrient management standard
(Standard 590), which is being used by
States' Departments of Agriculture to
develop State nutrient standards that
incorporate one or a combination of
these three methods. EPA is proposing
to require that each authorized state
Permit Authority adopt one of these
three methods in consultation with the
State Conservationist. CAFOs would
then be required to develop their PNP
based on the State's method for
establishing the application rate. In
those states where EPA is the permitting
authority, the EPA Director would adopt
one of these three methods in
consultation with that State's
Conservationist.
Phosphorus Index—This index
assesses the risk that phosphorus will be
transported off the field to surface water
and establishes a relative value of low,
medium, high or very high, as specified
in § 412.33. Alternatively, it may
establish a numeric ranking. At the
present time there are several versions
of the P-Index under development.
Many states are working on a P-Index
for their state in response to the NRCS
590 Standard, and NRCS itself
developed a P-Index template in 1994
and is in the process of updating that
template at the present time. There are
efforts underway in the scientific
community to standardize a phosphorus
index and assign a numeric ranking.
At a minimum the phosphorus index
must consider the following factors:
• Soil erosion
• Irrigation erosion
• Runoff class
• Soil P test
• P fertilizer application rate
• P fertilizer application method
• Organic P source application rate
• Organic P source application method
Other factors could also be included,
such as:
• Subsurface drainage
• Leaching potential
• Distance from edge of field to surface
water
• Priority of receiving water
Each of these factors is listed in a
matrix with a score assigned to each
factor. For example, the distance from
edge of field to surface water assigns a
score to different ranges of distance. The
greater the measured distance, the lower
the score. Other factors may not be as
straightforward. For example, the
surface runoff class relates field slope
and soil permeability in a matrix, and
determines a score for this element
based on the combination of these
factors. The same kind of approach .
could also be used for the subsurface
drainage class, relating soil drainage
class with the depth to the seasonal high
water table. The values for all variables
that go into determining a P-Index can
either be directly measured, such as
distance to surface water, or can be
determined by data available from the
state, such as soil drainage class that is
based on soil types found in the state
and assigned to all soil types. Finally,
each factor is assigned a weight
depending on its relative importance in
the transport of phosphorus.
When a P-Index is used to determine
the potential for phosphorus transport
in a field and the overall score is high,
the operations would apply manure on
a phosphorus basis (e.g., apply to meet
the crop removal rate for phosphorus).
When a P-Index determines that the
transport risk is very high, application
of manure would be prohibited. If the P-
Index results in a rating of low or
medium, then manure may be applied
• to meet the nitrogen requirements of the
crop as described under Option 1.
However, the CAFO must continue to
collect soil samples at least every three
years. If the phosphorus concentration
in the soil is sharply increasing, the
CAFO may want to consider managing
its manure differently. This may include
changing the feed formulations to
reduce the amount of phosphorus being
fed to the animals, precision feeding to
account for nutrient needs of different
breeds and ages of animals. It may also .
include changing manure storage
practices to reduce nitrogen losses.
There is a great deal of research on feed
management, including potential effects
on milk production when phosphorus
in rations fed to dairy cows is reduced,
and the cost savings of split sex and
multistage diets and the addition of or
adding the enzyme phytase to make the -
phosphorus more digestible by poultry
and swine. Phytase additions in the feed
of monogastrics have proven effective at
increasing the ability of the animal to
assimilate phosphorus and can reduce
the amount of phosphorus excreted.
Phytase use is also reported to increase
bioavailability of proteins and essential
minerals, reducing the need for costly
supplemental phosphorus, and reducing
necessary calcium supplements for
layers. The CAFO may also consider
limiting the application of manure. For
example, the CAFO may apply manure
to one field to meet the nitrogen
requirements for that crop but not return
to that field until the crops have
assimilated the phosphorus that was
applied from the manure application.
Phosphorus Threshold—This
threshold which would be developed
for different soil types is a measure .of
phosphorus in the soil that reflects the
level of phosphorus at which
phosphorus movement in the field is
acceptable. Scientists are currently
using a soluble phosphorus
concentration of 1 part per million
(ppm) as a measure of acceptable
phosphorus movement. When the soil
concentration of phosphorus reaches
this threshold the concentration of
phosphorus in the runoff would be
expected to be 1 ppm. The 1 ppm value
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3057
has been used as an indicator of
acceptable phosphorus concentration
1 because it is a concentration that has
been applied to POTWs in their NPDES
permits. An alternative phosphorus
discharge value could be the water
quality concentration for phosphorus in
a given receiving stream.
States which adopt this method in
their state nutrient management
standard would need to establish a
phosphorus threshold for all types of
soils found in their state.
Use of the phosphorus threshold in
developing an application rate allows
for soils with a phosphorus
concentration less than three quarters
the phosphorus threshold to apply
manure on a> nitrogen basis. When soils
have a phosphorus concentration
between 3/4 and twice the phosphorus
threshold then manure must be applied
to meet the crop removal requirements
for phosphorus. For soils which have
phosphorus concentrations greater than
twice the phosphorus threshold, no
manure may be applied.
Soil Test Phosphorus—The soil test
; phosphorus is an agronomic soil test
that measures for phosphorus. This
method is intended to identify the point
at which the phosphorus concentration
in the soil is high enough to ensure
optimum crop production. Once that
concentration range (often reported as a
"high" value from soil testing
laboratories) is reached, phosphorus is
applied at the crop removal rate. If the
soil test phosphorus level reaches a very
high concentration, then no manure
may be applied. Most soils need to be
nearly saturated with phosphorus to
achieve optimum crop yields. The soil
phosphorus concentration should take
into account the crop response and
phosphorus application should be
restricted when crop yield begins to
level off.
The soil test phosphorus method
establishes requirements based on low,
medium, high and very high soil
condition, and applies the same
restrictions to these measures as are
used in the P-Index. States that adopt
this method must establish the soil
concentration ranges for each of these
' risk factors for each soil type and crop
in their state.
EPA anticipates that in most states,
the permit authority will incorporate the
State's nutrient standard (590 Standard)
into CAFO permits. For example, if the
permit authority, in consultation with
the State Conservationist, adopts a
Phosphorus Index, then CAFO permits
would include the entire P-Index as the
permit condition dictating how the
application rate must be developed. If a
permit authority selects the Phosphorus
Threshold, then the CAFO permits must
contain soil concentration limitations
that reflect phosphorus-based
application, as well as the level at
which manure application is prohibited.
Each State Conservationist, in
consultation with land grant university
scientists and the state, must develop a
Phosphorus Index for that state by May
2001. EPA may consider eliminating the
use of the soil phosphorus threshold
level and the soil test phosphorus level
as methods for determining the manure
application rate for a CAFO and
requiring the use of the state
Phosphorus Index. Scientists studying
phosphorus losses from agricultural
lands are supporting the development
and use of the Phosphorus Index since
it combines the factors critical in
determining risk of phosphorus rate and
transport to surface waters, including
the soil phosphorus threshold level,
when developed. EPA is soliciting
comment on this option.
Finally, under Option 2 EPA is
proposing to require CAFOs that
transfer manure off-site to provide the
recipient of the manure with
information as to the nutrient content of
the manure and provide the recipient
with information on the correct use of
the manure. See Section VII.E.4, for a
complete discussion of the requirements
for off-site transfer of manure.
As discussed in Section VI,
compliance costs for manure transfer
assessed to the CAFO include hauling
costs and record keeping. If the
recipient is land applying the manure,
the recipient is most likely a crop
farmer, and the recipient is assumed to
already have a nutrient management
plan that considers typical yields and
crop requirements. The recipient is also
assumed to apply manure and wastes on
a nitrogen basis, so the application costs
are offset by the costs for commercial
fertilizer purchase and application. EPA
assumes the recipient may need to
sample soils for phosphorus, and costs
for sampling identically to the CAFO,
i.e. every three years. EPA has not
accounted for costs that would result
from limiting the amount or way
recipients are currently using manure.
EPA solicits comment .on the impact to
recipients who currently use manure
and may have to change their practices
as a result of this requirement, hi cases
where manure is received for alternative
uses, the recipient is deemed to already
maintain the appropriate records.
EPA solicits comments on whether
there should be required training for
persons that will apply manure. There
are some states which have these
requirements. Proper application is
critical to controlling pollutant
discharges from crop fields. Some states
have establish mandatory training for
persons that apply manure. EPA will
consult with USDA on the possibility of
establishing a national training program
for manure applicators.
Rotational Grazing. At the request of
the environmental community, EPA has
investigated rotational grazing as an
alternative to confinement-based
livestock production. Any pasture or
grazing operation is by definition not a
form of confinement, therefore use of
these practices are outside of the scope
of these regulations.
Intensive rotational grazing is known
by many terms, including intensive
grazing management, short duration
grazing, savory grazing, controlled
grazing management, and voisin grazing
management. This practice involves
rotating livestock and poultry among
several pasture subunits or paddocks,
often on a daily basis, to obtain
• maximum efficiency of the pasture land.
Due to the labor, fencing, water, and
land requirements for intensive
rotational grazing, typically only small
dairy operations with less than 100 head
use this practice. Few beef feedlots
practice intensive rotational grazing.
Poultry on pasture is usually housed in
a portable building or pen holding up to
100 birds that is moved daily; rarely are
more than 1,000 birds in total raised in
this manner. Swine have also been
successfully raised on pasture, most
frequently as a seasonal farrowing
operation in combination with seasonal
sheep or cow grazing. Climate and
associated growing seasons make it very
difficult for operations to use an
intensive rotational grazing system
throughout the entire year. Most dairy
operations and beef feedlots that use
rotational grazing typically operate
between 3 and 9 months of the year,
with 12 months most likely only in the
southern states. Poultry on pasture are
produced for about 6 months, and pigs
are typically farrowed once per year.
Grazing systems are not directly
comparable to confined feeding
operations, as one system can not
readily switch to the other. Intensive
rotational grazing systems are reported
to have advantages over confined
feeding operations: reduced housing
and feed costs, improved animal health,
less manure handling, and more
economic flexibility. Intensive
rotational grazing also encourages grass
growth and development of healthy sod,
which in turn reduces erosion. In a good
rotational system, manure is more
evenly distributed and will break up
and disappear from the surface faster.
Despite-these advantages, studies do
not indicate significant reductions of
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pathogens or nutrients in runoff to
nearby streams as compared to manured
fields. Rotational grazing systems may
still require manure maintenance near
watering areas and paths to and from
the paddock areas. There are also limits
to the implementation of intensive
rotational grazing systems, which are
highly dependent upon: available
acreage, herd size, land resources, labor,
water availability, proximity of pasture
area to milking center for dairy
operations, and feed storage capabilities.
Grazing systems usually produce lower
animal weight gain and milk production
levels, provide limited1 manure handling
options, and do not provide the level of
biosecurity that confinement farms can
obtain.
Proposed Basis for BPT Limitations.
EPA is not proposing to establish BPT
requirements for the beef, dairy, swine,
veal and poultry subcategories on the
basis of Option 1, because it does not
represent the best practicable control
technology. In areas that have high to
very high phosphorus build up in the
soils, Option 1 would not require that
manure application be restricted or
eliminated. Thus, the potential for
phosphorus to be discharged from land
owned or controlled by the CAFOs
would not be controlled by Option 1.
Consequently Option 1 would not
adequately control discharges of
phosphorus from these areas. Option 2
would reduce the discharge of
phosphorus in field runoff by restricting
the amount of phosphorus that may be
applied to the amount that is
appropriate for agricultural purposes or
prohibiting the application of manure
when phosphorus concentrations in the
soil are very high and additional
phosphorus is not needed to meet crop
requirements.
EPA is proposing to establish BPT
limitations for the beef, dairy, swine,
veal and poultry subcategories on the
basis of Option 2 with the exception
that it is co-proposing options with and
without the certification regulations for
off-site land application of manure.
EPA's decision to base BPT limitations
on Option 2 treatment reflects
consideration of the total cost of
application of technology in relation to
the effluent reduction benefits to be
achieved from such application. Option
2 is expected to cost $549 million under
the two-tier structure and achieve 107
million pounds of pollutant reductions
for a total cost to pound ratio of $0.57.
The three-tier structure is estimated to
cost $551 for a total cost to pound ratio
of $0.51.
The Option 2 technology is one that
is readily applicable to all CAFOs. The
production area requirements represent
the level of control achieved by the
majority of CAFOs in the beef, dairy,
swine, poultry and veal subcategories.
USDA and the American Society of
Agricultural Engineers cite the 25-year,
24-hour storm as the standard to which
storage structures should comply. This
has been the standard for many years,
and most existing lagoons and other
open liquid containment structures are
built to this standard. As described
above, the land application
requirements associated with Option 2
are believed to represent proper
agricultural practice and to ensure that
CAFO manure is applied to meet the
requirements of the crops grown and not
exceed the ability of the soil and crop
to absorb nutrients.
EPA believes any of the three methods
for determining when manure should be
applied on a phosphorus basis would
represent BPT. Each method has distinct
advantages which, depending on the
circumstances, could make one method
preferred over another. There has been
considerable work done in this area
within the past few years and this work
is continuing. EPA believes that this
proposed BPT approach provides
adequate flexibility to allow states to
develop an approach that works best for
the soils and crops being grown within
their state. Nonetheless, EPA will
continue to work with soil scientists
and may consider standardizing the
factors included in the phosphorus
index to develop a standard rating scale,
for the purpose of CAFO requirements.
EPA also solicits comment on whether
there should be some EPA oversight or
approval of the phosphorus method
developed by the states. Specifically
EPA solicits comment whether of EPA
should establish standards that must be
included in a phosphorus index. These
standards may include specifying
additional criteria which should be
considered in the index, such as
distance to surface water. EPA also
seeks comment on whether it should
establish minimum standards on how
these criteria must be factored into a
Phosphorus Index, such as specifying
the weight to be assigned to the various
criteria included in the Index and
assigning the values for specific ranges
for each criteria. EPA may consider
establishing a minimum standard for the
phosphorus threshold method for
example requiring that at a minimum
the phosphorus threshold be based on
the soil phosphorus concentration that
would result in a soluble phosphorus
concentration in the runoff of 1 ppm.
EPA may also consider establishing
specific sampling protocols for
collecting manure and soil samples and
analyzing for nutrients. .
CAFOs must also develop and
implement a PNP that establishes the
appropriate manure application rate.
EPA believes the land application rates
established in accordance with one of
the three methods described in today's
proposed regulation, along with the
prohibition of manure application
within 100 feet of surface water, will
ensure manure and wastewater are
applied in a manner consistent with
proper agricultural use. EPA has
included a discussion of how to develop
a PNP in section VIII.C.6.
EPA believes that state sampling and
analytical protocols are effective;
however, soil phosphorus levels can
vary depending on how the soil samples
are collected. For example, a CAFO that
surface-applies manure will deposit
phosphorus in the surface layer of the
soil and should collect soil samples
from the top layer of soil. If this CAFO
collects soil samples to a depth of
several inches the analysis may
understate the phosphorus
concentrations in the soil. EPA solicits
comments on the need to establish
sampling protocols for soil sampling.
4. Best Control Technology for
Conventional Pollutants (BCT)
In evaluating possible BCT standards,
EPA first considered whether there are
any candidate technologies (i.e.,
technology options); that are
technologically feasible and achieve
greater conventional pollutant
reductions than the proposed BPT
technologies. (Conventional pollutants
are defined in the Clean Water Act as
including: Total Suspended Solids
(TSS), Biochemical Oxygen Demand
(BOD), pH, oil and grease and fecal
coliform.) EPA considered the same
BAT technology options described
below and their effectiveness at
reducing conventional pollutants. EPA's
analysis of pollutant reductions has
focused primarily on the control of
nutrients, nitrogen arid phosphorus.
However, the Agency has also analyzed
what the technology options can
achieve with respect to sediments (or
TSS), metals, and pathogens. Although
livestock waste also contains BOD, EPA
did not analyze the loadings or loadings
reductions associated with the
technology options for BOD. Thus, the
only conventional pollutant considered
in the BCT analysis is TSS. EPA
identified no technology option that
achieves greater TSS removals than the
proposed BPT technologies (see the
Technical Development Document).
EPA does not believe that these
technology options would substantially
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3059
reduce BOD loads. There are therefore
no candidate technologies for more
stringent BCT limits. If EPA had
identified technologies that achieve
greater TSS reductions than the
proposed BPT, EPA would have
performed the two part BCT cost test.
(See 51 FR 24974 for a description of the
methodology EPA employs when setting
BCT standards.) EPA solicits comment
on the assumptions it used in
considering BCT.
EPA is proposing to establish BCT
limits for conventional pollutants
equivalent to the proposed BPT limits.
5. Best Available Technology
Economically Achievable (BAT)
EPA is considering six technology
options to control discharges from
CAFOs in the beef, veal and poultry
subcategories, and seven technology
options for the dairy and hog
subcategories. All of the technology
options include restrictions on land
application of manure, best management
practices (BMPs), inspections and
record keeping for the animal
confinement areas, and wastewater
storage or treatment structures. The
following table summarizes the
requirements for each of the seven
technology options. Note that a given
technology option may include a
combination of technologies.
TABLE 8-1 .—REQUIREMENTS CONSIDERED IN THE TECHNOLOGY OPTIONS
Zero Discharge w/overflow when a 25-24 Design Stand-
100" LA sotback
Hydrologio Link Assessment & Zero Discharge to Ground-
Frozen/snow covered/saturated application prohibitions
Option 1.
X
X
X
X
X
Option 2
X
X
X
X
X
X
Option 3
X
X
X
X
X
X
X
Option 4
X
X
X
X
X
X
X
X
Option 5
Cattle &
Dairy
Cattle &
Dairy
X
X
X
X
Swine &
Poultry
Swine
Option 6
X
X
X
X
X
Swine &
Dairy
Option 7
X
X
X
X
X
X
X = All Subcategories.
Option 1. This option is equivalent to
Option 1 described under BPT Section
VIII.3. Option I* would require zero
discharge from the production area and
that liquid storage be designed,
constructed and maintained to handle
' all process wastewater and storm water
runoff from the 25-year, 24-hour storm
event. In addition, Option 1 requires
management practices to ensure that the
production area (which includes
manure and wastewater storage) is being
adequately maintained.
Option 1 also would establish a
requirement to develop a PNP. which
establishes the proper land application
rate for manure and wastewater to meet
the nitrogen requirements for the crops
being grown by the CAFO and require
a 100 foot setback from surface water,
sinkholes, tile drain inlets and
agricultural drainage wells.
Option 2. This option is equivalent to
Option 2 described under BPT (section
VII.3). Option 2 includes all of the
requirements established under Option
1. However, Option 2 would further
restrict the amount of manure that can
be applied to crop land owned or
controlled by the CAFO. The CAFO
would be required to apply manure and
wastewater at the appropriate rate
taking into account the nutrient
requirements of the crop and soil
conditions. Specifically, Option 2
would require that manure be applied at
crop removal rate for phosphorus if soil
conditions warrant and, if soils have a
very high levelphosphorus build-up, no
manure or wastewater could be applied
to the crop land owned or controlled by
the CAFO.
Option 3. Option 3 includes all the
requirements for Option 2 and would
require that all operations perform an
assessment to determine whether the
ground water beneath the feedlot and
manure storage area has a direct
hydrological connection to surface
water. As described in Section VII, EPA
has authority to control discharges to
surface water through ground water that
has a direct hydrological connection to
surface water. A hydrological
connection refers to the interflow and
exchange between surface
impoundments and surface water
through an underground corridor, or
ground water. EPA is relying on the
permitting authority to establish the
region-specific determination of what
constitutes a direct hydrological link.
Option 3 would require all CAFOs to
determine whether they have a direct
hydrological connection between the
ground water beneath the production
area and surface waters. If a link is
established, the facility would have to
monitor ground water up gradient and
down gradient of the production area to
ensure that they are achieving zero
discharge to ground water. EPA has
assumed that CAFOs would comply
with the zero discharge requirement by
installing liners of synthetic material
beneath lagoons and ponds, and
impervious pads below storage of dry
manure stockpiles. EPA's costs for liners
reflect both a synthetic liner and
compacted clay to protect the liner and
prolong its useful life.
CAFOs with a direct hydrologic link
would be required to sample the
groundwater from the monitoring wells
' (located up gradient and down gradient
of the production area) at a minimum
frequency of twice per year. These
samples are necessary to ensure that
pollutants are not being discharged
through groundwater to surface water
from the production area. The samples
shall be monitored for nitrate, ammonia,
total coliform, fecal coliform, Total
Dissolved Solids (TDS) and total
chloride. Differences in concentration of
these pollutants between the monitoring
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well(s) located up gradient and down
gradient of the production area are
assumed to represent a discharge of
pollutants and must be prevented. As
noted below, coliforms are not
necessarily good indicators of livestock
discharges. Also, it is difficult to
determine "concentrations" of coliforms
as they are not necessarily evenly
distributed in the way chemical
contaminants generally are. EPA
requests comment on technical concerns
associated with including total and fecal
coliforms in the groundwater
monitoring and protection requirements
and on ways to address such concerns.
Option 4. Option 4 includes all the
requirements for Option 3 and would
require sampling of surface waters
adjacent to feedlots and/or land under
control of the feedlot to which manure
is applied. This option would require
CAFOs to sample surface water both
upstream and downstream from the
feedlot and land application areas
following a one half inch rain fall (not
to exceed 12 sample events per year).
The samples would be analyzed for
concentrations of nitrogen, phosphorus
and total suspended solids (TSS). EPA
selected these pollutants because it
believes these pollutants provide an
adequate indication of whether a
discharge is occurring from the
operation. All sampling results would
be reported to the permit authority. Any
difference in concentration between the
upstream and downstream samples
would be noted. This monitoring
requirement could provide some
indication of discharges from the land
application or feedlot areas.
EPA also considered requiring that
pathogens and BODS be analyzed in
samples collected. EPA decided that
this would not be practical, because
sampling under Option 4 is linked to
storm events which limits the ability to
plan in advance for analysis of the
samples and making arrangements for
shipping samples to laboratories. Fecal
coliform and BOD samples all have very
short holding times before they need to
be analyzed. Most CAFOs are located in
rural areas with limited access to
overnight shipping services and are
probably not near laboratories that can
analyze for these pollutants. Further,
fecal coliform and similar analytes that
are typically used as indicators in
municipal wastewater are not
necessarily good indicators of livestock
discharges. & CAFOs were required to
monitor for pathogens which could
indicate discharges of manure or CAFO
wastewater, it would'be better to require
monitoring for fecal enterococci, or even
specific pathogens such as salmonella,
Giardia, and Cryptosporidium.
However, the cost for analyzing these
parameters is very high and the holding
times for these parameters are also very
short.
Furthermore, EPA determined
pathogen analyses are also
inappropriate because the pathogens in
manure are found in areas without
animal agriculture. For example
Enterobacter, Klebsiella, Bacillus cereus,
Clostridium, and Listeria are all
naturally occurring soil and plant
microorganisms and are found in soils
that have never received manure.
Pathogens may also be deposited onto
land from wildlife. Thus, EPA
concluded that requiring analysis for
these pollutants was impractical at best
and potentially very expensive.
Option 5. Option 5 includes the
requirements established by Option 2
and would establish a zero discharge
requirement from the production area
that does not allow for an overflow
under any circumstances. By keeping
precipitation from contacting with the
animals, raw materials, waste handling
and storage areas, CAFOs could operate
the confinement areas and meet zero
discharge regardless of rainfall events.
Option 5 includes the same land
application requirements as Option 2,
which would restrict the rate of manure
and wastewater application to a crop
removal rate for phosphorus where
necessary depending on the specific soil
conditions at the CAFO. Additionally,
as in Option 2, application of manure
and wastewater would be prohibited
within 100 feet of surface water.
EPA considered Option 5 for the
poultry, veal and hog subcategories,
where it is common to keep the animals
in total confinement, feed is generally
maintained in enclosed hoppers and the
manure and wastewater storage can be
handled so as to prevent it from
contacting storm water. EPA considered
a number of ways a facility might meet
the requirements of no discharge and no
overflow. In estimating the costs
associated with Option 5, EPA
compared the total costs and selected
the least expensive technology for a
given farm size, geographic region, and
manure management system. Costs also
depend on whether the facility's PNP
indicates land application must be
based on nitrogen or phosphorus, and
how many acres the facility controls.
The technologies described below were
used singularly or in combination to
meet the requirements of Option 5.
Many facilities can achieve Option 5
by covering open manure and storage
areas, and by constructing or modifying
berms and diversions to control the flow
of precipitation. EPA costed broiler and
turkey operations for storage sheds ,
sufficient to contain six months of
storage. Some poultry facilities,
particularly turkey facilities, compost
used litter in the storage sheds, allowing
recycle and reuse of the litter. EPA
costed swine, veal, and poultry facilities
which use lagoons or liquid
impoundments for impoundment
covers.
EPA believes that operations which
have excess manure nutrients and use
flush systems to move manure out of the
confinement buildings will have an
incentive to construct a second lagoon
cell. A second storage or treatment cell
should accomplish more decomposition
of the waste and will allow flush water
to be recycled out of the second cell or
lagoon, thus reducing the addition of
fresh water to the system. Reducing the
total volume of stored waste reduces the
risk of a catastrophic failure of the
storage structure. In the absence of large
volumes of water, facilities with an
excess of manure nutrients will be able
to transfer the excess manure off-site
more economically due to a lower
volume of waste needing to be hauled.
