•£-03-001
Wednesday, j
Febraajy 12, 2003 !
Part H
Environmental
Protection Agency
40 CFR Parts 9, 122J 123, and 412
National Pollutant Discharge Elimination
System Permit Regulation and Effluent
limitation Guidelines and Standards for
Concentrated Animal Feeding Operations
(CAFOs); Final Rule i
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7176 Federal; Register /Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY |
40 CFR Parts 9,122J123 and 412
[FRL-7424-7] j
RIN2040-AD19 | ;
i |
National Pollutant Discharge
Elimination System Permit Regulation
and Effluent Limitation Guidelines and
Standards for Concentrated Animal
Feeding Operations' (CAFOs)
AGENCY: Environmental Protection '•
Agency. I j
ACTION: Final rale. ; j
SUMMARY: Today's final rule revises and
clarifies the Environmental Protection
Agency's (EPA) regulatory requirements
for concentrated animal feeding
operations (CAFOs) under the Clean
Water Act. This final rule will ensure
that CAFOs take appropriate actions to
manage, manure effectively in order to
protect the nation's water quality. '
Despite substantial improvements in
the nation's water qiiality since the
inception of the Clean Water Act, nearly
40 percent of the Nation's assessed
waters show impairments from a wide
range of sources. Improper management
of manure from CAFOs is among the
many contributors to remaining water
quality problems. Improperly managed
manure has caused s|erious acute and
chronic water quality problems !
throughout the United States. '
Today's action strengthens the j
existing regulatory program for CAFOs.
The rule revises two sections of the
Code of Federal Regulations (CFR), the
National Pollutant Discharge j
Elimination System (NPDES) permitting
requirements for CAFOs (Sec. 122)'and
the Effluent Limitations Guidelines and
Standards (ELGs) for CAFOs (Sec. 412).
The rule establishes a mandatory duty
for all CAFOs to ap^ly for an NPDES
permit and to develop and implement a
nutrient management plan. The effluent
guidelines being finalized today
establish performance expectations for
existing and new sources to ensure
appropriate storage of manure, as well
as expectations for proper land i
application practiced at the CAFO. The
required nutrient management plan
would identify the site-specific actions
to be taken by the GAFO to ensure,
proper and effective- manure and
wastewater management, including
compliance with the Effluent Limitation
Guidelines. Both sections of the rule
also contain new regulatory
requirements for dry-litter chicken
operations. j j
This improved regulatory program is
also designed to support and :
complement the array of voluntary and
other programs implemented by the
United States Department of Agriculture
(USDA), EPA and the States that help
the vast majority of smaller animal
feeding operations not addressed by this
rule. This rule is an integral part of an
overall federal strategy to support a
vibrant agriculture economy while at
the same time taking important steps to
ensure that all animal feeding
operations manage their manure
properly and protect water quality.
EPA believes that these regulations
will substantially benefit human health
and the environment by assuring that an
estimated 15,500 CAFOs effectively
manage the 300 million tons of manure
that they produce annually. The rule
also acknowledges the States' flexibility
and range of tools to assist small and
medium-size AFOs.
DATES: These final regulations are
effective on April 14, 2003.
ADDRESSES: The administrative record is
available for inspection and copying at
the Water Docket, located at the EPA
Docket Center (EPA/DC) in the
basement of the EPA West Building,
. Room B-102, at 1301 Constitution Ave.,
NW., Washington, DC. The
administrative record is also available
via EPA Dockets (Edocket) at http://
www.epa.gov/edocket under Edocket
number OW-2002-0025. The rule and
key supporting materials are also
electronically available on the Internet
at http://www.epa.gov/npdes/caforule.
FOR FURTHER INFORMATION CONTACT:
Gregory Beatty, U.S. EPA, Office of
Water, Office of Wastewater
Management (4203M), 1200
Pennsylvania Avenue NW., Washington,
DC 20460, 202-564-0724, for
information pertaining to the NPDES
Regulations (Part 122) or Paul Shriner,
U.S. EPA, Office of Water, Office of
Science and Technology (4303T), 1200
Pennsylvania Avenue NW., Washington,
DC 20460, 202-566-1076, for
information pertaining to the Effluent
Guideline (Part 412):
SUPPLEMENTARY INFORMATION:
A. General Information
1. What entities are potentially regulated
by this final'rule?
2. How Can I Get Copies of This Document
and Other Related Information?
B. Under what legal authority is this final
rule issued?
C. How is this preamble organized?
D. What is the Comment Response
Document?
E. What other information is available to
support this final rule?
I. Background Information
A. What is the context for this rule?
B. Why is EPA revising the existing
effluent guidelines and NPDES
regulations for CAFOs?
C. Whkt are the environmental and human
health concerns associated with
improper management of manure and
/ wasiewater at CAFOs?
1. How do the amounts of animal manure
compare to human waste?
2. What are "excess manure nutrients" and
why are they an indication of
environmental concern?
3. What pollutants are present in animal
manure and wastewater?
4. How do these pollutants reach surface
water?
5. How is water quality impaired by animal
manure and wastewater?
6. What ecological and human health
impkcts have been caused by CAFO
maiiure and wastewater?
D. What are the roles of the key entities
involved in the final rule?
1. CAFOs.
2. States.
3. EP/y.
4. USDA.
5. Othjer stakeholders.
6. The, public.
E. What principles have guided EPA's
decisions embodied in this rule?
F. Whkt are the major elements of this final
rulej? Where do I find the specific.
requirements?
1. NPDES Regulations for CAFOs. .
2. Eminent Limitations Guidelines
requirements for CAFOs.
H. WhatjEvents Have Led to This Rule?
A. Thib Clean Water Act
1. The'National Pollutant Discharge
Elimination System (NPDES) permit
program
2. Effluent limitations guidelines and
standards
3. Effljuent guidelines planning process—
Section 304(m) requirements
B. Existing Clean Water Act requirements
applicable to CAFOs
1. Scope and requirements of the 1976
NPDES regulations for CAFOs
2. Scope and requirements of the 1974
feedlot effluent guidelines
C. USDA-EPA Unified National Strategy
for Animal Feeding Operations
in. How! Was This Final Rule Developed?
A. Sm|all Business Advocacy Review
(SBAR) Panel
B. Proposed Rule
C. 2001 Notice of Data Availability
D. 2002 Notice of Data Availability
E. Public Comments
F. Public outreach
1. Prej-proposal activities
2. Pos|t-proposal activities
IV. CAF,O Roles and Responsibilities
A. Who is affected by this rule?
1. Wh|at is an AFO?
2. Whjat is a CAFO?
3. Whjat types of animals are covered by
today's rule?
4. Is my AFO a CAFO if it discharges only
durjng large storm events?
5. How are land application discharges of
manure and process wastewaters :at
CAFOs covered by this rule?
6. How is EPA applying the Agricultural
Storm Water Exemption with respect to
Land Application of CAFO Manure and
Probess Wastewaters?
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7177
7. When and how is an AFO designated as
aCAFO?
8. Can EPA designate an AFO as a CAFO
where the State is the permitting
authority?
9. How can States use non-NPDES
programs to prevent medium and small
operations from being denned or
designated as CAFOs?
10. What CAFOs are new sources?
B. Who needs a permit and when?
1. Who needs to seek coverage under an
NPDES permit?
2, How can a CAFO make a demonstration
of no potential to discharge?
3. When must CAFOs seek coverage under
a NPDES permit?
4. What are the different types of permits?
5. How does a CAFO apply for a permit?
6. What are the minimum required
elements of an NOI or application for an
individual permit?
C. What are the requirements and
conditions in an NPDES permit?
1. What are the different types of effluent
limitations that may be in a CAFO
permit?
2. Effluent limitations guidelines for Large
CAFOs
3. What technology-based limitations apply
to Small and Medium CAFOs?
4. Will CAFOs be required to develop and
implement a Nutrient Management Plan?
5. Does EPA require nutrient management
plans to be developed or reviewed by a
certified planner?
6. What are the special conditions
applicable to all NPDES CAFO permits?
7. Standard conditions applicable to all
NPDES CAFO permits
D. What records and reports must be kept
on-site or submitted?
V. States' Roles and Responsibilities
A. What are the key roles of the States?
B. Who will implement these new
regulations?
C. When and how must a State revise its
NPDES permit program?
D. When must States issue ,new CAFO
NPDES permits?
E. What types of NPDES permits are
appropriate for CAFOs? ,
F. What flexibility exists for States to use
other programs to support the
achievement of the goals of this
regulation?
VI, Public Role and Involvement
A. How can the public get involved in the
revision and approval of State NPDES
Programs?
B. How can the public get involved if a
State fails to implement its CAFO
NPDES permit program?
C. How can the public get involved in
NPDES permitting of CAFOs?
D. What information about CAFOs is
available to the public?
Vn. Environmental Benefits of the Final Rule
A. Summary of the environmental benefits
B. What pollutants are present hi manure
and other CAFO wastes, and how do
they affect human health and the
environment?
1. What pollutants are present in animal
waste?
2. How do these pollutants reach surface
waters?
3. How is water quality impaired by animal
wastes?
4. What ecological and human health
impacts have been caused by CAFO
•wastes?
C. How will water quality and human
health be improved by this rule?
1. What reductions in pollutant discharges
will result from this rule?
2. Approach for determining the benefits of
this rule
3. Benefits from improved surface water
quality
4. Benefits from improved ground water
quality
D. Other (non-water quality) environmental
impacts and benefits
Vin. Costs and Economic Impacts
A. Costs of the final rule
1. Method for estimating the costs of this
rule
2. Estimated annual costs of the final
CAFO regulations
B. Economic Effects
1. Effects on the CAFO operation
2. Market analysis
C. Cost-Benefit and Cost-Effectiveness
Analyses
1. Cost-Benefit Analysis
2. Cost-Effectiveness Analysis
K. Coordination With Other Federal
Programs
A. How does today's rule function in
relation to other EPA programs?
1. Water quality trading
2. Total Maximum Daily Load (TMDL)
3. Watershed permitting
4. Coastal Zone Act Reauthorizatiqn
Amendments of 1990 (CZARA)
5. Clean Water Act section 319 Program
6. Source Water Protection Program
7. What is EPA's position regarding
Environmental Management Systems?
B. How is EPA coordinating with other
federal agencies?
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
1. Background
2. Summary of Final Regulatory Flexibility
Analysis
3. Compliance guide
4. Use of Alternative Definition
D. Unfunded Mandates Reform Act
1. Private costs
2. State Local and Tribal Government Costs
3. Funding and technical assistances
available to CAFOs !
4. Funding available to States
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination with Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children from Environmental Health
Risks and Safety Risks '•
H. Executive Order 13211: Actions that
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
to Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act
Appendix—Form 2B
A. General Information
1, What Entities Are Potentially .
Regulated by This Final Rule?
This final rule applies to new and
existing animal feeding operations
(AFOs) that meet the definition of a
concentrated animal feeding operation
(CAFO), or AFOs that are designated as
CAFOs by the permitting authority.
CAFOs are defined by the Clean Water
Act as point sources for the purposes of
the National Pollutant Discharge ;
Elimination System (NPDES) program.
(33 U.S.C. 1362). The rule also applies
to States and Tribes with authorized
NPDES Programs.
Table 1 lists the types of entities EPA
is now aware could potentially be
regulated by this final rule. This table is
not intended to be exhaustive, but rather
provides a guide for readers regarding
entities likely to be regulated by this
action. Other types of entities not listed
in the table could also be regulated. To
determine whether your facility is
regulated by this action, you should
carefully examine the definitions .and
other provisions of 40 CFR 122.23 and
.the provisions of 40 CFR Part 412,
including the applicability criteria at 40
CFR 412.1. If you have questions
regarding the applicability of this action
to a particular entity, consult one of the
persons listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
TABLE 1.—ENTITIES POTENTIALLY REGULATED BY THIS RULE
Category
Federal, State, and Local Gov-
ernment:
Industry
Examples of regulated entities
North American in-
dustry code (NAIC)
See below
Standard industrial
classification code
See below
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7178 Federal Register/Vol. 68, No. 29 / Wednesday, February 12, 2003 /Rules 'and Regulations
TABLE 1 .—ENTITIES POTENTIALLY REGULATED BY THIS RULE—Continued
Category :
i
f
}
!
i
I
Examples of regulated entities
Operators of animal production operations that meet the defini-
tion of a CAFO:
Beef cattle feedlots (including veal)
Beef cattle ranching and farming
(-togs •
Sheep ;
General livestock, except dairy and poultry
Dairy farms
Broilers, fryers, and roaster chickens
Chicken eggs
Turkey and turkey eggs
Poultry hatcheries
Poultry and eggs
Ducks
Horses and other equines
North American in-
dustry code (NAIC)
112^12
112111
11221
\")lL\ 11949
11299
l^te
11232
11231
11233
11234
11239
112390
11292
Standard industrial
classification code
0211
0212
0213
noiA
DP1Q
n94i
0251
fr?cn
0254
no^o
0272
2. How Can I Get Copies of This
Document and Other Related ;
Information? : •
a. Docket. EPA has established an
official public dockej: for this action
under Docket ID No. IW-00-27. The
official public docket consists of the
documents specifically referenced in
this action, any public comments ;
received, and other information related
to this action. Although a part of the
official docket, the piiblic docket does
not include Confidential Business ;
Information (CBI) or 'other information
whose disclosure is restricted by statute.
The official public docket is the
collection of materials that is available
for public viewing at the Water Docket
in the EPA Docket Center, (EPA/DC)
EPA West, Room B1Q2,1301 ',
Constitution Ave., NW., Washington,
DC. The EPA Docket Center Public :
Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, I
excluding legal holidays. The telephone
number for the Reading Room is [202)
566-1744, and the telephone number for
the Water Docket is (202) 566-2426;
b. Electronic Access. You may access
this Federal Register'document i
electronically through the EPA Internet
under the "Federal Rjegister" listings at
http://www.epa.gov/fedrgstr/. !
An electronic version of the public
docket is available through EPA's j
electronic public docket and comment
system, EPA Dockets; You may use EPA
Dockets at http://www.epa.gov/edocket/
to view public comments, access the
index listing of the contents of the !
official public docket:, and to access!
those documents in the public docket
that are available electronically. '
Although not all docket materials niay
be available electronically, you may still
access any of the publicly available i
docket materials through the docket
facility identified in section A.2.a. Qnce
in the system, select "search," then key
in the appropriate docket identification
number (OW-2002-0025).
B. Under What £egal Authority Is This
Final Rule Issued?
Today's final rule is issued under the
authority of Sections 301, 304, 306, 307,
308, 402, and 501 of the Clean Water
Act, 33 U.S.C. 1311, 1314, 1316, 1317,
1318,1342, and 1361.
C. Howls This Preamble Organized?
Below is an outline for the preamble
to the final rule. It is written in a
question-and-answer format that is
designed to help the reader understand
the information in the rule. Each
question is followed by a concise
answer, a brief summary of what was
proposed, the key comments that the
Environmental Protection Agency (EPA)
received on the proposed rule, and the
principal rationale for EPA's decision.