Water reduction also results in a more
concentrated product which would have
a higher value as a fertilizer.
Covered systems substantially reduce
air emissions, and help maintain the
nutrient .value of the manure. Covered
systems also may benefit facilities by
reducing odors emanating from open
storage. This option also creates a strong
incentive for facilities to utilize covered
lagoon digesters or multistage covered
systems for treatment. The use of covers
will allow smaller and more stable
liquid impoundments to be constructed.
Finally, the use of covered
impoundments encourages treatment
and minimal holding times, resulting in
pathogen die-off and reduction of BOD
and volatile solids.
Other technologies can be effectively
used at some facilities, such as
conversion of flush systems to scrape
systems, or by retrofit of slatted floor
housing to V-shaped under house pits
that facilitate solid liquid separation.
Solids can be stored or composted in
covered sheds, while the urine can be
stored in small liquid impoundments.
In the event the faciluy has
insufficient land to handle all nutrients
generated, EPA evaluated additional
nutrient management strategies. First,
the manure could pass through solid
separation, resulting in a smaller
volume of more concentrated nutrients
that is more effectively transported
offsite. Second, land application could
be based on the uppermost portion of a
covered lagoon containing a more dilute
concentration of nutrients. Data
indicates much of the phosphorus
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3061
ler
accumulates in the bottom sludge,
which is periodically removed and
could be transported offsite for proper
land application. Though many
facilities report sludge removal of a
properly operating lagoon may occur as
infrequently as every 20 years, EPA
assumed facilities would pump out the
phosphorus and metals enriched sludge _
every three years. This is consistent
with the ANSI/ASAE standards for ,
anaerobic treatment lagoons (EP403.3
JUL99) that indicates periodic sludge
removal and liquid drawdown is
necessary to maintain the treatment
volume of the lagoon. Third, swine and
poultry farms can implement a variety
of feeding strategies, as discussed undi
Option 2 (see Section VII.C.3). Feed
management including phytase,
multistage diets, split sex feeding, and
precision feeding have been shown to
reduce phosphorus content in the
manure by up to 50%. This results in
less excess nutrients to be transported
offsite, and allows for more manure to
be land applied at the CAFO.
EPA is aware of a small number of
swine facilities that are potentially
CAFOs and use either open lots or some
type of building with outside access to
confine the animals. EPA data indicate
these types of operations are generally
smaller operations that would need to
implement different technologies than
those described above. CAFOs that
provide outdoor access for the animals
need to capture contaminated storm
water that falls on these open areas.
Open hog lots would find it difficult to
comply with a requirement that does
not allow for overflows in the event of
a large storm. EPA costed these facilities
to replace the open lots with hoop
houses to confine the animals and
storage sheds to contain the manure.
Hoop structures are naturally ventilated
structures with short wooden or
concrete sidewalls and a canvas, .
- synthetic, or reflective roof supported
by tubes or trusses. The floor of the
house is covered with straw or similar
bedding materials. The manure and
bedding is periodically removed and
stored. The drier nature of the manure
lends to treatment such as composting
as well as demonstrating reduced
hauling costs as compared to liquid
manure handling systems.
EPA considered a variation to Option
5 that would require CAFOs to use dry
or drier manure handling practices: This
variation assumed conversion to a
completely dry manure handling system
for hogs and laying hens using liquid
manure -handling systems. In addition to
the advantages of reduced water use
described above, a completely dry
system is more likely to minimize
leaching to ground water and, where
directly connected hydrologically to
surface water, will also reduce loads to
surface waters. For the beef and dairy
subcategories EPA assumes that the
liquid stream would be treated to
remove the solids and the solids would
be composted. It is not practical to
assume beef and dairy operations can
avoid the generation of liquid waste
because operations in both
subcategories tend to have animals in
open areas exposed to precipitation
resulting in a contaminated storm water
that must be captured. Also dairies
generate a liquid waste stream from the
washing of the milking parlor.
Option 6. Option 6 includes the
requirements of Option 2 and requires
that large hog and dairy operations (hog
operations and dairies with 2,000 AUs)
would install and implement enclosed
anaerobic digestion to treat their manure
and use the captured methane gas for
energy or heat generation. With proper
management, such a system can be used
to generate additional on-farm revenue.
The enclosed system will reduce air
emissions, especially odor and
hydrogen sulfide, and potentially
reduces nitrogen losses from ammonia
volatilization. The treated effluent will
also have less odor and should be more
transportable relative to undigested
manure, making offsite transfer of
manure more economical. Anaerobic
digestion under thermophilic or heated
conditions would achieve additional
pathogen reductions.
Option 7. Option 7 includes the
requirements of Option 2 and would
prohibit manure application to frozen,
snow covered or saturated ground. This
prohibition requires that CAFOs have
adequate storage to hold manure for the
period of time during which the ground
is frozen or saturated. The necessary
period of storage ranges from 45 to 270
. 'days depending on the region. In
practice, this may result in some
facilities needing storage to hold
manure and wastes for 12 months. EPA
requests comment on whether there are
specific conditions which warrant a
national standard that prohibits
application when the ground is frozen,
snow covered or saturated.
6. Proposed Basis for BAT
BAT Requirements for the Beef and
Dairy Subcategories. EPA is proposing
to establish BAT requirements for the
beef and dairy subcategories based on
the same technology option. The beef
subcategory includes stand-alone heifer
operations and applies to all confined
cattle operations except for operations
that confine mature dairy cattle or veal.
Under the twoTtier structure, the BAT
requirements would apply to any beef
operation with 500 head of cattle or
more. Under the three-tier structure, the
BAT requirements for beef would apply
to any operation with more than 1,000
head of cattle and any operation'with
300 to 1,000 head which meets the
conditions identified in section VII.B.2
and 3 of this preamble.
EPA proposes to establish BAT
requirements for dairy operations which
meet the following definitions: under
the two-tier structure, all dairy with 350
head of mature dairy cows or more
would be subject to today's proposed
BAT requirements. Under the three-tier
approach any dairy with more than 700
head of mature dairy cows or 250 to 700
head of mature dairy cows which meets
the conditions identified in section VII
of this preamble would be subject to
today's proposed BAT requirements.
EPA proposes to establish BAT
requirements for the beef and dairy
subcategories based on Option 3. BAT
would require all beef and dairy CAFOs
to monitor the ground water beneath the
production area by drilling wells up
gradient and down gradient to measure .
for a plume of pollutants discharged to
ground water at the production area. A
beef or dairy CAFO can avoid this
ground water monitoring by
demonstrating, to the permit writer's
satisfaction, that it does not have a
direct hydrological connection between
the ground water beneath the
production area and surface waters.
EPA proposes to require.CAFOs in the
beef and dairy subcategories to monitor
their ground water unless they
determine that the production area is
located above ground water which has
a direct hydrological connection to
surface water. CAFOs would have to
monitor for ammonia, nitrate, fecal
colifonri, total coliform, total chlorides
and TDS. EPA selected these pollutants
because they may be indicators of
livestock waste and are pollutants of
concern to ground water sources. If the
down gradient concentrations are higher
than the up gradient concentration this
indicates a discharge which must be
controlled. As discussed above, EPA
requests comment on the inclusion of
total and fecal coliforms among the
required analytes. For operations that do
not demonstrate that they do not have
a direct hydrologic connection, EPA
based the BAT zero discharge
requirement on the installation of liners
in liquid storage structures such as
lagoons and storm water retention
ponds and concrete pads for the storage
of dry manure stockpiles.
Beef and dairy CAFOs must also
develop and implement a PNP that is
based on application of manure and'
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wastewater to crop land either at a crop
removal rate for phosphorus where soil
conditions require it, or on the nitrogen
requirements of the crop. EPA believes
the land application rates established in
accordance with one of the three
methods described in today's proposed
regulation, along with the prohibition of
manure application within 100 feet of
that surface water will ensure manure
and wastewater are applied in a manner
consistent with proper agricultural use.
See EPA's document .entitled "Managing
Manure Nutrients at Concentrated
Animal Feeding Operations" for the
detailed discussion of how a PNP is
developed.
EPA believes that technology option 3
is economically achievable and
represents the best available technology
for the beef and dairy subcategories, and
is therefore proposing this option as
BAT for these subcategories. The
incremental annual cost of Option 3
relative to Option 2 for these
subcategories is $170 million pre-tax
under the two-tier structure, and $1205
million pre-tax under the three tier
structure. EPA estimated annual ground
water protection benefits from the
proposed requirements of $70-80
million. EPA estimates Option 3 for the
beef and dairy subcategories will reduce
loadings to surface waters from
hydrologically connected ground water
by 3 million pounds of nitrogen. To
determine economic achievability, EPA
analyzed how many facilities would
experience financial stress severe
enough to make them vulnerable to
closure under each regulatory option.
As explained in more detail in the
Economic Analysis, the number of
facilities experiencing stress may
indicate that an option might not be
economically achievable, subject to
additional considerations. Under Option
2, no facilities in either the beef or dairy
sectors were found to experience stress,
while under Option 3, the analysis
projects 10 beef and 329 dairy CAFOs
would experience stress under the two-
tier structure, and 40 beef and 610 dairy
CAFOs would experience stress under
the three-tier structure. Of these, EPA
has determined that 40 beef operations
are considered small businesses based
on size standards established by the
Small Business Administration. This
analysis assumes that 76% of affected
operations would be able to demonstrate
that their ground water does not have a
hydrological connection to surface
water and would therefore not be
subject to the proposed requirements.
EPA projects the cost of making this
demonstration to the average CAFO
would he $3,000. EPA is aware that
concerns have been raised about these
cost estimates, and about its estimates of
how many facilities would be able to
avoid the groundwater monitoring and
protection requirements on this basis.
EPA requests comment on this analysis
and on its proposed determination that
Option 3 is economically achievable for
the beef and dairy sectors.
EPA is not proposing to base BAT
requirements for the beef and dairy
subcategories on Option 2 because it
does not as comprehensively control
discharges of pollutants through ground
water which has a direct hydrological
connection with surface water. •
However, EPA is requesting comment
on Option 2 as a possible basis for BAT
in the beef and dairy subcategories. EPA
notes that even under Option 2, permit
writers would be required to consider
whether a facility is located in an area
where its hydrogeology makes it likely
that the ground water underlying the
facility is hydrologically connected to
surface water and whether a discharge
to surface water from the facility
through such hydrologically connected
ground water may cause or contribute to
a violation of State water quality •
standards. In cases where such a
determination was made by the permit
writer, he or she would impose
appropriate conditions to prevent
discharge via a hydrologic connection
would be included in the permit. The
main difference between Option 2 and
Option 3 is thus'that under Option 3,
the burden of proof would be on the
facility to demonstrate that it does not
discharge to ground water that is
hydrologically connected to surface
water, while under Option 2, ground
water protection and monitoring
requirements would only be included in
the permit if there were an affirmative
determination by the permitting
authority that such requirements were
necessary to prevent a discharge of
pollutantsjio surface waters via
hydrologically connected ground water
that may be sufficient to cause a
violation of State water quality
standards. Under today's proposal, the
Option 2 approach to preventing
discharges via hydrologically connected
ground water would be used for the
veal, swine and poultry subcategories.
EPA requests comment on applying this
approach to the beef and dairy
subcategories as well.
EPA is not proposing to establish BAT
requirements for the beef and dairy
subcategories on the basis of Option 4
due to the additional cost associated
with ambient stream monitoring and
because the addition of in-stream
monitoring does not by itself achieve
any better controls on the discharges
. from CAFOs as compared to the other
options. In-stream monitoring could be
an indicator of discharges occurring
from the CAFO; however, it is equally
likely that in-stream monitoring will
measure discharges that may be
occurring from adjacent non-CAFO
agricultural sources. Through the use of
^commercial fertilizers these non-CAFO
"sources would likely be contributing the
same pollutants being analyzed under
Option 4. EPA has not identified a better
indicator parameter which would
isolate constituents from CAFO manure
and wastewater from other possible
, sources contributing pollutants to a
stream. Pathogen analysis could be an
indicator if adjacent operations do not
also have livestock or are not using
manure or biosolids as fertilizer sources.
However, as described earlier, EPA has
• concerns about the ability of CAFOs to
collect and analyze samples for these
pollutants because of the holding time
constraints associated with the
analytical methods for these parameters.
Accordingly, EPA does not believe that
specifying these additional in-stream
monitoring BMP requirements would be
appropriate; and would not be useful in
ensuring compliance with the Clean
Water Act. Moreover, in-stream .
monitoring would be a very costly
requirement for CAFOs to comply with.
EPA is not proposing to establish BAT
requirements for the beef and dairy
subcategories on the basis of Option 5.
Option 5 would require zero discharge
with no overflow from the production
area. Most beef feedlots are open lots
which have large areas from which
storm water must be collected; thus, it
is not possible to assume that the
operation can design a storm water
impoundment that will never
experience an overflow even under the
most extreme storm. Stand alone heifer
operations (other than those that are •
pasture-based) are configured and
operated in a manner very similar to
beef feedlots. Unlike the hog, veal and
poultry subcategories, EPA is not aware .
of any beef operations that keep all
cattle confined under roof at all times.
Dairies also frequently keep animals
in open areas for some period of time,
whether it is simply the pathway from
the barn to the milk house or an open
exercise lot. Storm water from these
open areas must be collected in addition
to any storm water that contacts food or
silage. As is the case for beef feedlots,
the runoff volume from the exposed
areas is a function of the size of the area
where the cattle are maintained, and the
amount of precipation. Since the CAFO
operator cannot control the amount of
precipation, there always remains the
possibility that an extreme storm event
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3063
can produce enough rainfall that the
resulting runoff would exceed the
capacity of the lagoon.
. EPA did consider a new source option
for new dairies that would enforce total
confinement of all cattle at the dairy.
This new source option poses a barrier
to entry for new sources, therefore, EPA
assumes that this option if applied to
existing sources would he economically
unachievable. Furthermore, EPA did
evaluate a variation of Option 5 that
would apply to existing beef and dairy
operations and would require the use of
technologies which achieve a less wet
manure. These technologies include
solid-liquid separation and composting
the solids. EPA is not proposing to
establish BAT on the use of these
technologies, but does believe these
technologies may result in cost savings
at some operations. Additionally,
composting will achieve pathogen
reductions. As described in section
VIII.C.9., EPA is continuing to examine
pathogen controls and may promulgate
requirements on the discharge of
pathogens. If EPA set limitations on
pathogens, composting technology
would likely become a basis for
achieving BAT limits. EPA invites
comment on composting and its
application to dry beef and dairy
manure.
For any operation that has inadequate
crop land on which to apply its manure
and wastewater, solid-liquid separation
and composting could benefit the
CAFO, as these technologies will make
the,manure more transportable. Drier
manure is easier to transport; and
therefore, EPA believes solid liquid
separation and composting will be used
in some situations to reduce the
transportation cost of excess manure. In
addition, composting is a value-added
process that improves the physical
characteristics (e.g., reduces odor and
creates a more homogenous product) of
the manure. It can also make the manure
a more marketable product. As a result,
a CAFO-with excess manure may find
it easier to give away, or even sell, its
excess manure. EPA encourages all
CAFOs to consider technologies that
will reduce the volume of manure
requiring storage and make the manure
easier to transport.
Option 6, which requires anaerobic
digestion treatment with methane
capture, was not considered for the beef
subcategory, but was considered for the
dairy subcategory for treatment of liquid
manure. Anaerobic digestion can only
be applied to liquid waste. As described
previously in Section VI, beef feedlots
maintain a dry manure, yet they capture
storm water runoff from the dry lot and
manure stockpile. The storm water
runoff is generally-too dilute to apply
digestion technology.
Most dairies, however, handle manure
as a liquid or slurry which is suited to
treatment through anaerobic digestion.
EPA concluded that application of
anaerobic digesters at dames will not
necessarily lead to significant
reductions in the pollutants discharges
to surface waters from CAFOs. An
anaerobic digester does not eliminate
the need for liquid impoundments to
store dairy parlor water and bam flush
water and to capture storm water runoff
from the open areas at the dairy. Neither
do digesters reduce the nutrients,
nitrogen or phosphorus. Thus, basing
BAT on digester technology would not
change the performance' standard that a
production area at a CAFO would
achieve and would not reduce or
eliminate the need for proper land
application of manure. Digesters were
considered because they achieve some
degree of waste stabilization and more
importantly they capture air emissions
generated during manure storage. The
emission of ammonia from manure
storage structures is a potentially
significant contributor of nitrogen to
surface waters. Covered anaerobic
digesters will prevent these emissions
while the waste is in the digester, but
the digester does not convert the
ammonia into another form of nitrogen,
such as nitrate; which is not as volatile.
Thus as soon as the manure is exposed
to air the ammonia will be lost.
Operations may consider additional
management strategies for land
application such as incorporation in
order to maintain the nitrogen value as
fertilizer and to reduce emissions.
As mentioned above, the application
of ambient temperature or mesophilic
anaerobic digesters would not change
the performance standard that a CAFO
would achieve. EPA considered
anaerobic digestion as a means to
control pathogens. Thermophilic
digestion which applies heat to the
waste will reduce pathogens. As
described in Section VIII.C.9. EPA is
still evaluating effective controls for
pathogens.
EPA is not proposing to base BAT
requirements on Option 7 for the beef
and dairy subcategories. Option 7 would
prohibit manure application on
saturated, snow covered or frozen
ground. Pollutant runoff associated with
application of manure or wastewater to
saturated, snow covered or frozen
ground is a site specific consideration,
and depends on a number of site
specific variables, including distance to
surface water and slope of the land. EPA
believes that establishing a national
standard that prohibits manure or
wastewater application is inappropriate
because of the site specific nature of
these requirements and the regional
variability across the nation. This is
described in Section VII.E.S.b, above.
However, Section VII also explains that
EPA is proposing to revise 40 CFR Part
122 to require the permit authority to
include, on a case-by-case basis,
restrictions on the application of CAFO
waste to frozen, snow covered or
saturated ground in CAFO permits. This
permit condition should account for
topographic and climatic conditions
found in the state.
. Requirements for the beef and dairy
subcategories would still allow for an
overflow in the event of a chronic or
catastrophic storm that exceeds the 25-
year, 24-hour storm. EPA believes this
standard reflects the best available
technology. Under the proposed
revisions to Part 122, permits will
require that any discharge from the
feedlot or confinement area be reported
to the permitting authority within 24
hours of the discharge event. The CAFO
operator must also report the amount of
rainfall and the approximate duration of
the storm event.
BAT Requirements for the Swine, Veal
and Poultry Subcategories. EPA is
proposing to establish BAT
requirements for the swine, veal and
poultry subcategories based on Option
5. For the purpose of simplifying this
discussion, the term poultry is used to
include chickens and turkeys. Option 5
requires zero discharge of manure and
process wastewater and provides no
overflow allowance for manure and
wastewater storage. Land application
requirements for these operations would
be the same as the requirements under
Option 2.
EPA is proposing Option 5 because
swine, veal and poultry operations can
house the animals under roof and feed
is also not exposed to the weather.
Thus, there is no opportunity for storm
water contamination. Broiler and turkey
operations generate a dry manure which
can be kept covered either under a shed
or with tarps. Laying hens with dry
manure handling usually store manure
below the birds' cages and inside the
confinement building. Veal and poultry
operations confine the animals under
roof, thus there are no open animal •
confinement areas to generate
contaminated storm water. Those
operations with liquid manure storage
can comply with the restrictions
proposed under this option by diverting
uncontaminated storm water away from
the structure, and covering the lagoons
or impoundments.
The technology basis for the poultry
BAT requirements at the production
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area are litter sheds for broiler and
turkey CAFOs, and underhouse storage
for laying hens with dry manure
handling systems. For laying hen
CAFOs with liquid manure handling
systems, EPA's technology basis is solid
separation and covered storage for the
solids and covered lagoons.
, Laying hen farms may also have egg
wash water from in-line or off-line
processing areas. Only 10% of laying
hen operations with fewer than 100,000
birds have on farm egg processing,
while 35% of laying hen operations
with more than 100,000 birds have on
farm egg processing. The wash water is
often passed through a settling system to
remove calcium, then stored in above
ground tanks, below ground tanks, or
lagoons. Today's proposal is based on
covered storage of the egg wash water
from on-farm processing, to prevent
contact with precipitation. The ultimate
disposal of egg wash water is through
land application which must be done in
accordance with the land application
rates established in the PNP. EPA
believes the low nutrient value of egg
washwater is unlikely to cause
additional incremental costs to laying
hen facilities to comply with the
proposed land application
requirements.
EPA assumes large swine operations
(e.g., operations with more than 1,250
hogs weighing 55 pounds or greater)
operate using total confinement
practices, EPA based BAT Option 5 on
the same approach described above of
covering liquid manure storage. CAFOs
can operate covered lagoons as
anaerobic digesters which is an effective
technology for achieving zero discharge
and will provide the added benefits of
waste stabilization, odor reduction and
control of air emissions from manure
storage structures. Anaerobic digesters
also can be operated to generate
electricity which can be used by the
CAFO to offset operating costs.
Although Option 5 is the most
expensive option for the hog
subcategory, as shown on Table
X.E.2(a), EPA believes this option
reflects best available technology
economically achievable because it
prevents discharges resulting from
liquid manure overflows that occur in
open lagoons and pond. Similarly, the
technology basis of covered treatment
lagoons and drier manure storage is
believed to reduce the likelihood of
those catastrophic lagoon failures
associated with heavy rainfalls. Option
5 also achieves the greatest level of
pollutant reductions from runoff
reaching the edge of the field. Non-
water quality environmental impacts
include reduced emissions and odor,
with a concurrent increase in nitrogen
value of the manure, however as
mentioned previously, the ammonia
concentration is not reduced and once
the manure is exposed to air the
ammonia will volatilize. Water"
conservation and recycling practices
associated with Option 5 will promote
increased nutrient value of the manure,
reduced hauling costs via reduced water
content, and less fresh water use.
The technology basis of Option 5,
solid-liquid separation and storage of
the solids, has the advantage of creating
a solid fraction which is more
transportable, thus hog CAFOs that have
excess manure can use this technology
to reduce the transportation costs.
EPA is aware of three open lot hog
operations that have more than 1,250
hogs and there may be a small number
of others, but the predominant practice
is to house the animals in roofed
buildings with total confinement. For
open lot hog CAFOs, EPA is proposing
to base BAT the application of hoop
structures as described above.
Veal operations use liquid manure
management and store manure in
lagoons. EPA has based BAT on covered
manure and feed storage. The animals
are housed in buildings with no outside
access. Thus, by covering feed and
waste storage the need to capture
contaminated storm water is avoided.
In evaluating the economic
achievability of Option 5 for the swine,
veal and poultry subcategories, EPA
evaluated the costs and impacts of this
option relative to Option 2. For these
subcategories, the incremental annual
cost of Option 5 over Option 2 would
be $110 million prertax under the two-
tier structure, and $140 million pre-tax
under the three-tier structure. Almost all
of these incremental costs are projected
to be in the swine sector. Since the
majority of the costs are borne by the
swine subcategory, EPA solicits
comment on establishing BAT on the
basis Option 5 for the only the veal and
poultry subcategories, and establishing
BAT on the basis of Option 2 that the
swine subcategory. EPA projects that
there would be no additional costs
under the two-tier structure, and only
very small additional costs under the
three-tier structure for the veal and
poultry subcategories to move from
Option 2 to Option 5. Under Option 2,
EPA estimates 300 swine operations and
150 broiler operations would experience
stress under the two-tier structure, and
300 swine operations and 330 broiler
operations would experience stress
under the three-tier structure. Under '
Option 5 an additional 1,120 swine
operations would experience stress
under both the two-tier and three-tier
structures. All affected hog operations
have more than 1000 AU. None of these
affected hog operations are small
businesses based on the Small Business
Administration's size standards. There
would be no additional broiler
operations experiencing stress under
Option 5, and no veal, layer, or turkey
operations are projected to experience
stress under either Option 2 or Option
5, EPA did not analyze the benefits of
Option 5 relative to Option 2. Under
Option 2 operations are required to be
designed, constructed and operated to
contain all process generated waste
waters, plus the runoff from a 25-year,
24-hour rainfall event for the location of
the point source. Thus, the benefit of
Option 5 over Option 2 would be the
value of eliminating discharges during
chronic or catastrophic rainfall events of
a magnitude of the 25-year, 24-hour
rainfall event or greater. Further benefit
would be realized as a result of
increased flexibility on the timing of
manure application to land. By
preventing the rainfall and run-off from
mixing with wastewater, CAFOs would
not need to operate such that land
application during storm events was
necessary.
EPA is not proposing Option 2 for
these sectors. However, EPA notes that
at the time of the SBREFA outreach
process, removing the 25-year, 24-hour
design standard for any sector was not
considered largely due to concern that
a different design standard would lead
to larger lagoons or impoundments. EPA
staff explicitly stated this to the SERs
and other member of the Panel.