List of Acronyms
AFO—animal feeding operation
BAT—best available technology
economically achievable
BCT—best conventional pollutant
control technology
BOD—biochemical oxygen demand
BPJ—best professional judgment
BMP—best management practice
BPT—best practicable control
technology currently available
CAFO—concentrated animal feeding
operation
CFR—Code of Federal Regulations
CPU—colony forming units
CNMP—comprehensive nutrient
management plan
CSREES—USDA's Cooperative State
Research, Education, and Extension
Service
CWA—Clean Water Act
CZARA—Coastal Zone Act
Reauthorization Amendments
ELG—effluent limitations guideline
EMS—environmental management
system
EPA—Environmental Protection Agency
EQJP—Environmental Quality
Incentives Program
FAPRI—Food and Agricultural Policy
Research Institute
FR—Federal Register
ICR—Information Collection Request
NODA—Notice of Data Availability
NOI—notice of intent :
NPDESf-National Pollutant Discharge
Elimination System
NRCS-fUSDA's Natural Resources
Conservation Service
NRDC-iNatural Resources Defense
Council
NSPS—bew source performance
standards
NTTAA|—National Technology Transfer
and Advancement Act
NWPCAM—National Water Pollution
Control Assessment Model
OMB—y.S. Office of Management and
Budget
POTW—j-publicly owned treatment
works]
RFA—Regulatory Flexibility Act
SBA—U.S. Small Business
Administration
SBAR fjianel)—Small Business
Advocacy Review Panel
SBREFA—Small Business Regulatory
Enforcement Fairness Act
SRF—Slate Revolving Fund
TMDL—total maximum daily load
TSS—total suspended solids
UMRA-i-Unfunded Mandates Reform
Act j
USDA—[United States Department of
Agriculture
WWTP-j-wastewater treatment plant
D. Whaijs the Comment Response
Document? ;
EPA received more than 11,000
comments on the proposed rule and on
the two supplemental Notices of Data
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Federal Register/Vol. 68, No. 29 / Wednesday, February 12, 2003/Rules and Regulations 7179
Availability. EPA evaluated all the
significant comments submitted and
prepared a Comment Response
Document containing the Agency's
responses to those comments. The
Comment Response Document
complements and supplements this
preamble by providing more detailed
explanations of EPA's final actions. The
Comment Response Document is
available at the Water Docket. See
Section E below for additional
information.
E. What Other Information Is Available
to Support This Final Rule?
In addition to this preamble, today's
final rule is supported by extensive
other information that is part of the
administrative record, such as the
Comment Response Document, and the
key supporting documents listed below.
These supporting documents and the
administrative record are available at
the Water Docket and via e-Docket.
• "Development Document for the
Final Revisions to the National
Pollutant Discharge Elirtiination System
Regulation and the Effluent Guidelines
for Concentrated Animal Feeding
Operations" (EPA 821-R-03-001).
Hereafter referred to as the Technical
Development Document, this document
presents EPA's technical conclusions
concerning the rule. EPA describes,
among other things, the data collection
activities in support of the rule, the
wastewater treatment technology
options, wastewater characterization,
and the estimated costs to the industry.
• "Economic Analysis of the Final
Revisions to the National Pollutant-
Discharge Elimination System
Regulation and the Effluent
Guidelines for Concentrated Animal
Feeding Operations" (EPA 821-R-03-
002). Hereafter referred to as the
Economic Analysis, this document
presents the methodology employed
to assess economic impacts of the
final rule and the results of the
analysis.
• "Cost Methodology for the Final
Revisions to the National Pollutant
Discharge Elimination System
Regulation and the Effluent
Guidelines for Concentrated Animal
Feeding Operations" (EPA 821-R-03-
004). Hereafter referred to as the Cost
Support Document, this document
presents the methodology employed
to estimate costs that will be borne by
CAFOs to comply with the
requirements of the final rule.
• Environmental and Economic
Benefit Analysis of the Final Revisions
to the National Pollutant Discharge
Elimination System Regulation and the
Effluent Guidelines for Concentrated
Animal Feeding Operations" (EPA 821-
R-03-003). Hereafter referred to as the
Benefits Analysis, this document
presents the methodologies and results
of analyses used to assess
environmental impacts of the final rule.
• "Environmental Assessment of
Proposed Revisions to the National
Pollutant Discharge Elimination System
Regulation and the Effluent Guidelines
for Concentrated Animal Feeding
Operations" (EPA 821-R-01-002).
Hereafter referred to as the
Environmental Assessment, this
document illustrates the environmental
impacts associated with animal
agriculture.
• "Information Collection Request for
Final Revisions to the National
Pollutant Discharge Elimination System
Regulation and the Effluent Limitations
Guidelines for Concentrated Animal
Feeding Operations" (EPA ICR No.
1989-02). Hereafter referred to as the
ICR, this document presents estimates of
the labor and capital costs associated
with the recordkeeping and reporting
requirements of the final rule.
I. Background Information
A. What Is the Context for This Rule?
Nationally, there are an estimated 1.3
million farms with livestock. About
238,000 of these farms are considered
animal feeding operations (AFOs)—
agriculture enterprises where animals
are kept and raised in confinement.
AFOs annually produce more than 500
million tons of animal manure that,
when improperly managed, can pose
substantial risks to the environment and
public health. EPA and the United
States Department of Agriculture
(USDA) are committed to a
comprehensive national approach to
ensure that manure and wastewater
from AFOs are properly managed. EPA
and USDA are relying on a
comprehensive suite of voluntary
programs (e.g. technical assistance,
training, funding, and outreach) and
regulatory programs to ensure that AFOs
establish appropriate site-specific
comprehensive nutrient management
plans (CNMPs) that will protect the
environment and public health. Today's
rule is a part of this suite of actions. It
ensures that the largest of these
operations, CAFOs, are required to
develop and implement a nutrient
management plan as a condition of an
NPDES permit. The requirement in this
rule to develop and implement a
nutrient management plan can generally
be fulfilled by developing and
implementing a CNMP.
Congress passed the Clean Water Act
to "restore and maintain the chemical,
physical, and biological integrity of the
nation's waters." (33 U.S.C. 1251(a)).
The Clean Water Act establishes a
comprehensive program for protecting
our Nation's waters. Among its core
provisions, the Act prohibits the
discharge of pollutants from a point
source to waters of the United States
except as authorized by an NPDES
permit. The Clean Water Act also1
requires EPA to establish national
technology-based effluent limitations
guidelines and standards (ELGs) for
different categories of sources. Section
502 of the Clean Water Act specifically
defines the term "point source" to
include CAFOs. In 1974 and 1976, EPA
promulgated regulations that
established ELGs for large feedlots
(CAFOs) and established permitting
regulations for CAFOs. Today's final
rule revises the more than 25-year old
requirements that apply to CAFOs. This
regulatory action, which applies
primarily to the largest CAFOs, is an
important component of the overall
effort to ensure effective management of
manure.
Focusing EPA's regulatory program on
the largest operations, which present the
greatest potential risk to water quality,
is consistent with the Unified National
Strategy for Animal Feeding Operations
jointly developed by EPA and USDA
(USEPA/USDA, March 1999). The
Strategy specifies that the vast majority
of operations that confine animals are
and will continue to be addressed
through locally focused voluntary
programs. The Strategy defines a
national objective for all AFOs to-
develop CNMPs to minimize impacts on
water quality and public health from
AFOs. The vast majority (estimated to
be about 95%) of these CNMPs will be
developed under voluntary programs.
The requirement in today's rule that the
largest of these operations develop and
implement a nutrient management plan
is consistent with the objective of the
Strategy.
B. Why Is EPA Revising the Existing
Effluent Guidelines and NPDES
Regulations for CAFOs?
Despite more than 25 years of
regulation of CAFOs, reports of
discharge and runoff of manure and
manure nutrients from these operations
persist. Although these conditions are in
part due to inadequate compliance with
and enforcement of existing regulations,
EPA believes that the regulations
themselves also need revision. The final
regulations being announced today will
reduce discharges that impair water
quality by strengthening the permitting
requirements and performance
standards for CAFOs. These changes are
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7180 .Federal .Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
expected to mitigate, future water quality
impairment and the Associated human
health and ecological risks by reducing
pollutant discharges! from facilitiesithat
confine a large number of animals in a
single location. j • '
EPA's revisions to, the existing ;
regulations also address the changes
that have occurred in the animal ;
production industries in the United
States since the development of th4
existing regulations.'The continued
trend toward fewer But larger
operations, coupled jwith greater
emphasis on more intensive production
methods and specialization, is
concentrating more manure nutrients
and other animal waste constituents
within some geographic areas. These
large operations often do not have ;
sufficient land to effectively use the
manure as fertilizer. (Furthermore, there
is limited land acreage near the CAFO
to effectively use the; manure. This trend
has coincided with increased reports of
large-scale discharges from CAFOs,: as
well as continued ruhoff that is i
contributing to the significant increase,
in nutrients and resulting impairment of
many U.S. water bodies. I
Finally, EPA's revisions to the
existing regulations -yvill make the
regulations more effective for the
purpose of protecting or restoring water
quality. The revisions will also make the
regulations easier to ^understand and
better clarify the conditions under '
which an AFO is a CAFO and, therefore,
subject to the regulatory requirements of
today's final regulatipns. ;
C. What Are the Environmental and
Human Health Concerns Associated
With Improper Management of Manure
and Wastewater at CAFOs? '
This section provides a brief summary
of the environmental and human health
concerns associated with the improper
management of manure and wastewater
at CAFOs. It is intended to provide 'the
necessary context for discussions hi
subsequent sections of this preamble.
Information is provided on the amount
of manure generated by animal
agriculture and the areas of the country
where the amount of manure generated
by these operations is considered excess
at the farm and county levels as defined
in analyses by USDA. This information
is critical to framing lie action EPA is
taking today. A detailed discussion of
the environmental arid human health
.impacts is presented |in Section VII of
thas preamble, entitle^ Environmental
Benefits of the Final Rule. j
Livestock and poultry manure, if hot
property handled ancl managed by the
CAFO, can contribute pollutants to the
environment and pos!e a risk to human
and ecological .health. EPA's
administrative record for this final rule
includes estimates of the amount of
manure and excess nutrients generated
each year by CAFOs and provides
information on the types of pollutants
known to be present in animal manure
and wastewater. The administrative
record also documents the potential
environmental problems associated with
CAFOs, based on States reporting water
quality impairment attributable to
agricultural and animal production,
survey data that show human and
ecological health risks associated with
these pollutants, and documented cases
linking these risks to the discharge and '
runoff of pollutants from livestock and
poultry facilities. More information is
provided in the 2001 proposed rule (66
FR 2972-2974 and 66 FR 2976-2984)
and other support documents referenced
in the proposal and in the
administrative record for this final rule.
.The administrative record contains
information on the scientific and
technical literature, as well as available
survey and monitoring data, to
corroborate the Agency's findings.
1. How Do the Amounts of Animal
Manure Compare to Human Waste?
USDA estimates that operations that
confine livestock and poultry animals
generate about 500 million tons of
manure annually (as excreted). This
compares to EPA estimates of about 150
million tons (wet weight) of human
sanitary waste produced annually in the
United States, assuming a U.S.
population of 285 million and an
•average waste generation of about 0.518
tons per person per year. By this
estimate, all confined animals generate
3 times more raw waste than is
generated by humans in the U.S. As a
result of today's action, EPA is
regulating close to 60 percent of all
manure generated by operations that
confine animals. Of the estimated
amount of nutrients generated by these
operations that is in excess of cropland
needs, EPA's regulation will account for
nearly 70 percent of manure generated
by these operations,
2. What Are "Excess Manure Nutrients"
and Why Are They an Indication of
Environmental Concern?
An analysis developed by USDA
provides a means to consider the
potential environmental risk from
confined livestock and poultry manure
based on the amount of "excess"
manure nutrients generated by CAFOs.
USDA defines "excess manure
nutrients" on a confined livestock farm
as manure nutrient production that
exceeds the capacity of the crop to
assimilate the nutrients. USDA's
analysis of 2997 Census of Agriculture
data indicates that a considerable
portion! of the manure nutrients ;
generated at larger animal production
facilities exceeds the crop nutrient
needs, both at the farm and local county
levels. Given consolidation trends in the
industry toward larger-sized operations
that tend to have less available land on
which to spread manure, the amount of
excess manure nutrients being produced
has been rising. i
Among the principal reasons for the
farm-level excess of nutrients generated
is inadequate land for utilizing manure.
USDA data show that the amount, of
nutrients, and the amount of excess
nutrients, produced by confined animal
operations rose about 20 percent from
1982 10,1997. During that same period,
cropland and pastureland controlled by
these farms declined from an average of
3.6 acre|s in 1982 to 2.2 acres per 1,000
pounds: live weight of animals in 1997.
The combination of these factors has
contributed to an increase in the amount
of excess nutrients produced at these
operations. Larger-sized operations with
1,000 or more animals exceeding ;1,000
pounds! accounted for the largest share
of excess nutrients in 1997. Roughly 60
percent of the nitrogen and 70 percent
of the phosphorus generated by these
operations must be transported off-site.
By sector, USDA estimates that'
operations that confine poultry account
for the majority of on-farm excess'
nitrogen and phosphorus. Poultry
operations account for nearly one-half of
the total recoverable nitrogen, but on-
farm use is able to absorb less than 10
percentjof that amount. In 1997 poultry
operations accounted for about two-
thirds of the total excess on-farm
nitrogen. About half of the estimated on-
farm excess phosphorus was generated
by poultry. This is attributable to not
only the limited land area for manure
application but also the generally; higher
nutrient content of poultry manure
compared to the manure of most other
farm animals, as reported in the
scientific literature. Dairies and hog
operatiqns are the other dominant
livestock types shown to contribute to
excess o|n-farm nutrients, particularly
phosphorus.
The regions of the United States that
show the largest increase in excess
nutrients between 1982 and 1997:are the
Southeast and the Mid-Atlantic. The
excess ajmounts are mostly the result of
the number and concentration of large
poultry pid hog operations in those
regions.,These operations generate high
nutrient concentrations and often have
the smallest land area per animal iuhit
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7181
for manure application in the United
States.
USDA's analysis also indicates which
counties have the potential for excess
manure nutrients defined as manure
nutrients produced in a county in
excess of the assimilative capacity of
crop and pastureland in that county.
(The analysis includes counties that
have nutrient levels that exceed the
assimilative capacity for all of the crop
and pastureland in the county, as well
as those counties where half of the
county's total nitrogen or phosphorus
could he provided by manure from
confined animal operations.) The
counties with potential excess manure
nitrogen totaled 165 counties across the
United States in 1997; die counties with
potential excess manure phosphorus
totaled 374 counties. The areas of
particular concern for potential county-
level excess manure nutrients are in
North Carolina, Georgia, Alabama,
Mississippi, Arkansas, California,
'Maryland, Delaware, Pennsylvania,
Virginia, and Washington. If current
trends in die livestock and poultry
industry continue, more manure will he
produced in areas without the physical
capacity to agronomically use all the
nutrients contained in that manure.
USDA's analysis is reported in
"Confined Animal Production and
Manure Nutrients" (Agriculture
Information Bulletin 771) and also in
"Confined Animal Production Poses
Manure Management Problems" in the
September 2001 issue of USDA's
Agricultural Outlook. Both are available
at USDA's Web site at http://
www.ers.usda.gov/. Additional
documentation on how this analysis
was conducted is in USDA's "Manure
Nutrients Relative to the Capacity of
Cropland and Pastureland to Assimilate
Nutrients: Spatial and Temporal Trends
for the United States," December 2000,
available at http://
www.nhq.nrcs.usda.gov/land/pubs/
manntr.html. These documents are also
available in the administrative record
for today's final rule (i.e. docket number
W-00-27).
3. What Pollutants Are Present in
Animal Manure and Wastewater?
Pollutants most commonly associated
with animal waste include nutrients
(including ammonia), organic matter,
solids, patiiogens, and odorous
compounds. Animal waste can also be
a source of salts and various trace
elements (including metals), as well as
pesticides, antibiotics, and hormones.
These pollutants can be released into
the environment through discharge or
runoff if manure and wastewater are not
properly handled and managed.
4. How Do These Pollutants Reach
Surface Water?