Although not extensively discussed,
since it did not appear at that time to
he an issue, retention of this standard
was supported by both the SERs and the
Panel. At that time, EPA was not
planning to evaluate such an option
because of the concern that this would
encourage larger lagoons. Since the
Panel concluded it outreach, EPA
decided to evaluate, and tiltimately
propose removing this design standard
for the veal, swine and poultry
subcategories because of reports of
lagoon failures resulting from rainfall
and poor management. As mentioned
previously, all of the'se sectors maintain
their animals under roof eliminating the
need to capture contaminated storm
water from the animal confinement area.
In addition, most poultry operations
generate a dry manure, which when
properly stored, under some type of
cover, eliminates any possibility of an
overflow in the event of a large storm.
Therefore EPA believes that Option 5
technology which prevents the
introduction of storm-water into manure
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3065
storage is achievable and represents Best
Available Technology, without
redesigning the capacity of existing
manure storage units. However, EPA
requests comment on retaining te 25-
year, 24-hour storm design standard
(and thus basing BAT on Option 2) for
these sectors, consistent with its
intention at the time of the SBREFA
outreach process.
EPA is not proposing to base BAT for
the swine, poultry and veal
subcategories on Option 3, because EPA
believes Option 5 is more protective of
the environment. If operators move
towards dry manure handling
technologies and practices to comply
with Option 5, there should be less
opportunity for ground water
contamination and surface water
contamination through a direct
hydrological connection. EPA strongly
encourages any newly constructed
lagoons or anaerobic digesters to be
done in such a manner as to minimize
pollutant losses to ground water. A
treatment lagoon should be lined with
clay or synthetic liner or both and solid
storage should be on a concrete pad or
preferably a glass-lined steel tank as
EPA has included in its estimates of
BAT costs. Additionally, Option 5
provides the additional non-water
quality benefit of achieving reductions
in air emissions from liquid storage
systems. EPA estimates that the cost of
complying with both Option 3 and 5 at
existing facilities would be
economically unachievable.
EPA believes the proposed technology
basis for broilers, turkeys and laying
hens with dry manure management will
avoid discharges to ground water since
the manure is dry and stored in such a
way as to prevent storm water from
. reaching it. Without some liquid to
provide a transport mechanism,
pollutants cannot move through the soil
profile and reach the ground water and
surface water through a direct
hydrological connection.
EPA is not proposing to base BAT on
Option 4 for the same reasons described
above for the beef and dairy
subcategories. ,
EPA is not proposing to base BAT on
Option 6, because EPA believes that the
zero discharge aspect of the selected
option will encourage operations to
consider and install anaerobic digestion
in situations where it will be cost
effective. .
As with beef and dairy, EPA is not
proposing to base BAT for swine, veal
and poultry on Option 7, but believes
that permit authorities should establish
restrictions as necessary in permits
issued to CAFOs. Swine, veal and
; poultry operations should take the
timing of manure application into
account when developing the PNP. Any
areas that could result in pollutant
discharge from application of manure to
frozen, snow covered or saturated
ground should be identified in the plan
and manure or wastewater should not.
be'applied to those areas when there is
a risk of discharge.
EPA solicits comment on the use or
remote liquid level monitoring at
livestock operations. As described above
in Section VIII.C.3, this technology
could provide advanced notification
that levels are reaching a critical point,
and corrective actions could then be
taken. This technology does not prevent
precipitation from entering the lagoon
arid does not prevent overflows,
therefore EPA chose not to propose this
technology as BAT for swine or veal
operations. However, EPA solicits
comments on applicability of this
technology to livestock operations,
especially at swine and veal as an
alternative to covers on lagoons.
PNP Requirements
There are a number of elements that
are addressed by both USDA's
"Guidance for Comprehensive Nutrient
Management Plans (CNMPs)" and EPA's
PNP which would be required by the
effluent guidelines and NPDES
proposed rules and is detailed in the
guidance document "Managing Manure
Nutrients at Concentrated Animal
Feeding Operations." EPA's proposed
PNP would establish requirements for
CAFOs that are consistent with the
technical guidance published by USDA
experts, but go beyond that guidance by
identifying specific management
practices that must be implemented.
What follows is a brief description of
what must be included in a PNP.
General Information. The PNP must
have a Cover Sheet which contains the
name and location of the operation, the
name and title of the owner or operator
and the name and title of the person
who prepared the plan. The date
[month, day, year) the plan was
developed and amended must be clearly
indicated on the Cover Sheet. The
Executive Summary would briefly
describe the operation in terms of herd
or flock size, total animal waste
produced annually, crop identity for the
full 5 year period including a
description of the expected crop
rotation and, realistic yield goal. The
Executive Summary must include
' Indication of the field conditions for
each field unit resulting from the
phosphorus method used (e.g.,
phosphorus index), animal waste
application rates, the total number of
acres that will receive manure, nutrient
content of manure and amount of
manure that will be shipped off-site. It
should also identify the manure
collection, handling, storage, and
treatment practices, for example animals
kept on bedding which is stored in a
shed after removal from confinement
house, or animals on slatted floors over
a shallow pull plug pit that is drained
to an outdoor in-ground slurry storage
inpoundment. Finally, the Executive
Summary would have to identify the
watershed(s) in which the fields
receiving manure are located or the
nearest surface water body. While the
General Information section of a PNP
would give a general overview of the
CAFO and its nutrient management
plan, subsequent sections would
provide further detail.
Animal Waste Production. This
subsection details types and quantities
of animal waste produced along with
manure nutrient sampling techniques
and results. Information would be
included on the maximum number of
livestock ever confined and the
maximum livestock capacity of the
CAFO, in addition to the annual
livestock production. This section
would provide an estimate of .the
amount of animal waste collected each
year. Each different animal waste source
should be sampled annually and tested
by an accredited laboratory for nitrogen,
phosphorous, potassium, and pH.
Animal Waste Handling, Collection,
Storage, and Treatment. This subsection
details best management practices to
protect surface and groundwater from
contamination during the handling,
collection, storage, and treatment of
animal waste. A review would have to
be conducted of potential water
contamination sources from existing
animal waste handling, collection,
storage, and treatment practices. The
capacity ne'eded for storage would be
calculated.
Feedlot runoff would have to be
contained and adequately managed.
Runoff diversion structures and animal
waste storage structures would have to
be visually inspected for: seepage,
erosion, vegetation, animal access,
reduced freeboard, and functioning rain
gauges and irrigation equipment, on a
weekly basis. Deficiencies based on
visual inspections would have to be
identified and corrected within a
reasonable time frame. Depth markers
would have to be permanently installed
in all lagoons, ponds, and tanks.
Lagoons, ponds, and tanks would have
to be maintained to retain capacity for
the 25-year, 24-hour storm event. Dead
animals, required to be kept out of
lagoons, would have to be properly
handled and disposed of in a timely
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manner. Finally, an emergency response
plan for animal waste spills and releases
would have to be developed.
Land Application Sites. This
subsection details field identification
and soil sampling. County(ies) and
watershed code(s) where feedlot and
land receiving animal waste
applications are located would be
identified. Total acres of operation
under the control of the CAFO (owned
and rented) and total acres where
animal waste will be applied would be
included. A detailed farm map or aerial
photo, to be included, would have to
indicate: location and boundaries of the
operation, individual field boundaries,
field identification and acreage, soil
types and slopes, and the location of
nearby surface waters and other
environmentally sensitive areas (e.g.,
wetlands, sinkholes, agricultural
drainage wells, and aboveground tile
drain intakes) where animal waste
application is restricted.
Separate soil sampling, using an
approved method, would have to be
conducted every 3 years on each field
receiving animal waste. The samples
shall be analyzed at an accredited
laboratory for total phosphorous.
Finally, the phosphorous site rating for
each field would have to be recorded
according to the selected assessment
tool.
Land Application. This subsection
details crop production and animal
waste application to crop production
areas. Details of crop production would
have to include: Identification of all
planned crops, expected crop yields and
the basis for yield estimates, crop
planting and harvesting dates, crop
residue management practices, and
nutrient requirements of the crops to be
grown. Calculations used to develop the
application rate, including nitrogen
credits from legume crops, available
nutrients from past animal waste
applications, and nutrient credits from
other fertilizer and/or biosolids
applications would have to be included.
Animal waste application rates cannot
exceed nitrogen requirements of the
crops. However, animal waste
application rates would be limited to
the agronomic requirements for
phosphorous if the soil phosphorous
tests are rated "high", the soil
phosphorous tests are equal to %, but
not greater than twice the soil
phosphorous threshold value, or the
Phosphorous Index rating is "high."
Finally, animal waste could not be
applied to land if the soil phosphorous
tests are rated "very high", the soil
phosphorous tests are greater than twice
the soil phosphorous threshold value, or
the Phosphorous Index rating is "very
high." In some cases, operators may
choose to further restrict application '
rates to account for other limiting
factors such as salinity or pH.
Animal wastes cannot be applied to
wetlands or surface waters, within 100
feet of a sinkhole, or within 100 feet of
water sources such as rivers, streams,
lakes, ponds, and intakes to agricultural
drainage systems (e.g., aboveground tile
drain intakes, agricultural drainage
wells, pipe outlet terraces). EPA
requests comment on how serious
would be the limitations imposed by
these requirements. Manure spreader
and irrigation equipment would have to
be calibrated at a minimum once each
year, but preferably before each
application period. Finally, the date of
animal waste application and
calibration application equipment, and
rainfall amounts 24-hours before and
after application would be recorded.
Other Uses/Off-Site Transfer. The
final required subsection for a PNP
details any alternative uses and off-site
transport of animal wastes. If used, a
complete description of alternative uses
of animal waste would have to be
included. If animal wastes are
transported off-site the following would
have to be recorded: date (day, month,
year), quantity, and name and location
of the recipient of the animal waste.
Voluntary Measures. Many voluntary
best management practices can be
included within various subsections of
a PNP. These voluntary best
management plans are referenced in
EPA's guidance document for PNP
"Managing Manure Nutrients at
Concentrated Animal Feeding
Operations."
Annual Review and Revision. While a
PNP is required to be renewed every 5
years (coinciding with NPDES
permitting), an annual review of the
PNP would have to occur and the PNP
would be revised or amended as
necessary.
The most likely factor which would
necessitate an amendment or revision to
a PNP is a change in the number of
animals at the CAFO. A substantial
increase in animal numbers (for
example an increase of greater than
20%) would significantly increase the
volume of manure and total nitrogen
and phosphorous produced on the
CAFO. Because of this, the CAFO will
need to re-evaluate animal waste storage
facilities to ensure adequate capacity,
and may need to re-examine the land
application sites and rates.
A second reason which would require
an amendment or revision to a PNP is
a change in the cropp.ing program which
would significantly alter land
application of animal waste. Changes in
crop rotation or crop acreage could
significantly alter land application rates
for fields receiving animal waste. Also
the elimination or addition of fields
receiving animal waste application
would require a. change in the PNP.
Changes in animal waste collection,
storage facilities, treatment, or land
application method would require an
amendment or revision to a PNP. For
. example, the addition of a solid-liquid
separator would change the nutrient
content of the various animal waste
fractions and the method of land
application thereby necessitating a
revision in a PNP. Changing from
surface application to soil injection
would alter'ammonia volatilization
subsequently altering animal waste
nutrient composition requiring a
revision of land application rates.
When CAFOs Must Have PNPs. EPA
proposes to allow two groups of CAFOs
up to 90 days to obtain a PNP:
3. Existing CAFOs which are being
covered by a NPDES permit for the first
time; or
4. Existing CAFOs that are already
covered under an existing permit which
is reissued within 3 years from the date
of promulgation of these regulations.
EPA proposes that all other existing
CAFOs must have a PNP at the time
permits are issued or renewed.
7. New Source Performance Standards
For purposes of applying the new
source performance standards (NSPS)
being proposed today, a source would
be a new source if it commences
construction after the effective date of
the forthcoming final rule. (EPA expects
to take final action on this proposal in
December 2002, which is more than 120
days after the date of proposal—see 40
CFR 122.2). Each source that meets this
definition would be required to achieve
any newly promulgated NSPS upon
commencing discharge.
In addition, EPA is proposing
additional criteria to define "new
source" that would apply specifically to
CAFOs under Part 412. EPA intends that
permit writers will consult the specific
"new source" criteria in Part 412 rather
than the more general criteria set forth
in 40 CFR 122.29(b)(l). The other
provisions of 40 CFR 122.29 continue to
apply. EPA proposes to consider an
operation as a new source if any of the
following three criteria apply.
The definition of new source being
proposed for Part 412 states three
criteria that determine whether a source
is a "new source."
First, a facility would be a new source
if it is constructed at a site at which no
other source is located. These new
sources have the advantage of not
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3067
having to retrofit the operation to
comply with BAT requirements, and
thus can design to comply with more
stringent and protective requirements.
The second criterion for defining a
new source would be where new
construction at the facility "replaces the
housing, waste handling system,
production process, or production
equipment that causes the discharge or
potential to discharge pollutants at an
existing source." Confinement housing
and barns are periodically replaced,
allowing the opportunity to install
improved systems that provide
increased environmental protection.
The modern confinement housing used
at many swine, dairy, veal, and poultry
farms allows for waste handling and
storage in a fashion that generates little
or no process water. Such systems
• negate the need for traditional flush
systems and storage lagoons, reduce the
risks of uncontrollable spills, and
decrease the costs of transporting
manure.
Third, a source would be a new
source if construction is begun after the
date this rule is promulgated and its
production area and processes are
substantially independent of an existing
source at the same site. Facilities may
construct additional production areas
that are located on one contiguous
property, without sharing waste
management systems or commingling
waste streams. Separate production
areas may also be constructed to help
control biosecurity. New production
areas may also be constructed for
entirely different animal types, in which
case the more stringent NSPS
requirements for that subcategory would
apply to the separate and newly
constructed production area. In
determining whether production and
processes are substantially independent,
the permit authority is directed to
consider such factors as the extent to
which the new production areas are
integrated with the existing production
areas, and the extent to which the new
operation is engaging in the same
general type of activity as the existing
source.
EPA also considered whether a
• certain level of facility expansion,
measured as an increase in animal
production, should cause an operation
to be subject to new source performance
standards. If so, upon facility expansion
the CAFO would need to go beyond
compliance with BAT requirements to
meet the more stringent standards
represented by NSPS. In today's
proposal, that increment of additional
control, for the swine, poultry and veal
subcategories, would amount to the
need to monitor ground water and
install liners in lagoons and
impoundments to prevent discharges to
ground water that has a direct
hydrological connection to surface
water; unless the CAFO could
demonstrate that no such direct
hydrological link existed. In the beef
and dairy subcategories, the NSPS
proposed today are the same as the BAT
standards.
- The Agency, however, decided
against proposing to identify facility
expansion as a trigger for the
application of NSPS. Many CAFOs
oversize or over-engineer their waste
handling systems to accommodate
future increases in production. Thus, in
many cases, the actual increases in
production may not present a new
opportunity for the. CAFO to install the
additional NSPS technologies—e.g.
liners. To install liners, these operations
would need to retrofit their facilities the
same as existing sources would. EPA
has explained above that such
retrofitting would not be economically
achievable in these animal sectors.
Similarly, the costs associated with
these requirements would represent a
barrier to the expansion. Therefore, it
would not be appropriate to require
these operations, upon facility
expansion, to meet the additional
ground water-related requirements that
are a part of today's proposed NSPS.
EPA considered the saine seven
options for new source performance
standards (NSPS) as it considered for
BAT. EPA also considered an additional
option for new dairies, which if
selected, would prohibit dairies from
discharging any manure or process
wastewater from animal confinement
and manure storage areas (i.e.,
eliminating the allowance for
discharging overflows associated with a
storm event). New sources have the
advantage of not having to retrofit the
operation to comply with the
1th
requirements and thus can design the
operation to comply with more stringent
requirements. In selecting new source
performance standards, EPA evaluates
whether the requirements under
consideration would impose a barrier to
entry to new operations.
EPA is proposing to select Option 3 as
the basis for NSPS for the beef and dairy
subcategories. Option 3 includes all the
requirements proposed for existing
sources including complying with zero
discharge from the production area
except in the event of a 25-year, 24-hour
storm and the requirement to develop a
PNP which establishes the rate at which
manure and wastewater can be applied
to crop or pasture land owned or
controlled by the CAFO. The
application of manure and wastewater
would be restricted to a phosphorus
based rate where necessary depending :
on the specific soil conditions at the
CAFO. Additionally, other best
management practice requirements
would apply, including the prohibition
of manure and wastewater application
within 100 feet of surface water. The
proposed new source standard for the
beef and dairy subcategories includes a
requirement for assessing whether the
ground water beneath the production
area has a direct hydrological
connection to surface water. If a direct
hydrological connection exists, the
operation must conduct additional
monitoring of ground water up gradient
and down gradient from the production
area, and implement any necessary
controls based on the monitoring results
to ensure that zero discharge to surface
water via the .ground water route is
achieved for manure stockpiles and
liquid impoundments or lagoons. For
the purpose of estimating compliance
costs, EPA has assumed that operations
located in areas with a direct
hydrological connection will install
synthetic material or compacted clay
liners beneath any liquid manure
storage and construct Impervious pads
for any dry manure storage areas. The
operator would be required to collect
and analyze ground water samples twice
per year for total dissolved solids,
chlorides, nitrate, ammonia, total
colifomis and fecal coliform. EPA
believes that Option 3 is economically
achievable for existing sources. Since
new sources are able to install
impermeable liners at the time the
lagoon or impoundment is being
constructed, rather than retrofitting
impoundments at existing source, costs
associated with this requirement should
be less for new sources in comparison
to existing sources. EPA has concluded
that Option 3 requirements will riot
pose a barrier to entry for new sources.
EPA is proposing to establish NSPS
for all swine and poultry operations
based on Option 5 and Option 3
combined. In addition the BAT
requirements described in Section
Vin.C.6, the proposed new source
standards would require no discharge
via any ground water that has a direct
hydrological link to surface water. As
described above, Option 3 requires all
CAFOs to monitor the ground water and
impose appropriate controls to ensure
compliance with the zero discharge
standard, unless the CAFO has
demonstrated that there is no direct
hydrological link between the ground
water and any surface waters. The
proposed new source standard also
restricts land application of manure and.
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wastewater to a phosphorus based rate
where necessary depending on the
specific soil conditions at the CAFO.
Additionally, other best management
practice requirements would apply,
including that application of manure
and wastewater would be prohibited
within 100 feet of surface water.
EPA encourages new swine and
poultry facilities to be constructed to
use dry manure handling. Dry manure
handling is currently the standard
practice at broiler and turkey
operations. As described previously,
some existing laying hen operations and
most hog operations use liquid manure
handling systems. The proposed new
source performance standard would not
require the use of dry manure handling
technologies, but EPA believes this is
the most efficient technology to comply
with its requirements.
EPA has analyzed costs of installing
dry manure handling at new laying hen
and swine operations. Both sectors have
operations xvhich demonstrate dry
manure handling can be used as an
effective manure management system.
The dry manure handling systems
considered for both sectors require that
the housing for the animals be
constructed in a certain fashion, thus
making this practice less practical for
existing sources. Both sectors have
developed a high rise housing system,
which houses the animals on the second
floor of the building allowing the
manure to drop to the first floor or pit.
In the laying hen sector this is currently
a common practice and with aggressive
ventilation, the manure can be
maintained as a dry product. Hog
manure has a lower solids content, thus
the manure must be mixed with a
bedding material (e.g., wood chips, rice
or peanut hulls and other types of
beading) which will absorb the liquid.
To further aid in drying the hog manure,
air is forced up through pipes installed
in the concrete floor of the pit. With
some management on the part of the
CAFO operator, involving mixing and
turning the hog manure in the pit
periodically, the manure can be
composted while it is being stored. The
advantages of the high rise system for
hogs and laying hens include a more
transportable manure, which, in the
case of the hog high rise system, has
also achieved a fairly thorough
decomposition. The air quality inside
the high rise house is greatly improved,
and the potential for leaching pollutants
into the groundwater is greatly reduced.
The design standard of these high rise
houses include concrete floors and also.
assume that the manure would be
retained in the building until it will be
land applied, thus there is no
opportunity for storm water to reach the
manure storage and virtually no
opportunity for pollutants to leach to
groundwater beneath the confinement
house. EPA believes that the cost
savings associated with ease of manure
transportation, as well as improved
animal health and performance, with
the dry manure handling system for
hogs will off-set the increased cost of
operation and maintenance associated
with the high rise hog system. Thus,
EPA concludes the high-rise house does
not pose a barrier to entry and is the
basis for NSPS in both the laying hen
and hog sectors. Although the high rise
house is the basis of the new source
standards for the swine and laying hen
sectors, operations are not prevented
from constructing a liquid manure
handling system. If new sources in these
sectors choose to construct a liquid
manure handling system, they would be
required to line the lagoons, if the
operation is located in an area that has
a direct hydrologic connection, but the
cost associated with fining a lagoon at
the time it is being constructed is much
less than the cost to retrofit lagoon
liners.
EPA proposes to establish new source
requirements for the veal subcategory on
the basis of Option 5 which requires
zero discharge with no overflow from
the production area and Option 3 which
requires zero discharge of pollutants to
groundwater which has a direct
hydrological connection to surface
water, with the ground water
monitoring or hydrological assessment
requirements described above. EPA
believes that a zero discharge standard
without any overflow will promote the
use of covered lagoons, anaerobic
digesters or other types of manure
treatment systems. Additionally, this
will minimize the use of open air
manure storage systems, thus reducing
emission of pollutants from CAFOs.
New veal CAFOs would not be
expected to modify existing housing
conditions since EPA is not aware of
any existing veal operations that use dry
manure handling systems. New veal
CAFOs would be expected to also use
covered lagoons, or anaerobic digesters
to comply with the zero discharge
standard. New veal CAFOs would be
required to line their liquid manure
treatment or storage structures with
either synthetic material or compacted
clay to prevent the discharge of
pollutants to ground water which has a
direct hydrological connection to
surface water. In addition, the CAFO
would have to monitor the groundwater
beneath the production area to ensure
compliance with the zero discharge
requirement. The CAFO would not need
to install liners or monitor ground water
if it demonstrates that there is no direct
hydrologic link between the ground
water and any surface waters.
In addition to the seven options
considered for both existing and new
sources, EPA also investigated a new
source option for dairies that would
prohibit all discharges of manure and
process wastewater to surface waters,
eliminating the current allowance for
the discharge of the overflow of runoff
from the production area. To comply
with a zero discharge requirement,
dairies would need to transform the
operation so they could have full
control over the amount of manure and
wastewater, including any runoff,
entering impoundments. Many dairies
have drylot areas where calves, heifers,
and bulls are confined, as well as
similar drylot areas where the mature
cows are allowed access. EPA estimated
compliance costs for a zero discharge'
requirements assuming that the
following changes would occur at new
dairies:
(1) Freestall bams for mature cows
would be constructed with six months
underpit manure storage, rather than
typical flush systems with lagoon
storage;
(2) Freestall barns with six months
underpit manure storage would be
constructed to house heifers;
. (3) Calf barns with a scrape system
would be constructed with a scrape
system and six months of adjacent
manure storage; and
(4) New dairies would include
covered walkways, exercise areas, parlor
holding, and handling areas.
Drylot areas are continually exposed
to precipitation. The amount of
contaminated runoff from such areas
that must be captured is directly related
to the size of the exposed area and the
amount of precipitation. Under the
current regulations, dairies use the 25-
year, 24-hour rainfall event (in addition
to other considerations) when
determining the necessary storage
capacity for a facility. Imposing a zero
discharge requirement that prevents any
discharge .from impoundments would
force dairies to reconfigure in a way that
provides complete control over all
sources of wastewater. EPA considered
the structural changes in dairy design
described here to create a facility that
eliminates the potential for
contaminated runoff.
While EPA believes that confining all
mature and immature dairy cattle is
technically feasible, the costs of zero
discharge relative to the costs for Option
3 are very high. Capital costs to comply
with zero discharge increase by two
orders of magnitude. EPA estimates
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annual operating and maintenance costs
would rise between one to two orders of
magnitude above the costs for Option 3.
These costs may create a barrier to entry
for new sources. In addition, EPA
believes selecting this option could have
the unintended consequence of
. encouraging dairies to shift calves and
heifers offsite to standalone heifer
raising operations (either on land owned
by the dairy or at contract operations) to
avoid building calf and heifer barns. If
these offsite calf/heifer operations are of
a size that they avoid being defined as
a CAFO, the manure from the immature
animals would not be subject to the
effluent.guidelines.
EPA is not basing requirements for
new dairies on the zero discharge option
for the reasons discussed above. EPA
solicits comment on the approach used
to estimate the costs for new dairies to
comply with a zero discharge
requirement. Comments are particularly
solicited on aspects such as: converting
from flush systems to underpit manure
storage; types of housing for calves and
heifers; and whether the potential for
uncontrollable amounts of precipitation
runoff have been sufficiently eliminated
(including from silage). EPA also solicits
comment on a regulatory scenario that
would establish a zero discharge
requirement for manure and process
wastewater from bams (housing either
mature or immature dairy cattle) and the.
milking parlor, but would maintain the
current allowance for overflow of runoff
from drylot areas.
. As an alternative to underpit manure
storage, dairies could achieve zero
discharge for parlor-wastes and barn
flush water by constructing systems
such as anaerobic digesters and covered
lagoons. These covered systems, if
properly operated, can facilitate
treatment of the manure and offer
opportunities to reduce air emissions.
The resulting liquid and solid wastes
would be more stable than untreated
manure. EPA solicits comment on the
usefulness of applying stabilization or
treatment standards to liquid and slurry
manures prior to land application.
Commenters encouraging the use of
such standards should recommend
appropriate measurement parameters .
such as volatile solids, BOD, COD, and
indicator organism reductionfs) to
establish stability or treatment levels.
EPA- has not identified any basis for
rejecting the zero discharge option for
dairies solely due to animal health
reasons. EPA solicits comment on the
technical feasibility of confining mature
and/or immature dairy cattle in barns at
all times.
Ten-year protection period. The NSPS
that are currently codified in part 412
will continue to have force and effect for
a limited universe of CAFOs. For this
reason, EPA is proposing to retain the
NSPS promulgated in 1974 for part 412.
Specifically, following promulgation of
the final rule that revises part 412, the
1974 NSPS would continue to apply for
a limited period of time to certain new
sources and new dischargers. See CWA
section 306(d) and 40 CFR 122.29(d).
Thus, if EPA promulgates revised NSPS
for part 412 in December 2002, and
those regulations take effect in January
2003, qualified new sources and new
dischargers that commenced discharge
after January 1993 but before January
2003 would be subject to the currently
codified NSPS for ten years from the
date they commenced discharge or until
the end of the period of depreciation or
amortization of their facility, whichever
comes first. See CWA section 306 (d) and
40 CFR 122.29(d). After that ten year
period expires, any new or revised BAT
limitations would apply with respect to
toxic and noncpnventional pollutants.
Limitations on conventional pollutants
would be based on the!974 NSPS unless
EPA promulgates revisions to BPT/BCT
for conventional pollutants that are
more stringent than the 1974 NSPS.
Rather than reproduce the 1974 NSPS
in the proposed rule, EPA proposes to
refer permitting authorities to the NSPS
codified in the 2000 edition of the Code
of Federal Regulations for use during
the applicable ten-year period.
8. Pretreatment Standards for New or
Existing Sources (PSES AND PSNS)
EPA is not proposing to establish
Pretreatment Standards for either new
or existing sources. Further, EPA is
withdrawing the existing provisions
entitled "Pretreatment standards for
existing sources" at §§412.14, 412.16,
412.24, 412.26. Those existing
provisions establish no limitations. The
vast majority of CAFOs are located in
rural areas that do not have access to
municipal treatment systems. EPA is not
aware of any existing CAFOs that
discharge wastewater to POTWs at
present and does not expect new
sources to be constructed in areas where
POTW access will be available. For
those reasons, EPA is not establishing
national pretreatment standards.
However, EPA also wants to make it
clear that if a CAFO discharged
wastewater to a POTW, local
pretreatment limitations could be
established by the Control Authority.
These local limits are similar to BPJ
requirements in an NPDES permit.
9. Effluent Guidelines Controls for
Pathogens
The third most common reason for
waterbddies being listed on State
§ 303(d) lists as an impaired watershed
is pathogens. Degradation of surface
waters by excessive levels of pathogens
has been attributed to several sources,
including natural wildlife, faulty septic
systems, and animal agriculture. As
described in Section 5, stream water
quality may be impacted by animal
feeding operations due to feedlot surface
runoff, spills from liquid
impoundments, tile drain effluent,
leaching and runoff from land receiving
manure, and seepage from waste
storage. Degradation of aquatic and
riparian habitat also occurs when
animal grazing operations are poorly
managed.
Iii today's notice, EPA is not setting
specific requirements for the control of.
pathogens. The proposed BAT is
expected to reduce pathogens to surface
waters through the implementation of
the zero discharge requirements at the
production area, and through the
implementation of the PNP at the land
application area. Even without explicit
requirements or limits for pathogen .
controls, EPA expects considerable
reduction in the discharge of pathogens
for reasons described below. Runoff
simulations and loadings analysis
predict a 50% reduction in fecal
coliforms and a 60% reduction in fecal
streptococci under the regulatory
scenario proposed today. Following this
proposal, EPA intends to further analyze
technologies for the treatment or
reduction of pathogens in manure, and
solicits comment on other approaches to
control pathogens.
One mechanism for pathogen
discharge to surface waters is
catastrophic spills, whether caused by
intentional discharges or through
overflow following major storms. EPA
expects the requirements for no
discharge from the production area, as
well as routine inspection and
mandatory management practices for
the control of liquid impoundment
levels, will reduce catastrophic spills.
For the swine and poultry sectors EPA
believes the elimination of the storm
event at which an overflow is allowed
will also reduce discharge of pathogens.
At the production area, operators would
be required to handle animal mortalities
in a manner so as to prevent
contamination of surface water. The
proper use of manure as a fertilizer, as
specified in the proposed regulations,
may result in increased storage capacity
and longer retention times of both liquid
and solid manure storage, allowing
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increased opportunity for natural die-off
of pathogens. For example, runoff from
fields receiving poultry litter that had
been stored prior to application showed
no significant difference in pathogen
content in runoff from control fields
(GEIS, 1999), supporting the conclusion
that pathogen reductions will occur
from increased storage times.
Application rate has been identified
as the single most important manure
management practice affecting pollution
of surface waters from fields receiving
manure. Other practices affecting
pathogen content in the runoff include
amount of application, incorporation
methods, tillage, saturation of the
receiving field, and elapsed time
following application before a rainfall.
In one case study, swine lagoon effluent
applied to tile drained fields at 1.1
inches showed no difference in runoff
quality than the control fields, but
application at three times the rate
showed high levels of fecal coliform in
the surface water. Fecal bacteria in
runoff from land receiving fresh manure
may often be a significant proportion of
the fecal contamination measured in the
surface waters. Vegetated filter strips are
useful in removing pollutants from
runoff on manured fields, particularly
nutrients and sediment, but have not
been identified as generally effective in
reducing bacterial concentrations in the
runoff. Surface applications of manure
are more likely to result in fecal
coliform transport when the soil is
saturated, particularly in fine sandy
loam soils.
EPA believes nutrient management
practices and rates established in the
PNP would limit the quantity of
nutrients that may be applied to fields
and will reduce the occurrence of
manure application to saturated soils, or
when a heavy storm event is predicted.
Nutrient loss to surface water under
these conditions would result in
reduced crop yields and would be
reflected in revisions made to the PNP
in subsequent years translating to a
lower manure application rate.
EPA has collected data on
technologies useful in treating manure
and wastes for pathogens. Anaerobic
digesters and even simple manure
storage for an extended period of time
promote pathogen reductions through
selective growth conditions and natural
die-off over time. The addition of heat,
such as is used in thermophilic
digesters, further reduces pathogens.
Proper composting processes also
involve high temperatures—achieving
temperatures approaching 140 degrees F
in the pile. Heat treatment over several
days is likely to kill protozoans such as
Giardia and Cryptosporidium. The
addition of lime to achieve high alkaline
conditions, e.g., achieving a pH S12,
also is effective at killing many
pathogens by disrupting the cell
membrane or disrupting virus viability.
EPA will continue to analyze the
performance and applicability of
treatments to reduce pathogens in CAFO
waste, and will analyze the costs of
these processes. The processes
described above and others used to
significantly reduce pathogens in
biosolids or sewage sludge such as heat
treatment, drying, thermophilic aerobic
digestion, pasteurization, disinfection, '
and extended storage will be analyzed
for their applicability to animal
manures. EPA will give consideration to
establishing the same performance
standards as required for Class A sludge
in Part 503. If supported by appropriate
data, the final rule could establish these
or other appropriate standards as
performance standards that the wastes
would be required to meet prior to land
application. The CAFO would need to
demonstrate achievement of these
standards prior to land application
because of the impracticability of
measuring the pollutant loadings in any
• eventual runoff from the land
application areas to the waters. EPA
solicits comment on this possible
approach and specifically requests data
relating to pathogen treatment and
reductions that are demonstrated to be
effective on CAFO waste. EPA also
solicits data on management practices
that can be applied to the land
application of manure, which may
reduce pathogens in runoff.
10. Antibiotics
Related to concerns over pathogens in
animal manures are concerns over
antibiotics and other pharmaceuticals
that may be present in the manure. As
discussed in Section V, an estimated
60-80% of all livestock receive
antibiotics. Some antibiotics are
metabolized, and some are excreted
with the manure. In cases where
antimicrobials are administered to
animals through the feed, spilt feed and
wastelage may contribute to antibiotic
content of the waste storage. The
presence of antibiotics in manure and
the environment has been shown to
result in antibiotic resistant pathogens.
EPA solicits comments on the direct
effects of antibiotic residues and
antimicrobial resistance, specifically on
how manure management may
contribute to the problem of antibiotics
reaching the environment and
contributing to pathogen resistance.
EPA also solicits data and information
on effective treatment or practices that
may be implemented by CAFOs to
reduce these releases.
IX. Implementation of Revised
Regulations
A. How Do the Proposed Changes Affect
State CAFO Programs?
EPA is proposing a number of changes
to the effluent guidelines and the
NPDES permit regulations for CAFOs in
today's proposed rule. Under 40 CFR
123.25, authorized NPDES State
programs must administer their permit
programs in conformance with NPDES
requirements, including the
requirements that address concentrated
animal feeding operations (§ 122.23) and
the incorporation of technology-based
effluent limitation guidelines and
standards in permits (§ 122.44). Thus,
today's proposed rule would require the
43 States [note that State is defined in
§ 122.2] with authorized NPDES permit
programs for CAFOs to revise their
programs as necessary to be consistent
with the revised federal requirements.
Current NPDES regulations note that
authorized NPDES State permit
programs are not required to be
identical to the federal requirements;
however, they must be at least as
stringent as the federal program. States
are not precluded from imposing
requirements that are more stringent
than those required under federal
regulations.
Any State with an existing approved '
NPDES permitting program under
section 402 must be revised to be
consistent with changes to federal
requirements within one year of the date
of promulgation of final changes to the
federal CAFO regulations [40 CFR
123.62(e)]. hi cases where a State must
amend or enact a statute to conform
with the revised CAFO requirements,
such revisions must take place within
two years of final changes to the federal
CAFO regulations. States that do not
have an existing approved NPDES
permitting program but who seek
NPDES authorization after these CAFO
regulatory provisions are promulgated
must have authorities that meet or
exceed the revised federal CAFO
regulations at the time authorization is
requested.
m States not authorized to administer
the NPDES program, EPA will
implement the revised requirements.
Such States may still participate in
water quality protection through
participation in the CWA section 401
certification process (for any permits) as
well as through other means (e.g.,
development of water quality standards,
development of TMDLs, and
coordination with EPA).
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EPA is aware that the majority of
States authorized to implement the
NPDES program supplement the NPDES
CAFO requirements with additional
State requirements, and some States
currently regulate or manage CAFOs
predominantly under State non-NPDES
programs. It has been suggested that
EPA provide a mechanism through
which State non-NPDES GAFO
programs can be recognized alternatives
that would be authorized under the
GWA.
No permit issued by a non-NPDES
program will satisfy the NPDES permit
requirement. Facilities required to be
covered by a NPDES permit must obtain
a permit from an agency authorized to
issue a NPDES permit. However, EPA
believes that the current NPDES
program provides a reasonable degree of
flexibility consistent with CWA
requirements, and that the proposed
CAFO regulation provides opportunities
to incorporate State programs in several
ways.
It is possible for non-NPDES State
programs that currently regulate AFOs
to gain EPA's approval as NPDES-
authorized programs. Such a change
would require a formal modification of
the State's approved NPDES program,
and the State would have to
demonstrate that its program meets all
of the minimum criteria specified in 40
CFR Part 123, Subpart B for substantive
and procedural regulations. Among
other things, these criteria include the
restriction that permit terms may not
exceed 5 years, and include provisions
on public participation in permit
development and enforcement, and EPA
enforcement authority.
hi addition, today's proposal provides
specific flexibility on particular issues.
First, with regard to the off-site transfer
of manure, EPA is requiring under one
co-proposed option that the CAFO
operator obtain a certification from
recipients that, if they intend to land
, apply the manure, it will be done
according to appropriate agricultural
practices. EPA is proposing to waive
this requirement in a State that is
implementing an effective program for
addressing excess manure generated by
CAFOs. Second, EPA is proposing to
require that processors be permitted, or
co-permitted, along with their contract
producers. EPA is requesting comment
on an option that would waive this
requirement in certain instances in
States with effective programs for
managing excess manure. EPA is also
soliciting comment on one particular
type of program, an Environmental
Management System developed by the
processor, as sufficient to waive co-
permitting requirements. EPA is
interested in comments on other
specific requirements of today's
proposal that might be satisfied in
whole or in part by State program
requirements. This could include ways
to ensure that states with unique
programs that meet or exceed the
provisions of the revised regulations
and the CWA requirements could utilize
their own programs that include similar
objectives such as enhanced water
quality protection, public participation
and accountability.
A third possible means of providing
flexibility for States would be available
if the three-tier regulatory structure is
adopted in the final regulation. In the
three-tier structure, all facilities over
1,000 AU would be considered CAFOs
by definition, and those between 300
AU and 1,000 AU would be CAFOs only
if they meet one of several conditions,
described in detail in Section VII.B.3, or
if designated by the permit authority as
a significant contributor .of pollution to
waters of the U.S. Those with fewer that
300 AU would become CAFOs only if
designated by the permit authority. A
State with an effective non-NPDES
program could succeed in helping many
operations avoid permits by ensuring
they do not meet any of the conditions
that would define them as CAFOs.
EPA is also soliciting comment on
whether or not to adopt both the. two-
tier and the three-tier structures, and to
provide a mechanism to allow States to
select which of the two alternative
proposed structures to adopt in their
State NPDES program. Under this
option, a State could adopt the structure
that best fits with the administrative
structure of their program, and that best
serves the character of the industries
located in their State and the associated
environmental problems. This option is
viable only if the Agency is able to
determine that the two structures
provide substantially similar
environmental benefits by regulating
equivalent numbers of facilities and
amounts of manure. Otherwise, States
would be in a position to choose a less
stringent regulation, contrary to the
requirements of the Clean Water Act. A
discussion of this option can be found
in Section VII.B.4.
The requirements for State NPDES
program authorization are specified
under § 402 (b) of the CWA and within
the broad NPDES regulations (40 CFR
Part 123). These provisions set out
specific requirements for State
authorization applicable to the entire
NPDES program and the Agency does
not believe that broad changes to these
requirements are appropriate in this
proposed rulemaking.
B. How Would EPA's Proposal to
Designate CAFOs Affect NPDES
Authorized States?
Today's proposal would provide
explicit authority, even in States with
approved NPDES programs, for the EPA
Regional Administrator to designate an
AFO as a CAFO if it meets the
designation criteria in the regulations.
EPA's authority to designate AFOs as
CAFOs would be subject to the same
criteria and limitations to which State
designation authority is subject.
However, EPA does not propose to
assume authority or jurisdiction to issue
permits to the CAFOs that the Agency
designates in approved NPDES States.
That authority would remain with the
approved State. EPA requests comment
on this prosed new designation
authority.
C. How and When Will the Revised
Regulations be Implemented? '
EPA anticipates that this these
proposed regulations will be
promulgated as final regulations in
December, 2002, and published in the •
Federal Register shortly thereafter
(approximately January, 2003). As
mentioned, authorized States programs
will need up to two years after that date
to revise their programs to reflect the
new regulations. Following a State's
revision of its program and approval of
the revisions by EPA, we expect many
States to want additional time to
develop new or revised CAFO general
permits. EPA believes it is reasonable to
allow States one additional year to
develop these new or revised general
permits. To summarize, some States will
need until approximately January
2006—i.e., three years after the final
rule is published—before they can make
CAFO general permits available that
reflect the new regulations in the State.
At the same time, once these
regulations are finalized, we estimate
that there will be a large number of
operations that will need to apply for a
permit, described in Section VII.B.4. It
is important to take into account that
some States will not be making CAFO
general permits available to these
facilities until three years after the final
rule. If EPA were to make the new Part
122 regulations effective shortly after we
issue the final rule (January 2003), there
would be large numbers of facilities that
would be newly defined as CAFOs at
that time. They would be required to
apply for a permit right away, but States
would not be able to issue "general
permits at that time or a large number
of individual permits all at once. This
would leave the facilities potentially in
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the detrimental position of being
unpermitted dischargers.
To avoid this situation, EPA proposes
that the revisions to the CAFQ
definition in part 122 (including, for
example, changes to the threshold
number of animals to qualify as a CAFO
and other changes such as the
elimination of the 25-year, 24-hour
storm exemption) would not take effect
until three years after publication of the
final rules. See proposed section
122.23(f). We expect, therefore, that
these changes would not take effect
until approximately January, 2006.
Operations that are brought within the
regulatory definition of a CAFO for the
first time under these regulatory
revisions would not be defined as
CAFOs under final and effective
regulations until that date.
EPA also considered an alternate
approach in which the effective date for
the part 122 revisions would be
different in each State, depending on
when the State actually adopted and got
approval for the changes and issued
general permits. An advantage of this
approach would be that the new
regulations would potentially be
effective at an earlier date, i.e., before
January 2006, in some States. EPA is not
proposing this approach, however. We
decided that it would be preferable to
provide one uniform effective date for
these particular revisions, which would
provide necessary clarity and
consistency to the national NPDES
program for CAFOs. EPA does seek
comment, however, on which approach
would be preferable to adopt in the final
regulations. States, however, are free to
implement more stringent requirements,
and may choose to implement the
revised CAFO definition at an earlier
date.
It should be noted that EPA is
proposing this delayed effective date
only for the proposed regulatory
changes that affect which operations
would be defined as CAFOs. There is no
need to delay the effective date of any
of the other revisions EPA is proposing
to the CAFO regulations at 40 CFR part
122, such as those that specify land
application requirements and other
requirements. These other revisions to
the part 122 regulations would become
effective 60 days after publication of the
final regulations (January 2003). For any
operation that is a CAFO according to
the current definition and that is being
permitted after that date, or having its
permit renewed, the permit would be
developed under these new part 122
provisions.
EPA is proposing that the revised
effluent guidelines, once promulgated as
final regulations, would be effective 60
days after promulgation. The 1989
statutory deadline for meeting BAT has
long passed, and we do not believe there
is any reason why permit writers could
not begin incorporating the revised
effluent guidelines into permits
beginning 60 days after promulgation.
If a CAFO submits a timely
application for a permit renewal, but
has not received a decision on that
application prior to the expiration date
of the original permit, then the original
permit would be administratively
"continued" until there is a decision
from the permit authority on the new
application (in EPA-administered States
and States with comparable
administrative procedure laws). If that
continuance lasts beyond the date that
is the effective date of the revised
NPDES regulations and effluent
guidelines, then the CAFO's new permit
would reflect both sets of new
regulations.
EPA also proposes to adopt specific
timing requirements in the permit with
respect to the CAFO's development of
PNPs. As described in Section VIII, EPA
proposes to establish BAT as
encompassing the following timing
requirements: (1) for all new permittees
and for applicants who hold existing
individual permits, compliance with the
PNP would be an immediate
requirement of the permit. Therefore,
the draft PNP must be submitted to the
permit authority along with the permit
application or NOI; the final PNP must
be adopted by the permittee within 90
days of being permitted; (2) for
applicants who are authorized under an
existing general permit, the permittee
must develop a Permit Nutrient Plan
within 90 days of submittal of the NOI;
and (3) the PNP for all CAFOs would
need to include milestones for
implementation. This time is necessary
because, while operators can begin
preparing necessary data, it would be
difficult to develop a PNP before the
permit authority issues a final permit
that specifies the terms and conditions
of the permit. (Operators of existing
CAFOs with individual NPDES permits,
who must submit their draft PNP with
the permit application, are expected to
reapply for coverage under the revised
regulation early enough to provide time
to develop its PNP without causing a
lapse in coverage.) For facilities that
have been designated as CAFOs, the
permit writer will develop the
implementation schedule in order to
provide reasonable time to prepare the
PNP.
Prior to the effective date of the
revised regulations, State and EPA
permit authorities will be issuing
permits to facilities that currently meet
the definition of a CAFO under the,
existing regulations or that have been
designated as CAFOs. Consistent with
the AFO Strategy, discussed in section
III.B., during 2000 to 2005-States with
authorized NPDES programs are to focus
on issuing permits to the largest CAFOs,
those with 1,000 AU or greater. In States
where EPA is the permit authority, EPA
will issue permits to operations defined
as CAFOs that are over 300 AU. The
permits are valid for a maximum of five
years, at which time these facilities
would obtain new permits under the
revised regulation.
One of the significant changes to the
NPDES and ELG regulation for CAFOs
will be the requirement to develop and
implement Permit Nutrient Plans that
are developed, or reviewed and
approved, by certified planners.
Concern has been raised about the
availability of the necessary expertise to
develop and certify the plans. EPA
believes that there will be sufficient lead
time before this regulation is
implemented to expect the market to
have developed the CNMP and PNP
planning expertise and infrastructure
because, during this period, CNMPs will
be developed under both the USDA
voluntary program and EPA's Round I
permitting.
For facilities subject to the
requirements of the revised regulation,
EPA anticipates that during the period
between the time this regulation is
promulgated arid the time it is effective,
operators will be able to anticipate the
status of their facilities, and therefore
can begin gathering data that will be
needed for the Permit Nutrient Plan and
other requirements, such as soil type,
manure sampling, cropping information, -
and other data needed to calculate the
allowable manure application rate.
(Note: States are supposed to have
adopted their NRCS 590 standard by
May 2001.)
EPA also proposes that CAFOs that
are new sources may not receive permit
coverage until the PNP is developed. In
this case, a complete application must
include the PNP. The owner or operator
of a new facility is expected to design
and construct the new facility in a
manner that anticipates the ELG and
NPDES requirements for manure
management, rather than incurring the
costs of retrofitting an already
constructed facility.
EPA recognizes that some practices
such as liners and groundwater wells for
beef and dairy operations may take time
to implement. The PNP will include a
schedule for implementing the
provisions of the PNP, including
milestones with dates.
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3073
Facilities Constructed After the
Proposed Regulation is Published. EPA
is soliciting comment on whether the
revised regulations should apply 60
days after publication of the final rule
to facilities that commence operation
after that date, even if they would not
be defined as a CAFO under the existing
rules. Although EPA is proposing to'
delay for three years the effective date
of the proposed regulations for existing
facilities that are not currently defined
as CAFOs, it is considering whether to
require all facilities defined as CAFOs
under the final rule that commence
operation after the final rule is
published to obtain an NPDES permit
and comply with the other requirements
of the final rule. For example, a dry
poultry operation or an animal feeding
operation of 501 cattle that is
constructed during the three year period
after publication of the final rule might
be required to comply immediately with
the revised regulations rather than
remaining outside the scope of the
NPDES program until three years after
publication of the final rule.
Requiring newly constructed facilities
to obtain permits does not pose the
same problem as requiring all existing
AFOs which are not defined as CAFOs
under the current rule to obtain permits
immediately after promulgation of the
final rule. Once a new definition of a
CAF0 becomes effective, a large number
of existing facilities would need a
permit on the same date. EPA expects
that most existing facilities will seek
coverage under a general permit.
However, EPA and authorized States
will need some time after the final rule
is promulgated to develop those general
permits. An existing facility would face
the dilemma of either ceasing operations
or discharging without a permit if it was
required to obtain a permit but none
was available. By contrast, new facilities
would commence operation over a
period of time and present less of a
burden on permit authorities. If a
general permit was not available,
issuing individual permits to the
smaller number of newly constructed
facilities would present less of a burden.
If all else fails, a newly constructed
facility could not commence operation
until it had a permit. This approach
would be consistent with EPA's general
approach for regulation of .new sources
. and new dischargers, who are required
to obtain an NPDES permit (and comply
with any applicable NSPS) prior to
commencing operation. See 40 CFR
122.29,124.60(a). Finally, unlike an
existing facility, a newly constructed
facility is in a better position to plan its
facility to comply with the revised
regulations.
If EPA did not delay the effective date
for facilities that are constructed after
the final rule is published, the rule
would address additional sources
sooner. On the other hand it would
further complicate the regulatory
structure because it would temporarily
create another category of facilities. EPA
solicits comments on whether all
provisions of the rule should be
effective 60 days after the final rule is
published for facilities that are
constructed after that date.
D. How Many CAFOs are Likely to be
Permitted in Each State and EPA
Region?
Tables 9-1 and 9-2 delineate the
number of facilities, in each State and
EPA Region, that are expected to be
affected by either of today's proposed
two-tier and three-tier structures,
respectively. In both proposed
structures, all CAFOs with more than
1,000 AU would be required to apply for
a NPDES permit. The differences lie
primarily in how the middle-sized
operations are affected.