Pollutants in animal waste and
manure can' enter the environment
through a number of pathways. These
include surface runoff and erosion,
overflows from lagoons, spills and other
dry-weather discharges, leaching into
soil and ground water, and
volatilization of compounds (e.g.,
ammonia) and subsequent redeposition
on the landscape. As documented in the
administrative record, pollutants from
animal manure and wastewater can be
released from an operation's animal
confinement area, treatment and storage
lagoons, and manure stockpiles, and
from cropland where manure is often
land-applied.
5. How Is Water Quality Impaired by
Animal Manure and Wastewater?
Agricultural operations, including
CAFOs, now account for a significant
share of the remaining water pollution
problems in the United States, as
reported in the National Water Quality
Inventory: 2000 Report (hereafter the
"2000 Inventory"]. This report, prepared
every 2 years under Section 305(b) of
the Clean Water Act, summarizes States'
reports of impairment to their water
bodies and the suspected sources of
those impairments. A more
comprehensive discussion of the results
of the 2000 Inventory is included in
Section VII of this preamble.
EPA's 2000 Inventory data indicate
that the agricultural sector including
crop production, pasture and range
grazing, concentrated and confined
animal feeding operations, and
aquaculture is the leading contributor of
pollutants to identified water quality
impairments in the Nation's rivers and
streams. This sector is also the leading
contributor in the nation's lakes, ponds,
and reservoirs. Agriculture is also
identified as die fifth leading
contributor to identified water quality
impairments in the nation's estuaries.
The inventory does not allow a
comprehensive breakout of water
quality impairments attributable to
CAFOs, but EPA's data show that water
quality concerns tend to be greatest in
regions where crops are intensively
cultivated and where livestock
operations are concentrated.
The leading pollutants impairing
surface water quality in the United
States as identified in the 2000 survey
data include nutrients, pathogens,
sediment/siltation, and oxygen
depleting substances. These pollutants
can originate from a variety of sources,
including the animal production
industry.
The 2000 Inventory provides a general
indication of national surface water
quality. While concerns have sometimes
been raised about the comparability and
consistency of these data across States,
the report highlights in a general way
the magnitude of water quality
impairment from agriculture and the
relative contribution compared to other
sources. Moreover, the findings of diis
report are consistent with odier reports
and studies conducted by government
and independent researchers that
identify CAFOs as an important
contributor of surface water pollution,
as summarized in the administrative
record for this rulemaking.
6. What Ecological and Human Health
Impacts Have Been Caused by CAFO
Manure and Wastewater?
.. Among the reported environmental
problems associated with animal
manure are surface water (e.g., lakes,
streams, rivers, and reservoirs) and
ground water quality degradation,
adverse effects on estuarine water
quality and resources in coastal areas
and effects on soil and air quality. The
scientific literature, which spans more
than 30 years, documents how this
degradation can contribute to increased
risk to aquatic and wildlife ecosystems;
an example is the large number offish
kills in recent years. Human and
livestock animal health can also be
affected by excessive nitrate levels in
drinking water and exposure to .
waterborne human pathogens and other
pollutants in manure. The
administrative record provides more
detailed information on the scientific
and technical research to support these
findings.
Section VII of this document provides
additional information concerning the
adverse impacts of pollutants associated
with manure in surface water. Both
ecological and human health impacts
are addressed. :
D. What Are the Roles of the Key
Entities Involved in the Final Rule?
EPA recognizes the role of many
interested parties in the development of
and, ultimately, the successful
implementation of this final rule. To the
greatest extent possible, EPA has •
attempted to strike a reasonable balance
among the many interests. A short
summary of their broad roles is
provided below.
1. CAFOs /'
Entities that are defined or designated
as CAFOs have clear and binding Legal
obligations under this regulation.,4n
general, all CAFOs have a mandatory
duty to apply for an NPDES pesmit and
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7182 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Riiles and Regulations
must comply with the technology'and
water quality-based limitations in!the
permit as defined by the permitting
authority. Only CAFOs that have ;
successfully demonstrated no potential
to discharge may avoid a permit. Each
permitted CAFO must also develop and
implement a site-specific nutrient
management plan. EPA fully expects
that a CNMP.that is properly developed
and implemented, consistent with
USDA guidance, will satisfy the nutrient
management requirements of this jrule.
2. States , !
The States, including their
environmental, agriculture, and :
conservation agencies, have the key
leadership role in implementing ;
programs to ensure jthat AFOs take the
important steps neejded to implement
sound management practices that;
protect water quality. State regulatory
agencies will play af central role in
implementing today's final rule while
supporting the voluntary efforts of other
State programs and Agencies. :
3. EPA : •
I ;
EPA's statutory obligation is to
establish national regulations that
protect and restore 'the chemical, j
physical, and biological integrity of the
Nation's waters. EPJA has undertaken an
extensive outreach process to promote
understanding of thje science, policy,
and economic issuejs surrounding
animal agriculture. [The Agency will
continue to work effectively with the
varied interest groups to ensure effective
implementation, compliance assistance,
and enforcement ofithese regulations.
4. USDA i ;
USDA is EPA's partner in working
collaboratively to ensure that USDA's
voluntary programs and EPA's
regulatory programs complement each
other to support effective nutrient'
management by AF0s. EPA and USDA
will continue to coordinate the i
development and irnplementationiof
tools to support agriculture, in ways that.
respect the different roles of the two
agencies. , i
5. Other Stakeholders '
A host of other entities, such as
research and educational institutions,
soil and water conservation districts,
watershed groups, and many others, can
contribute to the use of sound i
agricultural practices and protection of
•water quality. The private sector plays
an important role iri ensuring that;
CAFQs have the tools and expertise
available to protect Water quality while
enhanci-ng production and remaining
profitable. For example, the private
sector in partnership with educational
institutions and other stakeholders can
explore innovative technologies for the
management and utilization of animal
manure and provide the needed
expertise to support development of
sound, site-specific, and technically
based nutrient management plans.
6. The Public
The public has had, and continues to
demonstrate, a keen interest in many
aspects of animal agriculture. This final
rule establishes obligations for CAFOs
to protect water quality and affirms the
public's role and involvement
throughout the regulatory program.
E. What Principles Have Guided EPA's
Decisions Embodied in This Rule?
EPA has considered the
. implementation of the existing ;
regulations which are more than 25
years old, changes in the industry, the
extensive comments on the proposed
rule and supplemental notices of data
availability, and countless studies,
reports, and data in developing this
final rule. At the same time, EPA has
tried to embody some important
principles throughout the final rule. The
Agency strives to ensure its rules are
based on sound science and economics,
promote emerging technologies, and
protect watersheds. In addition, the
following principles have guided this
ralemaking:
Simplicity and Clarity
EPA has tried to make this final rule
as simple and easy to understand as
possible. This rule provides a clear
understanding of who is covered and
what they are expected to do.
Emphasis on Large CAFOs
This rule focuses on the operations
that pose the greatest risk to water
quality. These operations are
predominantly large CAFOs and some
smaller CAFOs that pose a high risk to
water quality.'
Flexibility for;States
This rule establishes a strong and
consistent national expectation for
CAFOs, yet provides flexibility for
States to address site-specific situations.
Sound Nutrient Management Planning
This rule embodies the goal of
developing site-specific nutrient
management plans to ensure that animal
manure is used consistent with proper
agriculture practices that protect water
quality.
F. What Are the Major Elements of This
Final Pule? Where Do I Find the Specific
Requirements? '•
This section provides a very brief
summary of the major elements of this
final rule and a brief index on where
each of the requirements is located in
the final regulations. The regulations for
the NPDES permit program are in Part
122 of. Title 40 of the Code of Federal
Regulations. These NPDES regulations
include requirements that apply to all
point ^ources, including CAFOs. The
national effluent limitations guidelines
for CAFOs are .in Part 412 of Title 40 of
the Code of Federal Regulations. This
summary is not a replacement for the
actual: regulations.