BILLING CODE 6560-50-P
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001 / Proposed Rules
Table 9-1. Projected Estimated Number of Potential CAFOs Potentially Regulated Under
the Three-Tier Structure by Region, State and Size
EPA
Region
Region 1
Region 2
Region 3
legion 4
legion 5
State
Connecticut
Maine
Massachusetts
New
Hampshire
Rhode Island
Vermont
New Jersey
New York
Delaware
Maryland
Pennsylvania
Virginia
West Virginia
Alabama
Florida
Georgia
Kentucky
Mississippi
N. Carolina
S. Carolina
Tennessee
Illinois
, Indiana
Michigan
Minnesota
Ohio
Wisconsin
<300AU
0
0
0
0
0
0
0
0
0
0
0
0
0
•
0
0
0
0
0
0
0
0
1
1
1
2
0
3
Regiona
Subtotal
0
0
0
0
8
300-
1,000 AU
39
60
41
29
c,
129
27
514
332
437
628
551
135
1,224
247
1,360
233
766
1,454
306
265
461
455
345
785
369
574
Regiona]
Subtotal
303
542
2,084
5,854
2,988
>1,000
AU
9
8
7
4
0
15
6
79
97
137
321
216
75
557
169
834
179
433
1,218
201
114
377
328
144
496
217
141
Regiona]
Subtotal
' 43
85
845
3,706
1,704
Total
48
68
48
. 33
5
144
33
593
429
573
949
767
210
1,782
416
2,193
412
1,199
2,672
508
378
839
784
490
1,283
586
718
Regional
Subtotal
!
346
627
2,929
9,560
4,700
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001 /Proposed Rules
3075
EPA
Region
Region 6
Region 7 •
Region 8
Region 9
RegionlO
State
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
Iowa
Kansas
Missouri
Nebraska
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
Arizona
California
Hawaii
Nevada
, Alaska
Idaho
Oregon
Washington
Total Potential Permittees
<300AU
0
0
0
0
0
2
0
0
. 0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
10
Regional
Subtotal
0
2
0
0
0
300-
1,000 AU
1,418
211
30
289
841
1,440
188
. 449
442
121
32
35
181
123
18
30
956
16
15
3
176
156
320
19,260
Regional
Subtotal
2,789
2,519
509
1,017
655
>1,000
AU
580
86
112
175
675
1,318
277
321
641
210
55
28
,. 177
53
24
83
1,031
16
20
1
151
72
168
12,660
Regional
Subtotal
1,629
2,557
548
1,151
392
Total
1,999
297
141
464
1,516
2,760
465
770
1,083
331
87
63
358
176
42
113
1,988
33
35
4
328
228
488
31,930
Regional
Subtotal
4,418
5,078
1,057
2,168
1,047
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001 / Proposed Rules
Note: An additional 7,000 facilities in the 300 AU to 1,000 AU size category would potentially
be subject to the rule, but are projected to file a certification indicating that they do not need to
apply for a permit.
Table 9-2. Projected Estimated Number of Potential CAFOs Potentially Regulated Under
the Two-Tier Structure by Region, State and Size
EPA
Region
Region 1
Region 2
Region 3
Region 4
•
legion 5
State
Connecticut
Maine
Massachusetts
New
Hampshire
Rhode Island
Vermont
New Jersey
New York
Delaware
Maryland
Pennsylvania
Virginia
West Virginia
Alabama
Florida
Georgia
Kentucky
Mississippi
N. Carolina
S. Carolina
Tennessee
Illinois
<500AU
1
1
1
1
0
3
1
21
'3
5
15
10
1
1
1
5
7
1
0
1
0
14
Regional
Subtotal
7
22
34
16
500-
1,000 AU
22
30
21
15
2
64
15
259
169
229
380
325
94
719
178
936
165
488
911
231
148
420
Regional
Subtotal
153
274
1,197
3,776
>1,000
AU
9
8
7
4
0
15
6
79
97
137
320
216
75
557
170
833
179
433
1,221
202
114
377
Regional
Subtotal
43-
85
846
3,710
Grand
Total
32
39
29
20
•3
82
22
359
268
371
715
552
170
1,278
349
1,774
351
922
2,133
434
261
811
Regional
Subtotal
204
380
2,076
7,502
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001/Proposed Rules
3077
EPA
Region
Region 6
Region 7
Region 8
Region 9
RegionlO
State
Indiana
Michigan
Minnesota
Ohio
Wisconsin
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
Iowa
Kansas
Missouri
Nebraska
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
Arizona
California
Hawaii
Nevada
Alaska
Idaho
Oregon
Washington
Total Potential Permittees
<500AU
6
9
30
- 3
25
1
0
0
0
0
58
5
9
11
0
0
0
0
0
0
0
0
0
0
0
0
0
0
250
Regional
Subtotal
87
1
83
0
0
0
250
500-
1,000 AU
396
222
621
269
309
777
120
26
165
532
1,374
182
323
437
81
25
27
149
65
9
23
545
10
8
2
97
82
167
12,860
Regional
Subtotal
2,237
1,620
2,315
355
586
348
12,860
>1,000
AU
328
144
496
217
141
579
86
112
175
676
1,318
277
321
640
210
55
28
177
53
24
83
1,029
16
21
1
151
72
169
12,660
Regional
Subtotal
1,703
1,628
2,556
548
1,149
393
12,660
Grand
Total
730
375
1,147
489
475
1,357
206
138
340
1,208
2,750
464
652
1,087
291
80
54
326
118
33
106
1,574
26
29
3
248
153
336
25,770
Regional
Subtotal
4,027
3,249
4,953
902
1,735
741
25,770
BILLING CODE 6560-50-C
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As described in today's preamble, the
three-tier structure would affect more
facilities because all AFOs with 300 AU
or more would be required to do
something. However, not all would be
required to apply for a permit, and,
depending on the vigor with which
States and AFOs seek to avoid the
conditions defining these facilities as
CAFOs, the actual number of permittees
could be smaller. EPA projects that a
minimum of 4,000 middle-sized
facilities and a maximum of 19,000
would apply for a permit under the
three-tier structure. By contrast, the
proposed two-tier structure would
require all 13,000 facilities between 500
AU and 1,000 AU to apply for a permit.
Further, the number of small facilities
likely to be designated differs between
the two proposed structures. Under the
three-tier structure, EPA expects very
few AFOs to be designated, potentially
10 per year nationally. Under the two-
tier structure, however, this number is
likely to rise to 50 per year, given that
AFOs from 300 AU to 499 AU have the
potential to generate significant
quantities of manure that, if not
properly managed, may lead the facility
to be a significant contributor of
pollution to the waters.
E. Funding Issues
While most CAPO owners and
operators are interested in taking
appropriate measures to protect and
preserve the environment, there are
legitimate concerns over the costs of
doing so. While EPA's cost analysis
indicates that this rule is affordable,
some businesses in some locales may
experience economic stress. (See
Section X). Further, concern has been
expressed as to whether facilities below
1,000 AU that become CAFOs due to the
changes in this proposed rulemaking
may potentially cause operations to lose
cost-share money available under EPA's
Section 319 Nonpoint Source Program
and USDA's Environmental Quality
Incentive Program (EQIP). Once a
facility is considered a point source
under NPDES, the operation is not
eligible for cost sharing under the
Section 319 nonpoint source program.
However, the USDA EQIP program is in
fact available to most facilities, and
being a,permitted CAPO is not a reason
for exclusion from the EQIP program.
EQIP funds may not be used to pay for
construction of storage facilities at
operations with greater than 1,000
USDA animal units; however, EQIP is
available to these facilities for technical
assistance and financial assistance for
other practices. One USDA animal unit
equals 1,000 pounds of live weight of
any given livestock species or any
combination of livestock species. (The
approximate number of animal
equivalents would be: 1,000 head of
beef; 741 dairy cows; 5,000 swine,
250,000 layers; and 500,000 broilers).
To this end, EPA anticipates that State
and Federal Agencies will facilitate
compliance with this rule by providing
technical assistance and funding for
smaller CAFOs, as available.
F. What Provisions are Made for Upset
and Bypass?
A recurring issue of concern has been
whether industry guidelines should
include provisions authorizing
noncompliance with effluent limitations
during periods of "upsets" or
"bypasses". An upset, sometimes called
an "excursion," is an unintentional
noncompliance occurring for reasons
beyond the reasonable control of the
permittee. It has been argued that an
upset provision is necessary in EPA's
effluent limitations because such upsets
will inevitably occur even in properly
operated control equipment. Because
technology based limitations require
only what the technology can achieve,
it is claimed that liability for such
situations is improper. When confronted
with this issue, courts have disagreed on
whether an explicit upset exemption is
necessary, or whether upset incidents
may be handled through EPA's exercise
of enforcement discretion. Compare
Marathon Oil Co. v. EPA, 564 F.2d 1253
(9th Cir.1977), with Weyerhaeuser v.
Costle, 594 F.2d 1223 (8th Cir. 1979).
See also Sierra Club v. Union Oil Co.,
813 F.2d 1480 (9th Cir. 1987), American
Petroleum Institute v. EPA, 540 F.2d
1023 (10th Cir. 1976), CPC
International, Inc. v. Train, 540 F.2d
1320 (8th Cur. 1976), and FMC Corp. v.
Train, 539 F.2d 973 (4th Cir. 1976).
A bypass, on the other hand, is an act
of intentional noncompliance during
which waste treatment facilities are
circumvented because of an emergency
situation. EPA has in the past included
bypass provisions in NPDES permits.
EPA has determined that both upset and
bypass provisions should be included in
NPDES permits and has promulgated
permit regulations that include upset
and bypass permit provisions. See 40
CFR 122.41. The upset provision
establishes an upset as an affirmative
defense to prosecution for violation of,
among other requirements, technology-
based effluent limitations. The bypass
provision authorizes bypassing to
prevent loss of life, personal injury, or
severe property damage. Consequently,
although permittees in the offshore oil
and gas industry will be entitled to
upset and bypass provisions in NPDES
permits, this regulation does not address
these issues.
G. How Would an Applicant Apply for
Variances and Modifications to Today's
Proposed Regulation?
Once this regulation is in effect, the
effluent limitations must be applied in
all NPDES permits thereafter issued to
discharges covered under this effluent
limitations guideline subcategory. The
CWA, however, provides certain
variances from BAT and BCT
limitations. Under 301(1), the only
variance available for discharges from
the production area is an. FDF variance
under 301(m). For the land application
area, 301(g) variances don't apply
because EPA is not setting BAT effluent
limitations for the five pollutants to
which that provision applies. 301(c) and
FDF variances are available for effluent
limitations covering the land
application area.
The Fundamentally Different Factors
(FDF) variance considers those facility
specific factors which a permittee may
consider to be uniquely different from
those considered in the formulation of
an effluent guideline as to make the
limitations inapplicable. An FDF
variance must be based only on
information submitted to EPA during
the.rulemaking establishing the effluent
limitations from which the variance is
being requested, or on information the
applicant did not have a reasonable
opportunity to submit during the
rulemaking process for these effluent
limitations guidelines. If fundamentally
different factors are determined, by the
permitting authority (or EPA), to exist,
the alternative effluent limitations for
the-petitioner must be no less stringent
than those justified by the fundamental
difference from those facilities
considered in the formulation of the
specific effluent limitations guideline of
concern. The alternative effluent
limitation, if deemed appropriate, must
not result in non-water quality
environmental impacts significantly
greater than those accepted by EPA in
the promulgation of the effluent
limitations guideline. FDF variance
requests with all supporting information
and data must be received by the
permitting authority within 180 days of
publication of the final effluent
limitations guideline (Publication date
here). The specific regulations covering
the requirements for and the
administration of FDF variances are
found at 40 CFR 122.21(rn)(l), and 40
CFR part 125, subpart D.
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3079
X. What Are the Costs and Economic
Impacts of the Proposed Revisions?
A. Introduction and Overview
This section presents EPA's estimates
of the costs and economic impacts that
would occur as a result of today's
proposed regulations. Costs and
economic impacts are evaluated for each
commodity sector, including the beef,
veal, heifer, dairy, swine, broiler, turkey
and egg laying sectors. A description of
each of the ELG technology options and
the NPDES scenarios considered by
EPA, and the rationale for selecting the
proposed BAT Option and NPDES
, Scenario, are provided in Sections VII
and VIE of this document. Detailed
information on estimated compliance
costs are provided in the Development
Document for the Proposed Revisions to
the National Pollutant Discharge
Elimination System Regulation and the
Effluent Guidelines for Concentrated
Animal Feeding Operations (referred to
as the "Development'Document").
EPA's detailed economic assessment
can be found in Economic Analysis of
the Proposed Revisions to the National
Pollutant Discharge Elimination System
Regulation and the Effluent Guidelines
for Concentrated Animal Feeding
Operations (referred to as "Economic
Analysis"). EPA also prepared the
Environmental and Economic Benefit
Analysis of the Proposed Revisions to
the National Pollutant Discharge
Elimination System Regulation and the
Effluent Guidelines for Concentrated
Animal Feeding Operations ("Benefits
Analysis") in support of today's
proposal. These documents are available
at EPA's website at http://www.epa.gov/
owm/afo.htm.
This section presents EPA's estimate
of the total annual incremental costs
and the economic impacts that would be
incurred by the livestock and poultry
industry as a result of today's proposed
rule. This section also discusses EPA's
estimated effects to small entities and
presents the results of EPA's cost
effectiveness and cost-benefit analysis.
All costs presented in this document are
reported in. 1999 pre-tax dollars (unless
otherwise indicated).
B. Data Collection Activities
1. Sources of Data To Estimate
Compliance Costs
As part of the expedited approach to
this rulemaking, EPA has chosen not to
conduct an industry-wide survey of all
CAFOs using a Clean Water Act Section
308 questionnaire. Rather, EPA is
relying on existing data sources and
expertise provided by the U.S.
Department of Agriculture (USDA),
industry, State agriculture extension
agencies, and several land grant
universities. More detailed information
on the data used for,this analysis can be
found in the Development Document
and also the Economic Analysis.
EPA collected and evaluated data
from a variety of sources. These sources
include information compiled through
EPA site visits to over 100 animal
confinement operations and information
from industry trade associations,
government agencies, and other
published literature. EPA also received
information from environmental groups
such as the Natural Resources Defense
Council and the Clean Water Network.
The Agency contacted university
experts, state Cooperatives and
extension services, and state and EPA
regional representatives to identify
facilities for site visits. EPA also
attended USDA-sponsored farm tours
and site visits arranged by other groups,
as well as industry, academic, and
government conferences.
EPA obtained data and information
from several agencies in USDA,
including the National Agricultural
Statistics Service.(NASS), Natural
Resources Conservation Service (NRCS),
the Animal and Plant Health Inspection
Service (APHIS), and the Economic
Research Service (ERS). The collected
data include statistical survey
. information and published reports.
EPA gathered information from a
wide range of published NASS reports,
including annual data summaries for
each commodity group. USDA's NASS
is responsible for objectively providing
important, usable, and accurate
statistical information and data support
services on the structure and activities
of agricultural production in the United
States. Each year NASS conducts
surveys and prepares reports covering
virtually every facet of U.S. agricultural
production. The primary sources of data
are animal production facilities in the
United States. NASS collects voluntary
information using mail surveys,
telephone and in-person interviews, and
field observations. NASS is also
responsible for conducting a Census of
Agriculture. •
EPA's main source of primary USDA
data containing farm level descriptive
information is USDA's Census of
Agriculture (Census). USDA's Census is
a complete accounting of United States
agricultural production and is the only
source of uniform,.comprehensive
agricultural data for every county in the
nation. The Census is conducted every
5 years by NASS. The Census includes
all farm operations from which $1,000
or more of agricultural products are
produced and sold. The most recent
Census reflects calendar year 1997
conditions. This database is maintained
by USDA. Data used for this analysis
were compiled with the assistance of
staff at USDA's NASS. (USDA
periodically publishes aggregated data
from these databases and also compiles
customized analyses of the data to
members of the public and other
government agencies. In providing such
analyses, USDA maintains a sufficient
level of aggregation to ensure the
confidentiality of any individual
operation's activities or holdings.)
USDA's NRCS publishes the
Agricultural Waste Management Field
Handbook, which is an agricultural
engineering guidance manual that
explains general waste management
principles and provides detailed design
information for particular waste
management systems. USDA's
Handbook reports specific design
information on a variety of farm
production and waste management
practices at different types of feedlots.
The Handbook also reports runoff
calculations under normal and peak
precipitation as well as information on
manure and bedding characteristics.
EPA used this information to develop its
cost and environmental analyses. NRCS
personnel also contributed technical
expertise in the development of EPA's
estimates of compliance costs and
environmental assessment framework
by providing EPA with estimates of
. manure generation in excess of expected •
crop uptake. This information is
provided in the record that supports this
rulemaking.
NRCS also compiled and performed.
analyses on Census data that EPA used
for its analyses. These data identify the
number of feedlots, their geographical
distributions, and the amount of
cropland available to land apply animal
manure generated from their confined
feeding operations (based on nitrogen
and phosphorus availability relative to
crop need).
EPA gathered information from
several reports on the livestock and
poultry industries from the National
Animal Health Monitoring System
(NAHMS). USDA's APHIS provides
leadership in ensuring the health and
care of animals and plants, improving
agricultural productivity and
competitiveness, and contributing to the
national economy and public health.
One of its main responsibilities is to
enhance the care of animals. In 1983,
APHIS initiated the NAHMS as an
information-gathering program to
collect, analyze, and disseminate data
on animal health, management, and
productivity. NAHMS conducts national
studies to gather data and generate
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001 / Proposed Rules
descriptive statistics and information
from data collected by other industry
sources.
USDA's ERS provides economic
analyses on efficiency, efficacy, and
equity issues related to agriculture,
food, the environment, and rural
development to improve public and
private decision-making. EPA's analysis
of economic impacts at a model CAFO
references a wide range of published
ERS reports and available farm level
statistical models. ERS also maintains
farm level profiles of cost and returns
compiled from NASS financial data.
Databases and reports containing the
information and data used by EPA in
support of this proposed rule are
available in the rulemaking record.
2. Sources of Data To Estimate
Economic Impacts
To estimate economic impacts, EPA
used farm level data from USDA,
industry, and land grant universities.
The major source of primary USDA data
on farm financial conditions is from the
Agricultural Resources Management
Study (ARMS). ARMS is USDA's
primary vehicle for data collection on a
broad range of issues about agricultural
production practices and costs. These
data provide a national perspective on
the annual changes in the financial
conditions of production agriculture/
USDA's ARMS data provide aggregate
farm financial data, which EPA used for
its cost impact analysis. The ARMS data
provide complete income statement and
balance sheet information for U.S. farms
in each of the major commodity sectors,
including those affected by the
proposed regulations. The ARMS
financial data span all types of farming
operations within each sector, including
full-time and part-time producers,
independent owner operations and
contract grower operations, and
confinement and non-confinement
production facilities.
ERS provided aggregated data for
select representative farms through
special tabulations of the ARMS data
that differentiate the financial
conditions among operations by
commodity sector, facility size (based
on number of animals on-site) and by
major producing region for each sector.
The 1997 ARMS data also provide
corresponding farm level summary
information that matches the reported
average financial data to both the total
number of farms and the total number
of animals for each aggregated data
category. As with the Census data, ERS
aggregated the data provided to EPA to
preserve both the statistical
representativeness and confidentiality
of the ARMS survey data. ARMS data
used for this analysis are presented in
the Economic Analysis and are available
in the rulemaking record.
EPA obtained additional market data
on the U.S. livestock and poultry
industries as a whole from a wide
variety of USDA publications and
special reports. These include: Financial
Performance of U.S. Commercial Farms,
1991-1994; USDA Baseline Projections
2000, Food Consumption, Prices and
Expenditures, 1970-1997; Agricultural
Prices Annual Summary; annual NASS
statistical bulletins for these sectors; and
data and information reported in
Agricultural Outlook and ERS's
Livestock, Dairy, and Poultry Situation
and Outlook reports. Other source
material is from ERS's cost of
production series reports for some
sectors and trade reports compiled by
USDA's Foreign Agricultural Service
(FAS). Information on the food
processing segments of these industries
is from the U.S. Department of
Commerce's Census of Manufacturers
data series. Industry information is also
from USDA's Grain Inspection Packers
and Stockyards Administration (GBPSA).
Industry and the associated trade
groups also provided information for
EPA's cost and market analyses. In
particular, the National Cattlemen's Beef
Association (NCBA) conducted a survey
of its membership to obtain financial
statistics specific to cattle feeding
operations. EPA used these and other
data to evaluate how well the ARMS
data for beef operations represent
conditions at cattle feedyards. EPA also
obtained industry data from the
National Milk Producers Federation
(NMPF) and the National Pork
Producers Council (NPPC).
EPA also used published research by
various land grant universities and their
affiliated research organizations, as well
as information provided by
environmental groups.
Databases and reports containing the
information and data provided to and
used by EPA in support of this proposed
rule are available in the rulemaking
record.
C. Method for Estimating Compliance
Costs
l.Baseline Compliance
For the purpose of this analysis, EPA
assumes that all CAFOs that would be
subject to the proposed regulations are
currently in compliance with the
existing regulatory program (including
the NPDES regulations and the effluent
limitations guidelines and standards for
feedlots) and existing state laws and .
regulations. As a practical matter, EPA
recognizes that this is not true, since
only 2,500 operations out of an
estimated 12,700 CAFOs with more than
1,000 AUhave actually obtained
coverage under an NPDES permit and
the remainder may in fact experience
additional costs to comply with the
existing requirements. EPA has not
estimated these additional costs in the
analysis that is presented in today's
preamble because the Agency did not
consider these costs part of the
incremental costs of complying with
today's proposed rule.
To assess 'the incremental costs
attributable to the proposed rules, EPA
evaluated current federal and state
requirements for animal feeding
operations and calculated compliance
costs of the proposed requirements that
exceed the current requirements.
• Operations located in states that
currently have requirements that meet
or exceed the proposed regulatory
changes would already be in
compliance with the proposed
regulations and would not incur any
additional cost. These operations are not
included as part of the cost analysis. A
review of current state waste
management requirements for
determining baseline conditions is
included in the Development Document
and also in other sections of the record
(See State Compendium: Programs and
Regulatory Activities Related to Animal
Feeding Operations compiled by EPA
and available at http://www.epa.gov/
owm/afo.htm#Compendium).
EPA also accounted for current
structures and practices that are
assumed to be already in place at
operations that may contribute to
compliance with the proposed
regulations. Additional information is
also provided in the following section
(X.C.2(a)). This information is also
provided in the Development
Document.
2. Method for Estimating Incremental
CAFO Compliance Costs
a. Compliance Costs to CAFO
Operators. For the purpose of estimating
total costs and economic impacts, EPA
calculated the costs of compliance for
CAFOs to implement each of the
regulatory options being considered
(described in Section VIII of this
preamble). EPA estimated costs
associated with four broad cost
components: nutrient management
planning, facility upgrades, land
application, and technologies for
balancing on-farm nutrients. Nutrient
management planning costs include
manure and soil testing, record keeping,
monitoring of surface water and
groundwater, and plan development.
Facility upgrades reflect costs for
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3081
manure storage, mortality handling,
storm water and field runoff controls,
reduction of fresh water use, and
additional farm management practices.
Land application costs address
agricultural application of nutrients and
reflect differences among operations
based on cropland availability for
manure application. Specific
information on the capital costs, annual
operating and maintenance costs, start-
up or first year costs, and also recurring
costs assumed by EPA to estimate costs
and impacts of the proposed regulations
is provided in the Development
Document.
EPA evaluated compliance costs using
a representative facility approach based
on more'than 170 farm level models that
were developed to depict conditions
and to evaluate, compliance costs for
select representative CAFOs. The major
factors used to differentiate individual
model CAFOs include the commodity
sector, the farm production region, and
the facility size (based on herd or flock
size or the number of animals on-site).
EPA's model CAFOs primarily reflect
the major animal sector groups,
including beef cattle, dairy, hog, broiler,
turkey, and egg laying operations.
Practices at other subsector operations
are also reflected in the cost models,
such as replacement heifer operations,
veal operations, flushed caged layers,
and hog grow- and farrow-finish
facilities. EPA used model facilities
with similar waste management and
production practices to depict
operations in regions that were not
separately modeled.
Another key distinguishing factor
incorporated into EPA's model CAFOs
includes information on the availability
of crop and pasture land for land
application of manure nutrients. For
this analysis, nitrogen and phosphorus
rates of land application are evaluated
for three categories of cropland
availability: Category 1 CAFOs are
assumed to have sufficient cropland for
all on-farm nutrients generated,
Category 2 CAFOs are assumed to have
insufficient cropland, and Category 3
CAFOs are assumed to have no
cropland. EPA used 1997 information
from USDA to determine the number of
CAFOs within each category. This
information takes into account which
nutrient (nitrogen or phosphorus) is
used as the basis to assess land
application and nutrient management
costs.
For Category 2 and Category 3 CAFOs,
EPA evaluated additional technologies
, that may be necessary to balance
nutrients. EPA evaluated additional
technologies that reduce off-site hauh'ng
costs associated with excess on-farm
nutrients, as well as to address ammonia
volatization, pathogens, trace metals,
and antibiotic residuals. These
technologies may include Best
Management Practices (BMPs) and
various farm production technologies,
such as feed management strategies,
solid-liquid separation, composting,
anaerobic digestion, and other retrofits
to existing technologies. EPA
considered all these technologies for
identification of "best available
technologies" under the various options
for BAT described in Section VIII.
EPA used soil sample information
compiled by researchers at various land
grant universities to determine areas of
phosphorus and nitrogen saturation, as
described in the Development
Document. This information provides
the basis for EPA's assumptions of
which facilities would need to apply
manure nutrients on a phosphorus- or
nitrogen-based standard.
EPA's cost models also take into
account other production factors,
including climate and farmland
geography, land application and waste
management practices and other major
production practices typically found in
the key producing regions of the
country. Model facilities reflect major
production practices used by larger
confined animal farms, generally those
with more than 300 AU. Therefore, the
models do not reflect pasture and
grazing type farms, nor do they reflect
typical costs to small farms. EPA's cost
models also take into account practices
required under existing state regulations
and reflect cost differences within
sectors depending on manure
composition, bedding use, and process
water volumes. More information on the
development of EPA's cost models is
provided in the Development
.Document.
To estimate aggregate incremental
costs to the CAFO industry from
implementing a particular technology
option, EPA first estimated the total cost
to a model facility to employ a given
technology, including the full range of
necessary capital, annual, start-up, and
recurring costs. Additional detailed
information on-the baseline and
compliance costs attributed to model
CAFOs across all sectors and across all
the technology options considered by
EPA is provided in the Development
Document.
After estimating the total cost to an
individual facility to employ a given
technology, EPA then weighted the
average facility level cost to account for
current use of the technology or
management practice nationwide. This
is done by multiplying the total cost of
a particular technology or practice by
the percent of operations that are
believed to use this particular ,
technology or practice in order to derive
the average expected cost that could be
incurred by a model CAFO. EPA refers
to this adjustment factor as the
"frequency factor" and has developed
such a factor for each individual cost
(i.e. each technology) and cost
component (i.e. capital and annual
costs) in each of its CAFO models. The
frequency factor reflects the percentage
of facilities that are, technically, already
in compliance with a given regulatory
option since they already employ
technologies or practices that are
protective of the environment. The
frequency factor also accounts for
compliance with existing federal and
state regulatory requirements as well as,
the extent to which an animal sector has
already adopted or established
management practices to control
discharges.
EPA developed its frequency factors
based on data and information from
USDA's NRCS and NAHMS, state
agricultural extension agencies, industry
trade groups and industry-sponsored
surveys, academic literature, and EPA's
farm site visits. More detailed
information on how EPA developed and
applied these weighting factors is
provided in the Development
Document. To identify where farm level
costs may be masked by this weighting
approach, EPA evaluated costs with and
without frequency factors. The results of
this sensitivity analysis indicate that the
model CAFO costs used to estimate
aggregate costs and impacts, as
presented in this preamble, are stable
across a range of possible frequency
factor assumptions.
The data and information used to
develop EPA's model CAFOs were
compiled with the assistance of USDA,
in combination with other information
collected by EPA from extensive
literature searches, more than 100 farm
site visits, and numerous consultations
with industry, universities, and
agricultural extension agencies.
Additional detailed information on the
data and assumptions used to develop
EPA's model CAFOs that were used to
estimate aggregate incremental costs to
the CAFO industry is provided in the
Development Document.
b. Compliance Costs to Recipients of
CAFO Manure. To calculate the cost to
offsite recipients of CAFO manure
under the proposed regulations, EPA
builds upon the cropland availability
information in the CAFO models,
focusing on the two categories of farms
that have excess manure nutrients and
that need to haul manure offsite for
alternative use or to be spread as
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fertilizer (i.e., Category 2 and Category
3 CAFOs, where facilities are assumed
to have insufficient or no available
cropland to land apply nutrients,
respectively). EPA also uses this
information to determine the number of
offsite recipients affected under select
regulatory alternatives, shown in Tables
10-3 and 10-4.
USDA defines farm level "excess" of
manure nutrients on a confined
livestock farm as manure nutrient
production less crop assimilative
capacity. USDA has estimated manure
nutrient production using the number'of
animals by species, standard manure
production per animal unit, and
nutrient composition of each type of
manure. Recoverable manure is the
amount that can be collected and
disposed by spreading on fields or
transporting off the producing farm.
Depending on the nutrient used to
determine the rate of manure
application [nitrogen or phosphorus),
EPA estimates that approximately 7,500
to 10,000 CAFOs with more than 300
AU are expected to generate excess
manure. This includes about 2,600
animal feeding operations that have no
major crop or pasture land. These
estimates were derived from a USDA
analysis of manure nutrients relative to
the capacity of cropland and
pastureland to assimilate nutrients.
EPA's estimate does not account for
excess manure that is already disposed
of via alternative uses such as
pelletizing or incineration.
For the purpose of this analysis, EPA
assumes that affected offsite facilities
are field crop producers who use CAFO
manure as a fertilizer substitute.
Information on crop producers that
currently receive animal manure for use
as a fertilizer substitute is not available.
Instead, EPA approximates the number
of operations that receive CAFO manure
and may be subject to the proposed
regulations based on the number of
acres that would be required to land
apply manure nutrients generated by
Category 2 and Category 3 CAFOs. EPA
assumes that offsite recipients will only
accept manure when soil conditions
allow for application on a nitrogen
basis. Therefore, the manure application
rate at offsite acres in a given region is
the nitrogen-based application rate for
the typical crop rotation and yields
obtained in that region. EPA then
estimates the number of farms that
receive CAFO manure by dividing the
acres needed to assimilate excess
manure nitrogen by the national average
farm size of 487 acres, based on USDA
data. The results of this analysis
indicate that 18,000 to 21,000 offsite
recipients would receive excess CAFO
manure.
The costs assessed to manure
recipients include the costs of soil
testing and incremental recordkeeping.
• EPA evaluated these costs using the
approach described in Section X.C.2(a).
Excess manure hauling costs are already
included in costs assessed to CAFOs
with excess manure. For the purpose of
this analysis, EPA has assumed that
crop farmers already maintain records
documenting crop yields, crop rotations,
and fertilizer application, and that crop
farmers already have some form of
nutrient management plan for
determining crop nutrient requirements.
EPA estimates, on average, per-farm
incremental costs of approximately $540
to non-CAFOs for complying with the
offsite certification requirements. This
analysis is provided in the Development
Document.
3. Cost Annualization Methodology
As part of EPA's costing analysis, EPA
converts the capital costs that are
estimated to be incurred by a CAFO to
comply with the proposed
requirements, described in Section
X.C.2,to incremental annualized costs.
Annualized costs better describe the
actual compliance costs that a model
CAFO would incur, allowing for the
effects of interest, depreciation, and
taxes. EPA uses these annualized costs
to estimate the total annual compliance
costs and to assess the economic
impacts of the proposed requirements to
regulated CAFOs that are presented in
Sections X.E and X.F.
Additional information on the
approach used to annualize the
incremental compliance costs
developed by EPA is provided in
Appendix A of the Economic Analysis.
EPA uses a 10-year recovery period of
depreciable property based on the
Internal Revenue Code's guidance for
single purpose agricultural or
horticultural structures. The Internal
Revenue Service defines a single
purpose agricultural structure as any
enclosure or structure specifically
designed, constructed and used for
housing, raising, and feeding a
particular kind of livestock, including
structures to contain produce or
equipment necessary for housing,
raising, and feeding of livestock. The
method EPA uses to depreciate capital
investments is the Modified Accelerated
Cost Recovery System (MACRS).
EPA assumes a real private discount/
interest rate of 7 percent, as
recommended by the Office of
Management and Budget. EPA also
assumes standard federal and average
state tax rates across the broad facility
size categories to determine an
operation's tax benefit or tax shield,
which is assumed as an allowance to
offset taxable income.
D. Method for Estimating Economic
Impacts
To estimate economic impacts under
the proposed regulations, EPA
examined the impacts across three
industry segments: regulated CAFOs,
processors, and national markets.
1. CAFO Analysis
EPA estimates the economic impacts
of today's proposed regulations using a
representative farm approach. A
representative farm approach is
consistent with past research that USDA
and many land grant universities have
conducted to assess a wide range of
policy issues, including environmental
legislation pertaining to animal
agriculture. A representative farm
approach provides a means to assess
average impacts across numerous
facilities by grouping facilities into
broader categories to account for the
multitude of differences among animal
confinement operations. Information on
how EPA developed its model CAFOs is
available in the Economic Analysis.
Additional information on EPA's cost
models is provided in the Development
Document. At various stages in the
proposed rulemaking, EPA presented its
proposed methodological approach to
USDA personnel and to researchers at
various land grant universities for
informal review and feedback.
Using a representative farm approach,
EPA constructed a series of model
facilities that reflect the EPA's estimated
compliance costs and available financial
data. EPA uses these model CAFOs to
develop an average characterization for
a group of operations. EPA's cost
models were described earlier in
Section X.C.2(a). From these models,
EPA estimates total annualized
compliance costs by aggregating the
average facility costs across all
operations that are identified for a
representative group. EPA's cost models
are compared to corresponding model
CAFOs that characterize financial
conditions across differently sized,
differently managed, and geographically
distinct operations. As with EPA's cost
models, EPA's financial models are
grouped according to certain
distinguishing characteristics for each
sector, such as facility size and
production region, that may be shared
across a broad range of facilities.
Economic impacts under a post-
regulatory scenario are approximated by
extrapolating the average impacts for a
given model CAFO across the larger
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3083
number of operations that share similar
production characteristics and are
identified by that CAFO model.,
EPA compares its estimated
compliance costs at select model CAFOs
to corresponding financial conditions at
these model facilities. For this analysis,
EPA focuses on three financial measures
that are used to assess the affordability
of the proposed CAFO regulations.
These include total gross revenue, net
cash income, and debt-to-asset ratio.
Financial data used by EPA to develop
its financial models are from the 1997
ARMS data summaries prepared by ERS
and form the basis for the financial
characterization of the model CAFOs.
To account for changes in an operation's
income under post-compliance
conditions, EPA estimated the present
value of projected facility earnings,
measured as a future cash flow stream.
The present value of cash flow
represents the value in terms of today's
dollars of a series of future receipts. EPA
calculated baseline cash flow as the
present value of a 10-year stream of an
operation's cash flow. EPA projected
future earnings from the 1997 baseline
using USDA's Agricultural Baseline
Projections data. Section 4 of the
Economic Analysis provides additional
information on the baseline financial
conditions attributed to EPA's model
CAFO across all sectors as well as
information on the data and
assumptions used to develop these
models.
EPA evaluates the economic
achievability of the proposed
requirements based on changes in
representative financial conditions for
select criteria, as described in Section
X.F.I. For some sectors, EPA evaluates
economic impacts at model CAFOs
under varying scenarios of cost
passthrough between the CAFO and the
latter stages in the food marketing chain,
such as the processing and retail sectors.
These three scenarios include: zero cost
passthrough, full (100 percent) cost
passthrough, and partial cost
passthrough (greater than.zero). Partial
cost passthrough values used for this
analysis vary by sector and are based on
estimates of price elasticity of supply
and demand reported in the academic
literature. This information is available
in the docket.
Table 10-1 lists the range of
annualized compliance costs developed
for EPA's analysis. Annualized costs for
each sector are summarized across the
estimated range of minimum and
maximum costs across all facility sizes
and production regions and are broken
out by land use category (described in
Section X.C.2). In some cases,
"maximum" costs reflect average costs
for a representative facility that has a
large number of animals on-site; EPA's
cost models for very large CAFOs are
intended to approximate the average
unit costs at me very largest animal
feeding operations. More detailed
annualized costs broken out by
production region, land use category,
and broad facility size groupings are
provided in the Economic Analysis.
Estimated annualized costs shown in
Table 10-1 are presented in 1999 dollars
(post-tax). All costs presented in today's
preamble have been converted using the
Construction Cost Index to 1999 dollars
from the 1997 dollar estimates that are
presented throughout the Development
Document and tie Economic Analysis.
, As shown in the table, costs for Category
3 CAFOs may be lower than those for
Category 1 CAFOs since facilities
without any land do not incur any
additional incremental costs related to
hauling. EPA has assumed that these
operations are already hauling off-site in
order to comply with existing
requirements. More detailed cost
estimates for individual technologies are
provided in the Development
Document.
To assess the impact of the
regulations on offsite recipients of
CAFO manure, EPA compares the
estimated cost of this requirement to
both aggregate and average per farm
production costs and revenues (a sales
test). This analysis uses EPA's estimated
compliance costs and 1997 aggregate
farm revenues and production costs
reported by USDA. For the purpose of
this analysis, EPX assumes that these
costs will be incurred by non-CAFO
farming operations (i.e., crop producers)
that use animal manures as a fertilizer
substitute and will not be borne by ,
CAFOs.
TABLE 10-1.—RANGE OF ANNUALIZED MODEL CAFO COMPLIANCE COSTS ($1999, POST-TAX)
Sector
Veal '•- •
Heifers .'
Urtrtc- PP2
Turkeys •
Category 1 1
Minimum
Maximum
Category 2 1
Minimum
Maximum
Category 3 1
Minimum
(1999 dollars per model CAFO across all size group
2,100
1,500
1,700
5,200
300
300
4,800
300
1,500
4,900
986,000
8,100
16,900
44,600
52,300
82,900
36,300
24,800
59,000
111,900
8,500
1,100
2,000
14,700
5,500
8,800
4,400
2,100
1,400
. 4,800
1,219,800
6,100
17,900
67,700
63,500
100,600
25,800
29,300
31,700
29,500
1,000
1,000
1,200
4,200
11,400
10,000
3,900
1,500
1,200
3,800
Maximum
s>
896,700
6,000
11,700
40,300
81,500
115,500
21,400
18,100
27,600
20,800
'.finiSh (includes breeder and nursery pigs); "Hogs: GF- are
"Layers: wet" are operations with liquid manure systems; "Layers: dry are operations
SgorffbAFOs have sufficient cropland for all on-farm nutrients generated; Category 2 CAFOs have insufficient cropland; and-Category 3
systems.
co-permitting requirements. EPA bases
these assumptions on data from the
Department of Commerce on the
number of slaughtering and meat
packing facilities in these sectors and
information from USDA on the degree of
2. Processor Analysis
As discussed in Section VI, EPA
estimates that 94 meat packing plants
that slaughter hogs and 270 poultry
processing facilities may be subject to
the proposed co-permitting
requirements (Section VI). Given the
structure of the beef and dairy sectors
and the nature of their contract
relationships, EPA expects that no meat
packing or processing facilities in these
sectors will be subject to the proposed
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animal ownership at U.S. farms, as
described in Section VI of this
document. Additional information is
provided in Section 2 of the Economic
Analysis. EPA is seeking comment on
this assumption as part of today's
notice.
EPA did not conduct a detailed
estimate of the costs and impacts that
would accrue to individual co-
permittees. Information on contractual
relationships between contract growers
and processing firms is proprietary and
EPA does not have the necessary market
information and data to conduct such an
analysis. Market information is not
available on the number and location of
firms that contract out the raising of
animals to CAFOs or on the number and
location of contract growers, and the
share of production, that raise animals
under a production contract. In
addition, EPA does not have data on the
exact terms of the contractual
agreements between processors and
CAFOs to assess when a processor
would be subject to the proposed co-
permitting requirements, and EPA does
not have financial data for processing
firms or contract growers that utilize
production contracts.
EPA, however, believes that the
framework used to estimate costs to
CAFOs does provide a means, to
evaluate the possible upper bound of
costs that could accrue to processing
facilities in those industries where
production contracts are more widely
utilized and where EPA believes the
proposed co-permitting requirements
may affect processors. EPA's CAFO'
level analysis examines the potential
share of (pre-tax) costs that may be
passed on from the CAFO, based on
market information for each sector.
Assuming that a share of the costs that
accrue to the CAFO are eventually borne
by processors, EPA is proposing that
this amount approximates the
magnitude of the costs that may be
incurred by processing firms in those
industries that may be affected by the
proposed co-permitting requirements.
EPA solicits comment on this approach.
To assess the impact of the
regulations on processors, EPA
compares the passed through
compliance costs to both aggregate
processor costs of production and to
revenues (a sales test). These analyses
use estimated compliance costs, cost
passthrough estimates, and aggregate
revenues and production costs by
processing sector. National processor
cost and revenue data are from the U.S.
Department of Commerce's Census of
Manufacturers data series. For some
sectors, EPA evaluates the impact of the
proposed regulations on processors
under two scenarios of cost passthrough
from the animal production sectors
(described in Section X.D.I), including
full cost and partial cost passthrough.
More detail on this approach is
provided in Section 4 of the Economic
Analysis.
This suggested approach does not
assume any addition to the total costs of
the rule as a result of co-permitting.
This approach also does not assume that
there will be a cost savings to contract
growers as a result of a contractual
arrangement with a processing firm. '
This approach merely attempts to
quantify the potential magnitude of
costs that could accrue to processors
that may be affected by the co-
permitting requirements. Due to lack of
information and data, EPA has not
analyzed the effect of relative market
power between the contract grower and
the integrator on the distribution of
costs, nor the potential for additional
costs to be imposed by the integrator's
need to take steps to protect itself
against liability and perhaps to
; indemnify itself against such liability
through its production contracts. EPA
has also not specifically analyzed the
environmental effects of co-permitting.
EPA has conducted an extensive review.
of the agricultural literature on market
power in each of the livestock and
poultry sectors and concluded that there
is little evidence to suggest that
increased production costs would be
prevented from being passed on through
the market levels. This information is
provided in the rulemaking record.
However, as discussed in Section
VII.C.5, EPA recognizes that some
industry representatives do not support
these assumptions of cost passthrough
from contract producers to integrators
and requests comments on its cost
passthrough assumptions, both in
general and as they relate to the analysis
of processor level impacts under the
proposed co-permitting requirements.
EPA's processor analysis does not
explicitly account for the few large
corporate operations that are vertically
integrated, to the extent that the
corporation owns and operates'all
aspects of the operation, from animal
production to final consumer product.
These operations are covered by EPA's
CAFO analysis to the extent that they
are captured by USDA's farm survey
and are included among EPA's model
CAFOs. While the ARMS data may
include information on CAFOs that are
owned by corporate operations, these
data cannot be broken out to create a
model specifically designed to represent
these operations. Since EPA's analysis
uses farm financial data and n'ot
corporate data, this analysis does not
reflect the ability of corporations to
absorb compliance costs that may be
incurred at CAFOs that are owned by
that entity. EPA expects that its analysis
overestimates the impact to corporate
entities since revenues of corporate
entities are, in most cases, no less than
and are likely to exceed those at a
privately-owned and operated CAFOs.
3. Market Analysis
EPA's market analysis evaluates the
effects of the proposed regulations on
national markets. This analysis uses a
linear partial equilibrium model
adapted from the COSTBEN model
developed by USDA's Economic
Research Service. The modified EPA
model provides a means to conduct a
long-run static analysis to measure the
market effects of the proposed
regulations in terms of predicted
changes in farm and retail prices and
product quantities. Market data used as
inputs to this model are from a wide
range of USDA data and land grant
university research. EPA consulted
researchers from USDA and the land
grant universities in the development of
this modeling framework. The details of
this model are described in Appendix B
of the Economic Analysis.
Once price and quantity changes are
predicted by the model, EPA uses
national multipliers that relate changes
in sales to changes in total direct and
indirect employment and also to
national economic output. These
estimated relationships are based on the
Regional Input-Output Modeh'ng System
(RIMS II) from the U.S. Department of
Commerce. This approach is described
in Section 4 of the Economic Analysis.
E. Estimated Annual Costs of the
Proposed Regulatory Options/Scenarios
As discussed in Section VII and VIII,
EPA considered various! technology
options and also different scope
scenarios as part of the development of
today's proposed regulations. A
summary overview of the ELG options
and NPDES scenarios is provided in
Table 10-2. More detail is available in
Sections VII and VIII of today's
preamble.
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Federal Register/Vol. 66. No. 9/Friday, January 12, 2001 /Proposed Rules
TABLE 10-2.—SUMMARY DESCRIPTION OF OPTIONS/SCENARIOS CONSIDERED BY EPA
3085
Technology Options (ELG)
Option 1
Option 2
Option 3 BAT (Beef/Heifers/Dairy)
Option 4
Option 5 BAT (Swine/Poultry/Veal)
Option 6
Option 7
N-based land application controls and inspection and recordkeeping requirements for the production area
S b°uf rSS the rate of manure application to a P-based rate where necessary (de-
AdSoOption 3 by requiring sampling of surface waters adjacent to production area and/or land under
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Federal Register/Vol. 66. No. 9/Friday, January 12, 2001/Proposed Rules
1. Costs to CAFOs Under the Proposed
Regulations
Tables 10-3 and 10-4 summarize the
total annualized compliance costs to
CAFOs attributed to the proposed two-
tier structure and three-tier structure.
The table shows these costs broken out
by sector and by broad facility size
group. EPA calculated all estimated
costs using the data, methodology and
assumptions described in Sections X B
and X.C.
Under the two-tier structure, EPA
estimates that the incremental
annualized compliance cost to CAFO
operators would be approximately $831
million annually (Table 10-3). Table
10-5 shows estimated costs for the two-
tier structure at the 750 AU threshold,
estimated by EPA to total $721 million
annually. Most of this cost (roughly 70
percent) is incurred by CAFOs with
more than 1,000 AU. Overall, about one-
third of all estimated compliance costs
are incurred within the hog sectors.
Under the three-tier structure, EPA
estimates that the total cost to CAFO
operators would be $925 million
annually (Table 10-4). These costs are
expressed in terms of pre-tax 1999
dollars. (Post-tax costs are estimated at
$573 million and $635 million annually,
respectively, and include tax savings to
CAFOs. EPA uses estimated post-tax
costs to evaluate impacts to regulated
facilities, discussed in Section X.F.).
Estimated total annualized costs for the
three-tier structure include the cost to
permitted CAFOs as well as the
estimated cost to operations to certify to
the permit authority that they do not
meet any ofthe conditions and are thus
are not required to obtain a permit. EPA
estimates certification costs at about $80
million annually, which covers
phosphorus-based PNP costs, facility
upgrades, and letters of certification
from manure recipient. More
information on these costs and how they'
are calculated is provided in Section 5
of the Economic Analysis.
Estimated total annualized costs
shown in Table 10-3 and 10-4 include
costs to animal confinement operations
that may be designated as CAFOs. Total
annualized costs to designated facilities
is estimated at less than one million
dollars annually (Tables 10-3 and 10-
4). As discussed in Section VI, EPA
assumes tHat designation may bring an
additional 50 operations each year
under the two-tier structure; under the
three-tier structure, EPA expects that an
additional 10 operations may be
designated each year. In this analysis,
estimated costs to designated facilities
are expressed on an average annual
basis over a projected 10-year period.
For the purpose of this analysis, EPA
assumes that operations that may be
designated as CAFOs and subject to the
proposed regulations will consist of
beef, dairy, farrow-finish hog, broiler
and egg laying operations under the
two-tier structure. Under the three-tier
structure, EPA estimates that fewer
operations would be designated as
CAFOs, with 10 dairy and hog
operations being designated each year,
or 100 operations over a 10-year period.
Additional information is provided in
the Economic Analysis.
TABLE 10-3.-ANNUAL PRE-TAX COST OF TWO-TIER STRUCTURE (BAT OPTION/SCENARIO 4A), $1999
Sector
Number of
operations
(number) 2
Total >1000AU
500-1000
AU
($1999, millions, pre-tax)
<500 AU 1
Beef
Veal
Heifer
Dairy
Hog ";;;;;;;;;
Broiler •
Layer
Turkey
Subtotal
— 1
T ORf)
90
800
3,760
8,550
9,780
1,640
1,280
25540
0.3
11.6
177.6
294.0
97.1
14.2
19.6
oon 7
191.5
0.03
3.7
108.6
225.5
55.4
9.9
10.4
24.7
0.3
7.9
65.4
67.0
41.6
4.3
9.2
220.2
0.1
NA
NA
3.6
1.5
0.1
NA
NA
5.4
Offsite Recipients
Source: USEPA. See Economic Analysis. Table 6-2 provides informatinn nn
vffiSta^ n0t»?dd dUe '? rOUndin9- NA = ^pS^oSscB^,
IS?8.1 S.sUn?ate3 shown are for designated CAFOs (see Sf>ntinnlvi\ 1/ot'enan
17,923
NA
affected oper
o definitions p
96
840.3
ations.
irovided in Ta
NA
NA|
ble 10-2.
MA
NA
NA
NA
™T6 **" * Si"gle animal ^ The number °f CAFOs shown includes expected defined CAFOs only and
TABLE 10-4.
Sector
— — .
Number of
operations
(number)2
Total
>1000 AU
300-1000
AU
<300 AU 1
($1999, million, pre-tax)
Beef...
Veal ...
Heifer.
Dairy..
Hog....
Regulated CAFOs
3,210
140
980
6,480
8,350
227.7
0.8
14.4
224.6
306.1
191.5
0.03
3.7
108.6
225.5
36.2
0.8
. 10.7
115.3
80.4
0.0
0.0
0.0
0.7
0.2
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Federal Register/Vol. 66, No. 9/Friday, January 12, 20011 Proposed Rules
3087
TABLE 10-4.—ANNUAL PRE-TAX COST OF THREE-TIER STRUCTURE (BAT.OPTION/SCENARIO 3), $1999—Continued
Sector
Turkey ;
Subtotal • •
Number of
operations
13,740
2,010
2,060
31,930
Total
116.6
15.3
24.9
930.4
>1000AU
55.4
9.9
10.4
605.0
300-1000
AU
61.2
5.4
14.5
324.5
<300 AU 1
0.0
0.0
0.0
0.8
Other Farming Operations
Offsite Recipients
Total
21,155
NA
11.3
936.7
NA
NA
NA
NA
NA
NA
Table 10*.