1. NPDES Regulations for CAFOs
Ovetall, this final rule maintains
many 'of the basic features and the
overall structure of the 1976 NPDES
regulations with some important
exceptions. First, all CAFOs have a
mandatory duty to apply for an NPDES
permit, which removes the ambiguity of
whether a facility needs an NPDES
permit, even if it discharges only in the
event of a large storm. In the event that
a Large CAFO has no potential to '•
discharge, today's rule provides a
process for the CAFO to make such a
demonstration in lieu of obtaining a
permit. The second significant change is
that large poultry operations are
covered, regardless of the type of waste
disposal system used or whether the
litter is managed in wet or dry form.
Thirjd, under this final rule, all CAFOs
covere'd by an NPDES permit are '
required to develop and implement a
nutrient management plan. The plan
wouldj identify practices necessary to
implement the ELG and any other
requirements in the permit and would
include requirements to land apply
manure, litter, and process wastewater
consistent with site specific nutrient
management practices that ensure
appropriate agricultural utilization of
the nujtrients.
2. Effluent Limitations Guidelines
Requirements for CAFOs
a. Existing sources. The final ELGs
published today will continue to apply
to only Large CAFOs, historically
referred to as operations with 1,000 or
more animal units, although the '
requirements for existing sources and
new sources are different for certain
animal sectors. In the case of existing
sourcejs, the ELGs will continue to
prohibit the discharge of manure and
other process wastewater pollutants,
except for allowing the discharge -of
process wastewater whenever rainfall
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7183
events cause an overflow from a facility
designed, constructed, and operated to
contain all process waste-waters plus the
runoff from a 25-year, 24-hour rainfall
event. In addition, the ELGs that require
land application at the CAFO must be
at rates that minimize phosphorus and
nitrogen transport from the field to
surface waters in compliance with
technical standards for nutrient
management established by the Director.
The ELGs also establish certain best
management practice (BMP)
requirements that apply to the
production and land application areas.
b. New sources. For new large beef
and dairy operations, the ELGs establish
production area requirements that are
the same as those for existing sources.
In the case of large swine, veal, and
poultry operations that are new sources,
a new zero discharge standard is
established. The rule also clarifies that
where waste management and storage
facilities are designed, constructed,
operated and maintained to contain all
manure, litter and process wastewater,
including the runoff and direct
precipitation from a 100-year, 24-hour
rainfall event, and is operated in
accordance with certain other
requirements, this will satisfy the new
standard. Land application
requirements for both groups are
TABLE 1.1.—REGULATORY SUMMARY
identical to those established for
existing sources.
Table 1.1 provides an annotated
summary of the key elements of these
final regulations as well as the specific
regulatory citation for each change. The
chart is intended only to provide a
summary and roadmap to the
regulations and is not a definitive
description of all regulatory
requirements. Table 1.2 provides a
summary of the time frames for the
implementation and complying with the
requirements of today's rulemaking.
Topic
Regulatory cite (40
CFR)
Definitions
Animal Feeding Operation (AFO) 122.23(b)(1)
Concentrated Animal Feeding Operation (CAFO) 122.23(b)(2)
Production Area j 122.23(b)(8)/412.2(h)
Land Application Area 122.23(b)(3)/412.2(e)
Large CAFOs 122.23(b)(4)
Manure i : 122.23(b)(5)
Medium CAFOs 122.23(b)(6) .
Process Wastewater 122.23(b)(7)/412.2(d)
Overflow 412.2(g)
10-year, 24-hour and 25-year, 24-hour storm 412.2(i)
Setback ; 412.4(b)(1)
Vegetated buffer 412.4(b)(2)
Multi-year phosphorus application 412.4(b)(3)
Who Needs an NPDES Permit?
Designated CAFOs , : 122.23(c)
Duty to apply 122.23(d)
Land application discharges from a CAFO are subject to NPDES requirements 122.23(e)
No Potential to Discharge determinations 122.23(f)
When Must CAFOs Apply for Coverage Under an NPDES Permit?
Sources covered under prior regulations 122.23(g)(1)
Newly covered CAFOs 122.23(g)(2)
New sources and new dischargers 122.23(g)(3) arid (4)
Designated CAFOs 122.23(g)(5)
How Do CAFOs Apply for an NPDES Permit?
Permit application requirements—Individual or general permits 122.21(i)(1) and
122.28(b)(2)(ii):
: What Is Required in NPDES Permits Issued to CAFOs?
Effluent limitations 122.42(e)(1)
Requirements for CAFOs subject to the ELGs (Part 412):
Subpart C—Dairy and Beef Cattle Other Than Veal 412.30
Subpart C—Dairy and Beef Cattle Other Than Veal: Effluent limitations attainable by the application of the best 412.31
practicable control technology currently available (BPT).
Subpart C—Dairy and Beef Cattle Other Than Veal: Effluent limitations attainable by the application of the best 412.32
control technology for conventional pollutants (BCT).
Subpart C—Dairy and Beef Cattle Other Than Veal: Effluent limitations attainable by the application of the best 412.33
available control technology economically achievable (BAT).
Subpart C—Dairy and Beef Cattle Other Than Veal: New source performance standards (NSPS) 412.35
Subpart D—Swine, Poultry, and Veal 412.40 <••'
Subpart D—Swine, Poultry, and Veal: Effluent limitations attainable by the application of the best practicable con- 412.43
trol technology currently available (BPT). /
Subpart D—Swine, Poultry, and Veal: Effluent limitations attainable by the application of the best control tech- 412.44 /
nology for conventional pollutants (BCT). . /
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7184 Federal Register/Yol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
TABLE 1.1.-
-REGULATORY SUMMARY—Continued i
! ' Topic
Subpart D — Swine, Poultry, and yeal: Effluent limitations attainable by the application
technology economically achievable (BAT).
Subpart D — Swine Poultry and Veal New source performance standards (NSPS)
Subparts C andtD Required Land Application Best Management Practices . . .
Subparts C and D — Inspection and Record Keeping Requirements
Additional NPDES GAFO permit requirements:
Nutrient management plan development and implementation
Record-keeping' I
Annual reporting requirement ....i
I"1..'. '.
of the best available control
i
T ""
!
i
f :
'I '
" I • " ' '
Regulatory cite (40
CFR)
412.45
412.46
4124(c)
412.37 and 41 2.47
122.42(e)m
122.42(e)(2)
12242(e)(3)
122.42(e)(4)
TABLE 1.2.—CONSOLIDATED TIME LINE FOR IMPLEMENTING TODAY'S RULEMAKING
-! : :
Milestone: ; j
Effective date of regulation ,
Time Frame
I . . - •
April 14, 2003. !
Effective date of Effluent Guideline requirements for the production
area applicabje to Large CAFOs.
Effective date of Effluent Guideline requirements for the land appli-
cation area applicable to Large CAFOs.
Effective date for all CAFOs to develop and implement nutrient
management jplans.
Duty to Apply: j :
Operations defined as CAFOs prior to April 14, 2003 !
Operations defined as CAFOs as of April 14, 2003, and that were
not defined as CAFOs prior to that date.
Operations thatj become definecj as CAFOs after April 14, 2003,
but which are1 not new sources.
New sources ...j ,
Designated CAFOs ;.
State Program Revision: •
No statutory changes needed tojrevise NPDES Program
Statutory changes needed to revise NPDES Program
June 12, 2003.
By December 31, 2006.
By December 31, 2006, except for Large CAFOs that are new sources,
by date of commencing operations.
Must have applied by the date required in 40 CFR 122.21 (c).
As specified by the permitting authority, but no later than April 13,
2006. j
(a) Newly constructed operations: 180 days prior to the time the CAFO
commences operation, (b) Other operations (e.g., increase In num-
ber of animals): As soon as possible but no later than 90 days after
becoming defined as a CAFO, except that, if the operational change
that causes the operation tp be defined as a CAFO would not have
caused it to be defined as a CAFO prior to April 13, 2003, the oper-
ation must apply no later than April 13, 2006 or 90 days after be-
coming defined as a CAFOj whichever is later.