SfSfSA StKSSf£ffS&S^S^ The number of CAFOs shown includes expected defined CAFOs only and
excludes designated facilities.
2. Costs to CAFOs of Alternative
Regulatory Options and Scenarios
Alternative regulatory options
considered by EPA during the
development of today's proposed
regulations include various technology
options and also different regulatory
scope scenarios. Sections VII and VIII
present the Agency's rationale for each
regulatory decision.
Table 10-5 summarizes the total
annualized (pre-tax) costs of alternative
technology options for each NPDES
scenario and ELG technology basis
considered by EPA. As shown in the
table, the total estimated costs across
. these options range from $355 million
(Option I/Scenario 1) to $1.7 billion
annually (Option 5, applicable to all the
animal sectors, and Scenario 4b). By
scenario, this reflects the fact that fewer
CAFOs would be affected under
Scenario 1 (a total of about 16,400
operations) as compared to Scenario 4b
(about 39,300 operations affected). As
noted in Section X.E, EPA's estimate of
the number of CAFOs and
corresponding compliance costs does
not adjust for operations with mixed
animal types and may be overstated. By
technology option, with the exception of
Options 1 and 4, costs are evaluated
incremental to Option 2 (see Table 10-
2). Compared to Option 2, Option 5
costs are greatest. Additional breakout
of these costs by sector are provided in
the Economic Analysis.
TABLE 10-5.—ANNUALIZED PRE-TAX COSTS FOR THE ALTERNATIVE NPDES SCENARIOS ($1999, MILLION)
Option/Scenario
Ontinn 9 ••»• *
BAT Option
Scenario 4a
"Two-Tier".
25,540
$432.1
$548.8
'$746.7
$903.9
$1,515.9
$621.6
$671 .3
$830.7
Scenaro 2/3
"Three-Tier"
28,860
$462.8
$582.8
$854.1
$1,088.2
$1,632.9
$736.9
$781.9
$925.1
Scenario 1
16,420
$354.6
$444.4
$587.0
$707.0
$1,340.9
$501.5
$542.4
$680.3
Scenario 5
>750 AU
25,770
$384.3
$484.0
$649.5
$768.0
$1,390.4
$541.3
$585.1
$720.8
Scenario 4b
>300 AU
39,320
$493.6
$633.3
$883.6
$1,121.2
$1,671.3
$706.6
$756.6
$979.6
Source: USEPA. See Economic Analysis. Cost estimates shown include costs to designated OR!^'0"3; 1 '
^Ta^^ « CAFOS °niy and
3. Costs to Offsite Recipients of CAFO
Manure Under the Proposed Regulations
As described in Section VII, EPA is
proposing that offsite recipients of
CAFO manure certify to the CAFO that
manure will be land applied in
accordance with proper agriculture
practices. As shown in Table 10-3, EPA
estimates that 18,000 non-CAFO
farming operations will receive manure
and therefore be required to certify
proper manure utilization under the
proposed two-tier structure. Under the
alternative three-tier structure, up to
3,000 additional farming operations may
be affected. EPA's analysis assumes that
affected CAFO manure recipients are
mostly field crop producers who use
CAFO manure as a fertilizer substitute.
EPA's analysis does not reflect manure
hauled offsite for alternative uses such
as incineration or pelletizing. EPA
estimates the annualized cost of this
requirement to offsite recipients to be
$9.6 to $11.3 million across the co-
proposed alternatives (Tables 10-3 and
10-4). This analysis is provided in the
Development Document.
Estimated costs to recipients of CAFO
manure include incremental
recordkeeping and soil tests every 3
years. Conservation Technology
Information Center (CTIC) Core 4 survey
data suggest an average of 46 percent
crop farmers regularly sample their soil.
EPA believes crop farmers already
maintain records pertaining to crop
yields, nutrient requirements, and
fertilizer applications. EPA also
assumed that crop farmers have a
nutrient management plan, though the
plan is not necessarily a PNP (Permit
Nutrient Plan) or CNMP
(Comprehensive Nutrient Management
Plan). EPA has evaluated alternative
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Federal Register/Vol.. 66, No. 9/Friday, January 12, 2001 / Proposed Rules
approaches to ensuring that manure is
handled properly, but is not proposing
to establish specific requirements for
offsite recipients. The costs to offsite
recipients do not include the costs of
spreading manure at the offsite location
or any additional payments made to
brokers or manure recipients in counties
with excess manure. These costs are
likely to be offset by the fertilizer
savings and organic value associated
with manure. EPA's analysis accounts
for the costs incurred by the CAFO for
offsite transfer of excess manure in the
estimated industry compliance costs,
described in Section X.E.1. These costs
include the cost of soil and manure
sampling at the CAFO site, training for
manure applicators, application
equipment calibration, and the hauling
cost of excess manure generated by the
CAFO.
Under the proposed regulations,
CAFOs would be required to apply
manure on a phosphorus basis where
necessary, based on soil conditions, and
on a nitrogen basis elsewhere. EPA
anticipates that offsite recipients of
CAFO manure will only accept manure
when soil conditions allow for
application on a nitrogen basis. EPA
believes this is a reasonable assumption
because crop farms are less likely to
have a phosphorus buildup associated
with long term application of manure.
EPA's analysis assumes a nitrogen-based
application rate for offsite locations that
is identical to the rate used by CAFOs
in the same geographic region. A
summary of the data and methodology
used by EPA to calculate the number of
affected offsite recipients and to
estimate costs is presented in Section
X.C.2(b). EPA solicits comment on the
costs and assumptions pertaining to
offsite recipients.
F. Estimated Economic Impacts of the
Proposed Regulatory Options/Scenarios
This section provides an overview, of
EPA's estimated economic impacts
across four industry segments that are
included for this analysis: CAFOs (both
existing and new sources), non-CAFO
recipients of manure, processors, and
consumer markets. More detailed
information on each of these analyses is
available in the Economic Analysis.
1. CAFO Level Analysis
This section presents EPA's analysis
of financial impacts to both existing and
new CAFOs that will be affected by the
proposed regulations, as well as impacts
to offsite recipients of CAFO manure
xvho will also be required to comply
with the proposed PNP requirements.
a. Economic Impacts to Existing
CAFOs under the Proposed Regulations.
As discussed in Section X.C.I, EPA's
CAFO level analysis examines
compliance cost impacts for a
representative "model CAFO." EPA
evaluates the economic achievability of
the proposed regulatory options at
existing animal feeding operations
based on changes in representative
financial conditions across three
criteria. These criteria are: a comparison
of incremental costs to total revenue
(sales test), projected post-compliance
cash flow over a 10-year period, and an
assessment of an operation's debt-to-
asset ratio under a post-compliance
scenario. To evaluate economic impacts
to CAFOs in some sectors, impacts are
evaluated two ways'assuming that a
portion of the costs may be passed on
from the CAFO to the consumer and
assuming that no costs passthrough so
that all costs are absorbed by the CAFO.
EPA used the financial criteria to
divide the impacts of the proposed
regulations into three impact categories.
The first category is the affordable
category, which means that the
regulations have little or no financial
impact on CAFO operations. The second
category is the moderate impact
category, which means that the
regulations will have some financial
impact on operations at the affected
CAFOs, but EPA does not consider these
operations to be vulnerable to closure as
a result of compliance. The third
category is the financial stress category,
which means that EPA considers these
operations to be vulnerable to closure
post-compliance. More information on
these criteria is provided in Section 4 of
the Economic Analysis.
The basis for EPA's economic
achievability criteria for this rulemaking
is as follows. USDA's financial
classification of U.S. farms identifies an
operation with negative income and a
debt-asset ratio in excess of 40 percent
as "vulnerable." An operation with
positive income and a debt-asset ratio of
less than 40 percent is considered
"favorable." EPA adopted this
classification scheme as part of its
economic achievability criteria, using
net cash flow to represent income. This
threshold and cash flow criterion is
established by USDA and other land
grant universities, as further described
in Section 4 of the Economic Analysis.
The threshold values used for the cost-
to-sales test (3 percent, 5 percent and 10
percent) are those determined by EPA to
be appropriate for this rulemaking and
are consistent with threshold levels
used by EPA to measure impacts of
regulations for other point source
dischargers (as also documented in the
Economic Analysis).
For this analysis, EPA's determination
of economic achievability used all three
criteria. EPA considered the proposed
regulations to be economically
achievable for a representative model
CAFO if the average operation has a
post-compliance sales test estimate
within an acceptable range, positive
post-compliance cash flow over a 10-
year period, and a post-compliance
debt-to-asset ratio not exceeding 40
percent. If the sales test shows that
compliance costs are less than 3 percent
of sales, or if post-compliance cash flow
is positive and the post-compliance
debt-to-asset ratio does not exceed 40
percent and compliance costs are less
than 5 percent of sales, EPA considers
the options to be "Affordable" for the
representative CAFO group. A sales test
of greater than 5 percent but less than
10 percent of sales with positive cash
flow and a debt-to-asset ratio of less
than 40 percent is considered indicative
of some impact at the CAFO level, but
at levels not as severe as those
indicative of financial distress or
vulnerability to closure. These impacts
are labeled "Moderate" for the
representative CAFO group. EPA
considers both the "Affordable" and
"Moderate" impact categories to be
economically achievable by the CAFO.
If (with a sales test of greater than 3
percent) post-compliance cash flow is
negative or the post-compliance debt-to-
asset ratio exceeds 40 percent, or if the
sales test shows costs equal to or
exceeding 10 percent of sales, the
proposed regulations are estimated to be
associated with potential financial stress
for the entire representative CAFO
group. In such cases, each of the
operations represented by that group
may be vulnerable to closure. These
impacts are labeled as "Stress." EPA
considers the "Stress" impact category
to indicate that the proposed
requirements may not be economically
achievable by the CAFO, subject to
other considerations.
Tables 10-6 and 10-7 present th.e
estimated CAFO level impacts in terms
of the number of operations that fall
within the affordable, moderate, or
stress impact categories for each of the .
co-proposed alternatives by sector and
facility size group. For some sectors,
impacts are shown for both the zero and
the partial cost passthrough
assumptions (discussed more fully
below). Partial cost passthrough values
vary by sector, as described in Section
X.D.I.
EPA's costs model analyzes impacts
under two sets of conditions for ELG •
Option 3. Option 3A assumes that there
is a hydrologic connection from
groundwater to surface waters at the
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3089
CAFO; Option 3 assumes average costs
conditions across all operations—both
operations with, and without a
hydrplogic link. Based on available data
and information, EPA's analysis
assumes 24 percent of the affected
operations have a hydrologic connection
to surface waters. More detail on this
assumption may be found in the
rulemaking record. EPA solicits
comment on this assumption as part of
today's proposed rulemaking.
Based/on results shown in Tables 10-
6 and 10-^-7, EPA proposes that the
regulatory alternatives are economically
achievable for all representative model
CAFOs in the veal, turkey and egg
laying sectors. The proposed
requirements under the two-tier
structure are also expected to be
economically achievable by all affected
heifer operations. Furthermore,
although operations across most sectors
may experience moderate impacts, EPA
does not expect moderate financial
impacts to result in closure and
considers this level of impact to be
economically achievable.
In the beet cattle, heifer, dairy, hog
and broiler sectors, however, EPA's
analysis indicates that the proposed
regulations will cause some operations
to experience financial stress, assuming
no cost passthrough. These operations
may be vulnerable to closure by
complying with the proposed
regulations. Across all sectors, an
estimated 1,890 operations would
experience financial stress under the
two-tier structure and an estimated
2,410 operations would experience
stress under the three-tier structure. For
both tier structures, EPA estimates that
the percentage of operations that would
experience impacts under the stress
category represent 7 percent of all
affected CAFOs or 8 percent of all
affected operations in the sectors where
impacts are estimated to cause financial
stress (cattle, dairy, hog, and broiler
sectors).
Tables 10-76 shows results for the two-
tier structure at the 500 AU threshold.
By sector, EPA estimates that 1,420 hog
operations (17 percent of affected hog
CAFOs), 320 dairies (9 percent of
operations), 150 broiler operations (2
percent), and 10 beef operations (less
than 1 percent) would experience
financial stress. The broiler and hog
operations with these impacts have
1 more than 1,000 AU oh-site (i.e., no
operations with between 500 and 1,000
AU fall in the stress category). The dairy
and cattle operations with -stress
impacts are those that have a ground
water link to surface water. Although
not presented here, the results of the ,
two-tier structure at the 750 AU
threshold are very similar in terms of
number of operations affected. The
results of this analysis are presented in
the Economic Analysis.
Table 10-7 presents results for the
three-tier structure, and show that 1,420
hog operations (17 percent of affected
hog CAFOs under that alternative), 610
dairies (9 percent of operations), 330
broiler operations (2 percent), and 50
beef and heifer operations (1 percent) . ,
will be adversely impacted. Hog
operations with stress impacts all have
more than 1,000 AU. Affected broiler
facilities include operations with more
than 1,000 AU, as well as operations
with less than 1,000 AU. Dairy and
cattle operations in the stress category
are operations that have a hydrologic
link from ground water to surface water.
Based on these results, EPA is proposing
' that the proposed regulations are
economically achievable.
In the hog and broiler sectors, EPA
also evaluated financial impacts with an
assumption of cost passthrough. For the
purpose of this analysis, EPA assumes
that the hog sector could passthrough 46
percent of compliance costs and the
•broiler sector could passthrough 35
percent of compliance costs. EPA
derived these estimates from price
elasticities of supply and demand for
each sector reported in the academic'
literature. More detailed information is
provided in Section 4 and Appendix C
of the Economic Analysis. Assuming
these levels of cost passthrough in these
sectors, the magnitude of the estimated
impacts decreases to the affordable or
moderate impact category. Even in light
of the uncertainty of cost passthrough
(both in terms of whether the operations
are able to pass cost increases up the
marketing chain and the amount of any
cost passthrough), EPA proposes that
the proposed regulations will be
economically achievable to all hog and
broiler operations.
Although EPA's analysis does not
consider cost passthrough among cattle
or dairy operations, EPA does expect
that long-run market and structural
adjustment .by producers in this sector
will diminish the estimated impacts.
However, EPA did determine that an
evaluation of economic impacts to dairy
producers would require that EPA ,,
assume cost passthrough levels in
excess of 50 percent before operations in
the financial stress category would,
instead, fall into the affordable or
moderate impact category. EPA did not
conduct a similar evaluation of
estimated impacts to beef cattle and
heifer operations.
EPA believes that the assumptions of
cost passthrough are appropriate for the
pork and poultry sectors. As discussed
in Section VI, EPA expects that meat
packing plants and slaughtering
facilities in the pork and poultry
industries may be affected by the
proposed co-permitting requirements in
today's proposed regulations. Given the
efficiency of integration and closer
producer-processor linkages, the
processor has an incentive to ensure a
continued production by contract
growers, EPA expects that these
operations will be able to pass on a
portion of all incurred compliance costs
and will, thus, more easily absorb the
costs associated with today's proposed
rule. This passthrough may be achieved
either through higher contract prices or
through processor-subsidized
centralized off-site or on-site waste
treatment and/or development of
marketable uses for manure.
EPA recognizes, however, that some
industry representatives do not support
assumptions of cost passthrough from
contract producers to integrators, as also
noted by many small entity
representatives during the SBREFA
outreach process as well as by members
of the SBAR Panel. These commenters
have noted that integrators have a
contracts, which may ultimately allow
them to force producers to incur all
compliance costs as well as allow them
to pass any additional'costs down to
growers that may be incurred by the
processing firm. To examine this issue,
EPA conducted an extensive review of
the agricultural literature on market
power in each of the livestock and
poultry sectors and concluded that there
is little evidence to suggest that
increased production costs would be
prevented from being passed on through
the market levels. This information is
provided in the rulemaking record.
Given the uncertainty of whether costs
will be passed on, EPA's results are
presented assuming some degree of cost
passthrough and also no cost
passthrough (i.e., the highest level of
impacts projected). EPA requests
comment on its cost passthrough
assumptions. Although EPA does
consider the results of both of these
analyses in making its determination of
economic achievability, EPA's overall
conclusions do not rely on assumptions
of cost passthrough.
Finally, EPA believes its estimated
impacts may be overstated since the
analysis does not quantify various cost
offsets that are available to most
operations. One source of potential cost
offset is cost share and technical
assistance available to operators for on-
site improvements that are available
from various state and federal programs,
such as the Environmental Quality
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001/Proposed Rules
Incentives Program (EQIP) administered
by USDA. Another source of cost offset
is revenue from manure sales,
particularly of relatively higher value
dry poultry litter. EPA's analysis does
not account for these possible sources of
cost offsets because the amount of cost
offset is likely variable among facilities,
depending on certain site-specific
conditions. If EPA were to quantify the
potential cost offsets as part of its
analysis, this would further support
EPA's proposed determination that the
proposed requirements are
economically achievable to affected
operations. This analysis and additional
supporting documentation is provided
in Section 6 of the Economic Analysis.
Appendix D of the Economic Analysis
provides results of sensitivity analyses,
conducted by EPA, to examine the
impact under differing model
assumptions. This analysis examines
the change in the modeling results from
varying the baseline assumptions on
gross and net cash income, debt-to-asset
ratios as well as other variability factors
for model CAFOs. These sensitivity
analyses conclude that 'the results
presented here are stable across a range
of possible modeling assumptions. EPA
also conducted sensitivity analysis of
the compliance costs developed for the
purpose of estimating GAFO level
impacts, as documented in the
Development Document.
TABLE 10-6.—IMPACTED OPERATIONS UNDER THE TWO-TIER STRUCTURE (BAT OPTION/SCENARIO 4A)
Sector
Fed Cattle
Veal
Heifer
Dairy
Hogs: GF1
Hogs: FF1
Broilers4
Layers — Wet2
Layers — Dry2
Turkeys
Total3
Number of
CAFOs
3,080
90
800
3,760
2,690
5,860
9,780
360
1,280
1,280
28,970
(Number of affected operations)
Zero cost passthrough
Affordable
2,830
90
680
3,240
1,710
5,210
1,960
360
1,280
1,230
18,580
Moderate
240
. 0
120
200
180
30
7,670
0
0
50
8,490
Stress
10
0.
0
320
810
610
150
0
0
0
1,890
Partial cost passthrough
Affordable
ND
ND
ND
ND
2,690
5,860
8,610
ND
ND
ND
26,840
Moderate
ND
ND
ND
ND
0
0
1,170
ND
ND
ND
1,800
. Stress
ND
ND
ND
ND
0
0
0
ND
ND
ND
330
Source: USEPA. See Economic Analysis. Impact estimates shown include impacts to designated operations.
Numbers may not add due to rounding. ND=Not Determined. Option/Scenario definitions provided in Table 10-2
Category definitions ("Affordable," "Moderate" and "Stress") are provided in Section X.F.1.
i "Hogs: FF' are farrow-finish (includes breeder and nursery pigs); "Hogs: GF" are grower-finish only.
flayers: wet" are operations with liquid manure systems; ''Layers: dry' are operations with dry systems.
3 Total does not adjust for operations with mixed animal types, for comparison purposes, to avoid understating costs at operations with more
than one animal type that may incur costs to comply with the proposed requirements for each type of animal that is raised on-site.
TABLE 10-7.—IMPACTED OPERATIONS UNDER THE THREE-TIER STRUCTURE (BAT OPTION/SCENARIO 3)
Sector
Fed Cattle
Veal
Heifer
Dairy
Hogs: GF2
Hogs: FF1
Broilers
Layers — Wet2
Layers — Dry2
Turkeys
Total3
Number of
CAFOs
3,210
140
980
6,480
2,650
5,710
13,740
360
1,660
2,060
37,000
(Number of affected operations)
Zero cost passthrough
Affordable
2,540
140
800
5,300
1,660
5,070
1,850
360
1,660
1,950
21,300
" Moderate
650
0
150
560
190
30
11,560
0
0
110
, '13,250
Stress
20
0
30
610
810
610
330
0
0
0
2,410
Partial cost passthrough
Affordable
ND
ND
ND
ND
2,650
5,710
12,320
ND
ND
ND
33,410
Moderate
ND
ND
ND
, ND
0
0
1,440
ND
ND
ND
2,930
Stress
ND
ND
ND
ND
0
0
0
ND
ND
ND
660
Source: USEPA. See Economic Analysis. Impact estimates shown include impacts to designated operations
Numbers may not add due to rounding. ND=Not Determined. Option/Scenario definitions provided in Table 10-2
Category definitions ("Affordable," "Moderate" and "Stress") are provided in Section X.F.1.
1 "Hogs: FF" are farrow-finish (includes breeder and nursery pigs); "Hogs: GF" are grower-finish only.
2 "Layers: wet" are operations with liquid manure systems; "Layers: dry* are operations with dry systems.
3'Total" does not adjust for operations with mixed animal types, for comparison purposes, to avoid understating costs at operations with more
than one animal type that may incur costs to comply with the proposed requirements for each type of animal that is raised oh-site
b. Economic Impacts to Existing
CAFOs under Alternative Regulatory
Options and Scenarios. Table 10-8
presents estimated financial stress
impacts to model CAFOs under
alternative option and scenario
combinations, assuming that no costs
passthrough. The results shown are
aggregated and combine impacts in the
cattle sector (including all beef, veal and
heifer operations), hog sector (including
all phases of production), and poultry
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3091
sector (including all broiler, egg laying
and turkey operations). Results are
shown for Scenario 4a (two-tier),
'Scenario 3 (three-tier), and Scenario 4h.
Results are shown for technology
Options 1 through 5. Additional
information is available in the Economic
Analysis that supports today's
rulemaking.
As shown in Table 10-8, the number
of potential closures range from 610
operations (Option 1 in combination
with all Scenarios) to more than 14,000
potential closures (Option 4/Scenario
4b). Among options, the number of
possible closures are highest under the
more stringent options, including
Options 3A (i.e., requires groundwater
controls at operations where there is a
determined groundwater hydrologic
connection to surface waters), Option 4
(groundwater controls and surface water
sampling), and Option 5 (i.e., zero
discharge from the animal production
area with no exception for storm
events). Differences across scenarios
reflects differences in the number of
affected operations; accordingly, the
number of closures is greatest under
Scenario 4b that would define as CAFOs
all confinement operations with more
than 300 AU.
TABLE 10-8.—"STRESS" IMPACTS AT CAFOs UNDER ALTERNATIVE OPTIONS/SCENARIOS
Sector
Number of
CAFOs
(Number of operations)
Option 1
Option 2
Option 3
Option
.-3A1
Option 4
Option 5
BAT option
BAT Option/NPDES Scenario 4a (>500 AU)
Cattle .'.-..
Dairy .
Poultry
Total2
3,960
3,760
8,550
12,700
28,970
0
0
610
0
610
0
0
300
150
450
0
0
230
260
490
10
320
310
. 100
. 730
.0
0
570
6,660
7,230
30
0
1,420
150
1,590
10
320
1 ,420
150
1,890
BAT Option/NPDES Scenario 4b (>300 AU)
Cattle ..........
Hogs
Poultry
Total2
5,330
7,140
14,370
18,300
45,140
0
0
610
0
610
0
0
300
320
620
0
0
230
470
700
90
700
330
380
1,500
30
6
570
11,030
11,630
180
0
1,420
320
1,910
90
700
1,420
320
2,530
BAT Option/NPDES Scenario 3 (>300 AU with certification)
Cattle •*•»••
Poultry
Total2 :
4,330
6,480
'8,360
17,830
37,000
0
0
610
0
610
0
0
300
330
630
0
0
230
470
700
50
610
320
370
1,350
0
0
570
10,740
11,310
100
0
1,420
330
1,850
50
610
1,420
330
2,410
'Source- USEPA. See Economic Analysis. Impact estimates shown include impacts to designated operations.
Numbers may not add due to rounding. ND = Not Determined. Option/Scenario definitions provided in Table 10-2. '****-,
10ption 3A impacts reflect operations where there is a determined groundwater hydrologic connection to surface waters (assumed at 24 per-
Ce""To4h|" doefnotTdlusffor operations with mixed animal types, for comparison purposes, to avoid understating costs at operations with more
than one animal type that may incur costs to comply with the proposed resuirements for each type of animal that is raised on-site. The number
of CAFOs shown includes expected defined CAFOs only and excludes designated facilities.
c. Economic Analysis of New CAFOs
from NSPS under the Proposed
Regulations. For new sources, EPA is
proposing that operations meet
performance standards, as specified by
the BAT requirements (Option 3 NSPS,
beef and dairy subcategories, and
Option 5 NSPS, swine and poultry
subcategories), with the additional
requirement that all new hog and
poultry operations also implement
groundwater controls where there is a
hydrologic link to surface water (Option
3 NSPS, swine and poultry
subcategories). Additional information
on new source requirements is provided
in Section VIII of this document.
In general, EPA believes that new
CAFOs will be able to comply at costs
that are similar to, or less than, the costs
..for existing sources, because new
sources can apply control technologies
more efficiently than sources that need
to retrofit for those technologies. New
sources will be able to avoid these costs
that will be incurred by existing
sources. Furthermore, EPA believes that
new sources can avoid the costs
associated with ground water protection
through careful site selection. There is
nothing about today's proposal that
would give existing operators a cost
advantage over new feedlot operators;
therefore, new source standards are not
expected to present a barrier to entry for
new facilities.
EPA's analysis of the NSPS costs
indicate that requiring Option 3 for new
sources in the beef and dairy
subcategories and both Option 3 NSPS
and Option 5 NSPS for the swine and
poultry subcategories ("Option 5+3
NSPS") would be affordable and would
not create any barriers to entry into
those sectors. The basis for this .
determination is as follows. Option 5+3
NSPS is considered equivalent to
Option 5 for new sources in terms of
cost. EPA is proposing that Option 3
NSPS for beef and dairy subcategories
and Option 5 NSPS for swine and
poultry subcategories is economically
achievable for existing sources. Since
the estimated costs for these options are
the same as or less expensive than costs
for these same options for existing
sources, no barriers to entry are created.
Under Option 5+3 NSPS, costs for
new sources in the swine and poultry
subcategories would be the same as or
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001/Proposed Rules
less than those for equivalent existing
sources (BAT under Option 5), as long
as new sources are not sited in areas
where there is a hydrologic link to
surface water. New operations are not .
expected to incur costs estimated under
Option 3A, which includes groundwater
controls, since they are not likely to
establish a new operation where there is
a hydrologic link to surface waters (and
where operating expenses would be
more costly). Thus EPA assumes that
the costs for Option 5+3 NSPS are the
same as those for Option 5 NSPS, which
in turn are the same as those for Option
5 BAT. EPA is proposing that Option 5
BAT is economically achievable for
existing sources in the swine and
poultry subcategories and therefore this
same option should be affordable to new
sources. Furthermore, because costs to
new sources for meeting Option 5 NSPS
are no more expensive than the costs for
existing sources to meet Option 5 BAT,
there should be no barriers to entry.
The estimated costs of Option 3 NSPS
for the beef and dairy subcategories are
the same as or less than the costs for
Option 3 BAT, which includes
retrofitting costs. EPA is proposing that
Option 3 BAT is economically
achievable for existing sources in these
sectors. Since Option 3 NSPS is no more
expensive than Option 3 BAT, this
option should also be economically
achievable for new sources and should
not create any barriers to entry. In fact,
new sources may be able to avoid the
cost of implementing groundwater
controls through careful site selection,
thus their costs may be substantially
lower than similar existing sources.
EPA did not consider an option
similar to Option 5+3 NSPS for the beef
and dairy subcategories (Option 8
NSPS), but found this option to be
substantially more expensive than
Option 3 BAT for the dairy sector and
could create barriers to entry for this
sector. Therefore, EPA rejected this
option. See Section 5 of the Economic
Analysis for more details on these
analyses.
d. Economic Impacts to Offsite
Recipients of CAFO Manure of the
Proposed Regulations. As discussed in
Section X.D. 1, EPA assesses the
economic impact to offsite recipients of
CAFO manure by comparing the
estimated cost of this requirement to
both aggregate and average per-farm
production costs and revenues. For the
purpose of this analysis, EPA assumes
that these regulatory costs will be borne
by a non-CAFO farming operation that
uses animal manures as a fertilizer
substitute.
EPA estimates that 17,900 to 21,200
farming operations will incur $9.6
million to $11.3 million in costs
associated with requirements for the
offsite transfer of CAFO manure (Tables
10-3 and Table 10-4). This translates to
an average cost of roughly $540 per
recipient. As reported by USDA, farm
production expenses in 1997 totaled
$150.6 billion nationwide. Revenue
from farm sales totaled $196.9 billion.
Averaged across the total number of
farms, average per-farm costs and
revenues were $78,800 and $113,000 in
1997, respectively. Using these data, the
ratio of incremental costs to offsite
recipients as a share of average
operating expenses and average farm
revenue is well under one percent. Total
estimated compliance costs ($9.6
million to $11.3 million annually) as a
share of aggregate farm expenses and
sales is also under one percent. This
analysis is provided in Section 5 of the
Economic Analysis.
2. Processor Level Analysis
As discussed in Section X.D.2, EPA
did not conduct a detailed estimate of
the costs and impacts that would accrue
to individual co-permittees due to lack
of data and market information.
However, EPA believes that the
framework used to estimate costs to
CAFO provides a means to evaluate the
possible upper bound of costs that could
accrue to potential co-permittees, based
on the potential share of (pre-tax) costs
that may be passed on from the CAFO
(described in Section X.D.2). EPA is
proposing that this amount
approximates the magnitude of the costs
that may be incurred by processing
firms in those industries that may be
affected by the proposed co-permitting
requirements.
Table 10-9 presents the results of
EPA's analysis. This analysis focuses on
the potential magnitude of costs to co-^
permittees in the pork and poultry
sectors only since these are the sectors
where the proposed co-permitting
requirements could affect processing
facilities. However, EPA did not
evaluate the potential magnitude of
costs to egg and turkey processors
because the compliance costs to CAFOs
in these industries is projected to be
easily absorbed by CAFOs (see Section
X.F.I). The results presented in Table
10-9 are for the pork and broiler
industries only. EPA also did not
evaluate the potential costs to cattle and
dairy processors because EPA does not
expect that the proposed co-permitting
requirements to affect meat packing and
processing facilities in these industries,
for reasons 'outlined in Section VI.
The potential magnitude of costs to
co-permittees is derived from the
amount of cost passthrough assumed in
the CAFO level analysis, described in
Section X.F.I. For this analysis, two
scenarios of cost passthrough to
processors are evaluated: partial cost
passthrough (greater than zero) and also
100 percent cost passthrough. EPA's
partial cost passthrough scenario
assumes that 46 percent of all hog
compliance costs and that 35 percent of
all broiler compliance costs are passed
on to the food processing sectors. Based
on the results of this analysis, EPA
estimates that the range of potential
annual costs to hog processors is $135
million (partial cost passthrough) to
$306 million (full cost passthrough).
EPA estimates that the range of potential
annual costs to broiler processors as $34
million (partial cost passthrough) to
$117 million (full cost passthrough).
These results are shown in Table lD-^9
and are expressed in 1999 pre-tax
dollars.
To assess the magnitude of impacts
that could accrue to processors using
this approach, EPA compares the passed
through compliance costs to both
aggregate processor costs of production
and to revenues (a sales test). The
results of this analysis are shown in
Table 10—9 and are presented in terms
of the equivalent 1997 compliance cost
as compared to 1997 data from the
Department of Commerce on the
revenue and costs among processors in
the hog and broiler industries. As
shown, EPA estimates that, even under
full cost passthrough, incremental cost
changes are less than two percent and
passed through compliance costs as a
share of revenue are estimated at less
than one percent. EPA solicits comment
on this approach. Additional
information is provided m the
Economic Analysis.
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3093
TABLE
10-9—IMPACT OF PASSED THROUGH COMPLIANCE COSTS UNDER CO-PROPOSED ALTERNATIVES
Sector
Passed through
compliance cost
Partial CPT
($1999,
100% CPT
million)
1997
revenues
1997
delivered
cost
($1997, million)
1997 Passed through cost-
to-revenues
Partial CPT
100% CPT
Passed through cost-to-
delivered cost
Partial CPT
100% CPT
(percent, comparing costs in $1997)
Hog Processors
Three-Tier
135
141
294
306
38,500
15,700
0.3%
0.4%
0.7%
0.8%
0.8%
1.8%
1.9%
Broiler Meat Processors
Three-Tier .":.
34
41
ocessor reven
97
117
17,700
9,100
0.2%
0.2%
0.5%
0.6%
0.4%
0.4%
1.0%
1.2%
s.!&cit=rpSr^^^^^
broiler sector.
3. Market Level Analysis
As discussed in Section X.D.3, EPA's
market analysis evaluates the effects of
the proposed regulations on commodity
prices and quantities at the national
level. EPA's market model predicts that
the proposed regulations will not result
in significant industry-level changes in
production and prices for most sectors.
Tables 10-10 and 10-11 show predicted
farm and retail price changes across the
two-tier (500 AU threshold) and three-
tier structures. For comparison
purposes, the average annual percentage
change in price from 1990 to 1998 is
. shown. Analyses of other technology
options and scenarios considered by
EPA are provided in the record.
EPA expects that predicted changes in
animal production may raise producer
prices, as the market adjusts to the
proposed regulatory requirements. For
most sectors, EPA estimates that
producer price changes will rise by less
than one percent of the pre-regulation
baseline price^Table 10-10). The
exception is in the hog sector, where
estimated compliance costs slightly
exceed one percent of the baseline price.
At the.retail level, EPA expects that the
proposed regulations will not have a
substantial impact on overall
production or consumer prices for
value-added meat, eggs, and fluid milk
and dairy products. EPA estimates that
retail price increases resulting from the
proposed regulations will be under one
percent of baseline prices in all sectors,
averaging below the rate of general price
inflation for all foods (Table 10-11). In
terms of retail level price changes, EPA
estimates that poultry and red meat
prices will rise about one cent per
pound. EPA also estimates that egg
prices will rise by about one cent per
dozen and that milk prices will rise by
about one cent per gallon.
Appendix D of the Economic Analysis
provides results of sensitivity analyses,
conducted by EPA, to examine the
impact under differing model
assumptions. EPA examined variations
in the price elasticities and prices
assumed for these industries, based on
information reported in the agricultural
literature and statistical compendiums.
These sensitivity analyses demonstrate
that the results presented here are stable
across a range of possible modeling
assumptions.
TABLE 10-10.—ESTIMATED INCREASES IN FARM PRICES UNDER THE CO-PROPOSED ALTERNATIVES
Option/Scenario
Three-Tier
Beef
($/cwt)
$68.65
4.6%
. 0.22
0.24
Dairy
($/cwt)
$13.90
8.0%
0.06
0.08
Hogs
($/cwt)
$56.41
15.2%
0.61
0.66
Broilers
(cents/lb)
38.43
5.7%
0.19
0.23
Layers
(cents/doz.)
72.51
1 1 .5%
0.14
.15
Turkeys
(cents/ib)
41.66
01ft
Source: USEPA, except historical data that are from USDA. Option/Scenario definitions provided in Table 10-2
TABLE 10-11.—ESTIMATED INCREASES IN RETAIL PRICES UNDER THE CO-PROPOSED ALTERNATIVES
Option/Scenario
Awn Phn Qft— QR f%^
Three-Tier
Beef
.($/lb)
$2.91
2.3%
0.00
0.00
Dairy
(Index)
145.50
2;4%
0.61
0.78
Hogs
($/lb)
$2.55
5.1%
0.01
0.01
Broilers
(cents/lb)
156.86
3.0%
0.19
0.23
Layers
(cents/doz.)
110.11
7.2%
0.14
0.15
Turkeys
(cents/lb)
.109.18
0-\C
EPA does not expect that the
proposed regulations will result in
significant changes in aggregate
employment or national economic
output, measured in terms of Gross
Domestic Product (GDP). EPA expects,
however, that there will be losses in
employment and economic output
associated with decreases in animal
production due to rising compliance
costs. These losses are estimated
throughout the entire economy, using
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001/Proposed Rules
available modeling approaches, and are
not attributable to the regulated
community only. This analysis also
does not adjust for offsetting increases
in other parts of the economy and other
sector employment that may be
stimulated as a result of the proposed
regulations, such as the construction
and farm services sectors.
Table 10-12 show these predicted
changes. Employment losses are
measured in full-time equivalents
(FTEs) per year, including both direct
and indirect employment. Under the
two-tier structure (500 AU threshold),
EPA estimates that the reduction in
aggregate national level of employment
is 16,600 FTEs. Under the three-tier
structure, EPA estimates total aggregate
job losses at 18,900 FTEs. This projected
change is modest when compared to
total national employment, estimated at
about 129.6 million jobs sin 1997. EPA's
estimate of the aggregate reductions in
national economic output is $1.7 billion
under the two-tier structure. Under the
three-tier structure, EPA estimates the
loss to GDP at $1.9 billion. This
projected change is alsp modest when
compared to total GDP, estimated at
$8.3 trillion in 1997. Additional
information is available in the Economic
Analysis.
TABLE 10-12.—ESTIMATED DECREASES IN EMPLOYMENT AND ECONOMIC OUTPUT
Option/ Scenario
Two-Tier
Three-Tier
Beef
Dairy
Hogs
Poultry
Total
Estimated Decreases in Employment (Number of FTEs)
4,600
4,900
3,200
4,100
6,400
6,900
2,400
3,000
16,600
18,900
Estimated Decreases in Economic Output ($GDP)
Two-Tier
Three-Tier
Source: USEF
$476
$510
$307
$396
$681
$734
$251
.tans
$1,715
«1 QAR
»A. Option/Scenario definitions provided in Table 10-2. FTE = Full-time equivalent.
G. Additional Impacts
1. Costs to the NPDES Permitting
Authority
Additional costs will be incurred by
the NPDES permitting authority to alter
existing state programs and obtain EPA
approval to develop new permits,
review new permit applications and
issue revised permits that meet the
proposed regulatory requirements..
Under the proposed rule, NPDES
permitting authorities will incur
administration costs related to the
development, issuance, and tracking of
general or individualpermits.
State and federal administrative costs
to issue a general permit include costs
for permit development, public notice
and response to comments, and public
hearings. States and EPA may also incur
costs each time a facility operator
applies for coverage under a general
permit due to the expenses associated
with a Notice of Intent (NOI). These per-
facility administrative costs include
initial facility inspections and annual
record keeping expenses associated with
tracking NOIs. Administrative costs for
an individual permit include
application review by a permit writer,
public notice, and response to
comments. An initial facility inspection
may also be necessary. EPA developed
its unit permit costs assumed for this
analysis based on information obtained
from a state permitting personnel. The
cost assumptions used to estimate
develop, review, and approve permits
and inspect facilities are presented in
the Development Document.
EPA assumes that, under the two-tier
structure, an estimated 25,590 CAFOs
would be permitted. This estimate
consists of 24,760 State permits (17,340
General and 7,420 Individual permits)
and 1,030 Federal permits (720 General
and 310 Individual permits). Under the
three-tier structure, an estimated 31,930
CAFOs would be permitted, consisting
of 30,650 State permits (21,460 General
and 9,190 Individual permits) and 1,280
Federal permits (900 General and 380 '
Individual permits). Information on the
estimated number of permits required
under other regulatory alternatives is
provided in the Economic Analysis. The
basis for these estimates is described in
the Development Document that
supports this rulemaking.
As shown in Table 10-13, under the
two-tier structure, EPA estimates State
and Federal administrative costs to
TABLE 10-13.—ANNUAL STATE AND FEDERAL ADMINISTRATIVE COSTS, $1999
implement the permit program to be
$6.2 million per year: $5.9 million for
states and $350,000 for EPA. Under the
three-tier structure, EPA estimates State
and Federal administrative costs to
implement the permit program to be
$7.7 million per year: $7.3 million for
states and $416,000 for EPA. EPA
expects that the bulk (95 percent) of
estimated administrative costs will be
incurred by the state permitting
authority. EPA has expressed these costs
in 1999 dollars, annualized over the 5-
year permit life using a seven percent
discount rate. The range -of costs across
each of the regulatory options is $4.2
million to $9.1 million annually
(alternatives Scenario 1 and Scenario
4b, respectively). See Table 10-13. (EPA
did not estimate permit authority costs
under alternative NPDES Scenarios 5
and 6, described in Table 10-2.) This
.analysis is available in the record and is
summarized in Section 10 of the
Economic Analysis.
This analysis was conducted to
evaluate the costs of the proposed rule
to governments, as required under the
Unfunded Mandates Reform Act
(UMRA), as discussed in Section XIII.C
of this preamble.
Regulatory scenario
Scenario 1
Scenario 2
Scenario 3 ("Three-tier")
Scenario 4a ('Two-tier")
State
o,y^,yyo
/,
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3095
TABLE 10-13.—ANNUAL STATE AND FEDERAL ADMINISTRATIVE COSTS, $1999—Continued
Scenario 4b
Regulatory scenario
State
8,645,520
Federal
483,010
Total
9,128,530
, Source: USEPA. See Economic Analysis. Other supporting documentation is in the Development'Document.
2. Community Impacts ,
As discussed in Section X.F.3, EPA
does not expect that the proposed
regulations will result in significant •
increases in retail food prices or
reductions in national level
employment.
EPA also considered other community
level impacts associated with this
rulemaking. In particular, EPA
considered whether the proposed rule
could have community level and/or
regional impacts if it substantially
altered the competitive position of
livestock and poultry production across
the nation, or led to growth or
reductions in farm production (in- or
out-migration) in different regions and
communities. Ongoing structural and
technological change in these industries
has influenced where farmers operate
and has contributed to locational shifts
between the more traditional production
regions and the more emergent,
nontraditional regions. Production is
growing rapidly in these regions due to
competitive pressures from more
specialized producers who face lower
per-unit costs of production. This is
especially true in hog and dairy
production.
To evaluate the potential for
differential impacts among farm
production regions, EPA examined
employment impacts by region. EPA
concluded from this analysis that more
traditional agricultural regions would
not be disproportionately affected by the
proposed regulations. This analysis is
provided in the Economic Analysis.
EPA does not expect that today's
proposed requirements will have a
significant impact on where animals are
• raised. On one hand, on-site
improvements in waste management
and disposal, as required by the
proposed regulations, could accelerate
recent shifts in production to more
nontraditional regions as higher cost
producers in some,regions exit the
market to avoid relatively higher
retrofitting associated with bringing
existing facilities into compliance. On
• the other hand, the proposed regulations
may favor more traditional production
systems where operators grow both
livestock and crops, since these
operations tend to have available
cropland for land application of manure
nutrients. These types of operations
tend to be more diverse and not as
specialized and, generally, tend to be
smaller in size. Long-standing farm
services and input supply industries in
these areas could likewise benefit from
the proposed rule, given the need to
support on-site improvements in
manure management and disposal.
Local and regional governments, as well
as other non-agricultural enterprises,
would also benefit.
3. Foreign Trade Impacts
Foreign trade impacts are difficult to
predict, since agricultural exports are
determined by economic conditions in
foreign markets and changes in the
international exchange rate for the U.S.
dollar. However, EPA predicts that
foreign trade impacts as a result of the
proposed regulations will be minor
given the relatively small projected
changes in overall supply and demand
for these products and the slight
increase in market prices, as described
in Section X.F.3.
Despite its position as one of the
largest agricultural producers in the
world, historically the U.S. has not been
a major player in world markets for red
meat (beef and pork) or dairy products.
m fact, until recently, the U.S. was a net
importer of these products, The
presence of a large domestic market for
value-added meat and dairy products
has limited U.S. reliance, on developing
export markets for its products. As the
U.S. has taken steps to expand export
markets for red meat and dairy
products, one major obstacle has been
that it remains a relatively high cost
producer of these products compared to
other net exporters, such as New
Zealand, Australia, and Latin America,
as well as other more established and
government-subsidized exporting
countries, including the European
Union and Canada. Increasingly,
however, continued efficiency gains and
low-cost feed is making the U.S.more
competitive in world markets for these
products, particularly for red meat.
While today's proposed regulations may
raise production costs and potentially
reduce production quantities that would
otherwise be available for export, EPA
believes that any quantity and price
changes resulting from the. proposed
requirements will not significantly alter
the competitiveness of U.S. export
markets for red meat or dairy foods.
In contrast, U.S. poultry products
account for a controlling share of world
trade and exports account for a sizable
and growing share of annual U.S.
production. Given the established
presence of the U.S. in world poultry
markets and the relative strength in
export demand for these products, EPA
does not expect that the predicted
quantity and price changes resulting
from today's proposed regulations will
have a significant impact on the
competitiveness of U.S. poultry exports.
As part of its market analysis, EPA
evaluated the potential for changes in
traded volumes, such as increases in
imports and decreases in exports, and
concluded that volume trade will not be
significantly impacts by today's
proposed regulations! EPA estimates
that imports (exports) will increase
(decrease) by less than 1 percent
compared to baseline (pre-regulation)
levels in each of the commodity sectors.
By sector, the potential change in
imports compared to baseline trade
levels ranges from a 0.02 percent
increase in broiler imports to a 0.34-
percent increase in dairy product
imports. The predicted drop in U.S.
exports ranges from a 0.01 percent
reduction in turkey exports to a 0.25
percent reduction in hog exports.
H. Cost-Effectiveness Analysis
As part of the process of developing
effluent limitations guidelines and
standards, EPA typically conducts a
cost-effectiveness analysis to compare
the efficiencies of regulatory options for
removing pollutants and to compare the
proposed BAT option to other
regulatory alternatives that were
considered by EPA. For the purpose of
this regulatory analysis, EPA defines f
cost-effectiveness as the incremental'
annualized cost of a technology option
per incremental pound of pollutant
removed annually by that option. The
analyses presented in this section
include a standard cost-effectiveness
(C-E) analysis for toxic pollutants, but
also expand upon EPA's more
traditional approach to include an
analysis of the cost-effectiveness of
removing nutrients and sediments. This
expanded approach is more appropriate
for evaluating the broad range of
pollutants in animal manure and
wastewater.
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Federal Register/Vol. 66, No. 9/Friday, January 12, 2001/Proposed Rules
The American Society of Agricultural
Engineers (ASAE) reports that the
constituents present in livestock and
poultry manure include: boron,
cadmium, calcium, chlorine, copper,
iron, lead, magnesium, manganese,
molybdenum, nickel, potassium,
sodium, sulfur, zinc, nitrogen and
phosphorus species, total suspended
solids, and pathogens. Of these
pollutants, EPA's standard C-E analysis
is suitable to analyze only the removal
of metals and metallic compounds.
EPA's standard C-E analysis does not
adequately address removals of
nutrients, total suspended solids, and
pathogens. To account for the estimated
removals of nutrients and sediments
under the proposed regulations in the
analysis, the Agency has developed an
alternative approach to evaluate the
pollutant removal effectiveness relative
to cost. At this time, EPA has not
developed an approach that would
allow a similar assessment of pathogen
removals. Section 10 of the Economic
Analysis describes the methodology,
data, and results of this analysis. (EPA
did not estimate cost-effectiveness for
the alternative NPDES Scenarios 5 and
6, described in Table 10-2.)
For this analysis, EPA has estimated
the expected reduction of select
pollutants for each of the regulatory
options considered. These estimates
measure the amount of nutrients,
sediments, metals and metallic
compounds that originate from animal
production areas that would be removed
under a post-regulation scenario (as
compared to a baseline scenario) and
not reach U.S. waters. Additional
information on EPA's estimated '
loadings and removals under post-
compliance conditions is provided in
the Development Document and the
Benefits Analysis that support today's
rulemaking.
1. Cost-Effectiveness: Priority Pollutants
For this rulemaking, EPA identified a
subset of metallic compounds for use in
the C-E
For this rulemaking, EPA identified a
subset of metallic compounds for use in
the C-E analysis: zinc, copper cadmium,
nickel, arsenic, and lead. These six
compounds are a subset of all the toxic
compounds reported to be present in
farm animal manure (varies by animal
species). Therefore, if loading
reductions of all priority pollutants in
manure were evaluated, tie proposed
regulations would likely be even more
cost-effective (i.e., lower cost per
pound-equivalent removal).
: EPA calculates cost-effectiveness as
the incremental annual cost of a
pollution control option per incremental
pollutant removal. In C-E analyses, EPA
measures pollutant removals in toxicity
normalized units called "pounds-
equivalent," where the pounds-
equivalent removed for a particular
pollutant is determined by multiplying
the number of pounds of a pollutant
removed by each option by a toxicity
weighting factor. The toxic weighting
factors account for the differences in
toxicity among pollutants and are
derived using ambient water quality
criteria. The cost-effectiveness value,
therefore, represents the unit cost of
removing an additional pound-
equivalent of pollutants. EPA calculates
the cost-effectiveness of a regulatory
option as the ratio of pre-tax annualized
costs of an option to the annual pounds-
equivalent removed by that option,
expressed as the average or incremental
cost-effectiveness for that option. EPA
typically presents C-E results in 1981
dollars for comparison purposes with
other regulations. EPA uses these
estimated compliance costs to calculate
the cost-effectiveness of the proposed
regulations, which include total
estimated costs to CAFOs and offsite
recipients of CAFO manure (Section
X.E) and costs to the permitting
authority (Section X.G.I). Additional
detail on this approach is provided in
Appendix E of the Economic Analysis.
Cost-effectiveness results for select
regulatory alternatives are presented in
Table 10-14. Results shown in Table
10-14 include the BAT Option (Option
3 for beef and dairy subcategories and
Option 5 for the swine and poultry
subcategories) and Option 3+5 (both
Option S.and 5 for all subcategories).
Options are shown for four CAFO
coverage scenarios, including CAFOs
with more than 1,000 AU and CAFOs
With more than 500 AU (two-tier
structure), and operations with more
than 300 AU, both under Scenario 4b
and as defined under Scenario 3 (three-
tier structure). The differences in CAFO
coverage provide an upper and lower
bound of the analysis to roughly depict
the alternative NPDES scenarios. Both
incremental and average |