180 days prior to the time the: CAFO commences operation.
90 days after receiving notice of designation.
April 12, 2004.
April 13, 2005.
H. What Events Have Led to Thjs Rule?
The revisions to the National'
Pollutant Discharge Elimination System
(NPDES) and Effluent Limitation
Guidelines Programs specified in this
final rule are focused on those livestock
and poultry operations that are defined
or designated as CAFOs. CAFOs are
defined as point sources under the
Clean Water Act. [Following is a'brief
historical context of key regulatory,
legal, and policy Actions which have
collectively led to today's action.
A. The Clean Wafer Act
Congress passed the Clean Water Act
to "restore and m'aintain the chemical,
physical, and biojlogical integrity of the
Nation's waters." (33 U.S.C. 1251(a)).
The Clean Water [Act establishes a
comprehensive program for protecting
and .restoring our Nation's waters.
Among its core provisions, the Clean
Water Act prohibits the discharge of
pollutants from a point source to waters
of the United States except as
authorized by an NPDES permit. The
Clean Water Act establishes the NPDES
permit program to authorize and
regulate the; discharges of pollutants to
waters of the United States. EPA has
issued comprehensive regulations that
implement the NPDES program at 40
CFR part 122. The Clean Water Act also
provides for the development of
technology-based and water quality-
based effluent limitations that are
implemented through NPDES permits to
control discharges of pollutants.
1. The National Pollutant Discharge
Elimination System (NPDES) Permit
Program
Under the NPDES permit program, all
point sources that discharge pollutants
to waters of the United States must
apply for an NPDES permit and may
discharge pollutants only in compliance
with the terms of that permit. Such
permits must include any nationally
established, technology-based effluent
discharge limitations (effluent
guidelines—discussed below, in
subsection II.A.2). In the absence of an
applicable national effluent guideline,
NPDES permit writers may establish
techjnology-based requirements as
determined by the permitting authority
on a! case-by-case basis, based on their
"best professional judgment" (BPj).
Water quality-based effluent
requirements are also included in
permits where technology-based
requirements are not sufficient to!ensure
compliance with State water quality
standards or where required to
implement a Total Maximum Daily
Load (TMDL). For information on
TMDLs see section IX.A.2 of this
preamble.
Technology- and water quality-based
requirements may be in the form of
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Federal Register/Vol. 68, No. 29/ Wednesday, February 12, 2003/Rules and Regulations 7185
numeric effluent limitations or in the
form of specific BMPs or other non-
numeric effluent limitations and
standards. In addition, NPDES permits
normally include reporting, record-
keeping, and other requirements and
standard conditions (conditions that
apply to all NPDES permits, such as the
duty to properly operate and maintain
equipment and treatment systems).
NPDES permits may be issued by EPA
or a State, Territory, or Tribe authorized
by EPA to implement the NPDES
program. Currently, 45 States and the
Virgin Islands are authorized to
administer the NPDES program. This
means that most CAFOs will obtain
NPDES permits from State governments,
not from EPA. Alaska, Arizona, the
District of Columbia, Idaho,
Massachusetts, New Hampshire, New
Mexico, and Puerto Rico and other
territories are not currently authorized
to implement the NPDES program. In
addition, Oklahoma, although
authorized to administer the NPDES
program, does not have CAFO
regulatory authority. No Tribe is
currently authorized to implement the
NPDES program. This means that
CAFOs located in the above-named
jurisdictions or in Indian Country will
obtain their NPDES permits from EPA.
An NPDES permit may be either an
individual permit tailored for a single
facility or a general permit applicable to
multiple facilities. Before an individual
permit is issued, the owner or operator
must submit a permit application with
facility-specific information to the
permitting authority, which reviews the
information and prepares a draft permit.
The permitting authority prepares a fact
sheet explaining the draft permit and
publishes the draft permit and fact sheet
for public review and comment.
Following the permitting authority's
consideration of public comments, a
final permit is issued. Specific
procedural requirements apply to the
modification, revocation and reissuance,
and termination of an NPDES permit.
NPDES permits are subject to a
maximum 5-year term and may be
renewed when tiieir term expires.
General NPDES permits are available
to address categories of discharges that
involve similar operations with similar
wastes. Once a general permit is drafted,
it is published for public review and
comment accompanied by a fact sheet
that explains the permit. Following
EPA's or the State permitting authority's
consideration of public comments, a
final general permit is issued. The
general permit specifies the type or
category of facilities that may obtain
coverage under the permit, To gain
permit coverage, facilities generally
must submit a "notice of intent" (NOI)
to be covered under the general permit.
Both general permits and individual
permits are used to implement the same
pollution control standards.
2. Effluent Limitations Guidelines and
Standards
Effluent limitations guidelines and
standards ("effluent guidelines" or
"ELGs") are national regulations that
establish limitations on the discharge of
pollutants by industrial category and
subcategory. For each category and
subcategory guidelines address three
classes of pollutants: (1) Conventional
pollutants (i.e., total suspended solids
(TSS), oil and grease, biochemical
oxygen demand (BOD), fecal coliform
bacteria, and pH); (2) toxic pollutants
(e.g., toxic metals such as lead and zinc;
toxic organic pollutants such as
benzene); and (3) non-conventional
pollutants (e.g., phosphorus). These
technology-based requirements are
subsequently incorporated into NPDES
permits. The Clean Water Act provides
that effluent guidelines may include
numeric or non-numeric limitations.
Non-numeric limitations are usually in
the form of BMPs. The effluent
guidelines are based on the degree of
control that can be achieved using
various levels of pollution control
technology, as outlined below.
a. Best Practicable Control
Technology Currently Available (BPT)
—Section 304(b)(l) of the Clean Water
Act. In the guidelines for an industry
category, EPA defines BPT effluent
limits for conventional, toxic, and non-
conventional pollutants. Traditionally,
EPA establishes BPT effluent limitations
based on the average of the best
performances of facilities within the
industry of various ages, sizes, processes
or other common characteristics. Where
existing performance is uniformly
inadequate, EPA may require higher
levels of control than those currently in
place in an industrial category if the
Agency determines that the technology
can be practically applied. In specifying
BPT, EPA looks at a number of factors.
EPA first considers the cost of achieving
effluent reductions in relation to the
effluent reduction benefits. The Agency
also considers the age of the equipment
and facilities, the processes employed
and any required process changes,
engineering aspects of the control
technologies, non-water quality
environmental impacts (including
energy requirements), and such other
factors as the Agency deems appropriate
(33 U.S.C. 304(b)(l)(B)).
b. Best Available Technology
Economically Achievable (BAT)—
Section 304(b)(2) of the Clean Water
Act. In general, BAT represents the best
existing economically achievable
performance of direct discharging
facilities in the industrial category or
subcategory. The factors considered in
assessing BAT are the cost of achieving
BAT effluent reductions, the age 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 requirements may be based on
effluent reductions attainable through
changes in a facility's processes and
operations. As with BPT, where existing
performance is uniformly inadequate,
BAT may be based on technology.
transferred from a different subcategory
within an industry or from another
industrial category. BAT may be based
on process changes or internal controls,
even when these technologies are not
common industry practice.
c. Best Conventional Pollutant Control
Technology (BCT)—Section 304(b)(4) of
the Clean Water Act. The 1977 .
amendments to the Clean Water Act
required EPA to identify effluent
reduction levels for conventional.
pollutants associated with BCT .
technology for discharges from existing
industrial point sources. In addition to
other factors specified in Section
304(b)(4)(B), the Clean Water Act
requires that EPA establish BCT :
requirements after considering a two-
part "cost-reasonableness" test. EPA
explained its methodology for the
development of BCT limitations in July
1986 (51 FR 24974). Section 304(a)(4)
designates the following as conventional
pollutants: BOD, TSS, fecal coliform
bacteria, pH, and any additional
pollutants defined by the Administrator
as conventional. The Administrator
designated oil and grease as an
additional conventional pollutant on
July 30, 1979 (44 FR 44501).
d. New Source Performance
Standards (NSPS)—Section 306 of the
Clean Water Act. New Source
Performance Standards (NSPS) reflect
effluent reductions that are achievable
based on the best available '
demonstrated control technology.; New
facilities have the opportunity to install
• ' /
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7186 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
the best and most efficient production
processes and wastewater treatment
technologies. As |a result, NSPS'
represents the greatest degree of effluent
reduction attainable through the
application of the best available
demonstrated control technology for all
pollutants (conventional, non- |
conventional, anji priority pollutants].
In establishing NSPS, EPA is directed by
the Clean Water Act to take into;
consideration the cost of achieving the
effluent reduction and any non-water
quality environmental impacts and
energy requirements. !
3. Effluent Guidelines Planning
Process—Section! 304(m) Requirements
Section 304(m) of the Clean Water
Act, added by the Water Quality Act of
1987, requires EFJA to establish
schedules for (1) Reviewing and(revising
existing effluent limitations guidelines
and standards and (2) promulgating new
effluent guidelines. On May 28,|1998,
EPA published a [Notice of Proposed
Effluent Guidelines Plan (63 FR; 102)
that established schedules for ;
developing new and revised effluent-
guidelines for several industry
categories. One o;f the industries, for
which the Agency established a
schedule was "Feedlots" (swine,
poultry, dairy and beef cattle).
a. Clean Water\Act Section 304(m)
consent decree. The Natural Resources
Defense Council (NRDC) and Public
Citizen, Inc. filed, suit against the
Agency, alleging {violation of section
. 304(m) and other! statutory authorities
that require promulgation of effluent
guidelines (NRDG et al. v. Whitman,
Civ. No. 89-2980J (D.D.C.)). Under the
terms of the consent decree in tfyat case,
as amended, EPA agreed, among other
things, to propose effluent guidelines for
swine, poultry, beef and dairy portions
of the animal industry by December 15,
2000, and to takelfinal action by
December 15, 2002. '
I I
B. Existing Clean\Water Act
Requirements Applicable to CAFOs
EPA's regulation of CAFOs dates to
the 1970s. The existing NPDES CAFO
regulations were fssued on March 18,
1976 (41 FR 1145:8). The existing
national effluent limitations guidelines
and standards for feedlots were jssued
on February 14,1974 (39 FR 5704). The
discussion belowi provides an overview
of the scope and requirements imposed
under the existing NPDES CAFO
-regulations and feedlot effluent,
guidelines. It alsc| explains the ;
relationship of these two regulations,
and £t briefly summarizes other federal
and State regulations that potentially
affect AFOs. i :
1. Scope and Requirements of the 1976
NPDES Regulations for CAFOs
This section provides, a simplified
summary of the previous NPDES
regulation to provide context for today's
action. The,previous NPDES CAFO
regulations promulgated in 1976,
determined which AFOs were defined
or could be designated as CAFOs under
the Clean Water Act and therefore
subject to NPDES permit regulations.
Under those regulations, CAFOs were
defined as AFOs that confined more
than 1,000 animal units (AU). In
addition, an AFO that confined 300 to
1,000 AU was defined as a CAFO if it
discharged pollutants through a man-
made device or if pollutants were
discharged to waters of the United
States that ran through the facility or
otherwise came into contact with the
confined animals. AFOs were not
defined as CAFOs, however, if they
discharged only during a 25-year, 24-
hour storm. Under the 1976 NPDES
CAFO regulations, the permitting
authority could also designate any AFO
a CAFO, including those with fewer
than 300 AU, if it met the discharge
criteria specified above and was
determined'to be a significant
contributor of pollution.
2. Scope and Requirements of the 1974
Feedlot Effluent Guidelines
This section provides a simplified
summary of the previous effluent
guidelines to provide context for today's
action. EPA uses the effluent guidelines
to establish national requirements
limiting discharges to waters of the
United States. EPA established the
effluent guidelines for feedlots in 1974
based on the best available technology
that was economically achievable for
the industry. The guidelines were
applicable to those facilities in specified
sectors (or subcategories) with as many
as or more than 1,000 AU that were to
be issued an NPDES permit. The 1974
effluent guidelines did not allow
discharges of pollutants from CAFOs
into the Nation's waters except when a
chronic or catastrophic storm caused an
overflow from a facility that had been
designed, constructed, and operated to
contain manure, process wastewater and
runoff resulting from a 25-year, 24-hour
storm. For permitted facilities where the
ELGs did not apply (those with fewer
than 1,000 AU), technology-based
discharge limits were established using
the permit writer's best professional
judgment.
C. USDA-EPA Unified National Strategy
for Animal Feeding Operations '
In! 1998, EPA and USDA jointly
developed a unified national strategy to
minimize the water quality and public
health impacts of AFOs. EPA and USDA
jointly published a draft Unified
National Strategy for Animal Feeding
Operations on September 21,1998.
After sponsoring and participating in 11
public listening sessions and
considering public comments on the
draft strategy, a final Unified National
Strategy for Animal Feeding Operations
was published on March 9,1999. A
copy of the Strategy is available on the
EPA and USDA web sites. The Unified
National Strategy for Animal Feeding
Operations established national goals
and'performance expectations for all
AFOs. The general goal is for AFO
owners and operators to take actions to
minimize water pollution from
confinement facilities and land where
manure is applied. To accomplish this
goal, the Strategy established a national
performance expectation that all AFOs
should develop and implement
technically sound, economically
feasible, and site-specific CNMPslto
minimize impacts on water quality and
public health.
The Unified National Strategy for
Animal Feeding Operations identified
sevejn strategic issues that should^be
addressed to better resolve concerns
associated with AFOs. These are (1)
fostering CNMP development and
implementation; (2) accelerating
voluntary, incentive-based programs; (3)
implementing and improving the;
existing regulatory program; (4)
coordinating research, technical
innovation, compliance assistance, and
technology transfer; (5) encouraging
industry leadership; (6) increasing .data .
coordination; and (7) establishing better
performance measures and greater
accountability. Today's action addresses
the third strategic issue— implementing
and 'improving the existing regulatory
program.
HI. How Was This Final Rule
Developed?
The preamble to the proposed rule
presented a detailed discussion of the
history of EPA actions addressing
CAFOs, including issuance of the
original NPDES CAFO regulations and
effluent limitations guidelines (ELGs)
for feedlots, development of the EPA/
State Feedlot Workgroup Report (1993),
outreach dialogues with representatives
of the pork industry and poultry
industry, EPA AFO strategy •
development, and collaboration with
USDA on the development of the
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7187
Unified National Strategy for Animal
Feeding Operations (66 FR 2965). The
discussion below briefly summarizes
the key events that have been part of the
process of preparing today's final rule.
A. Small Business Advocacy Review
(SBAR) Panel ;
To address small business concerns,
EPA's Small Business Advocacy
Chairperson convened a Small Business
Advocacy Review (SBAR) Panel under
section 609(b) of the Regulatory
Flexibility Act (RFA) as amended by the
Small Business Regulatory Enforcement
Fairness Act (SBREFA). Participants
included representatives of EPA, the
Small Business Administration [SBA)
and the Office of Management and
Budget (OMB). "Small Entity
Representatives" (SERs), who advised
the Panel, included small business
livestock and poultry producers as well
as representatives of the major
commodity and agricultural trade
associations. Information on the Panel's
proceedings and recommendations is in
the April 7, 2000, Final Report of the
Small Business Advocacy Review Panel
on EPA's Planned Proposed Rule on
National Pollutant Discharge
Elimination System (NPDES) and
Effluent Limitations Guideline (Effluent
Guidelines) Regulations for •
Concentrated Animal Feeding
Operations (hereinafter called the
"Panel Report'}, along with other
supporting documentation included as
part of the Panel process. The Panel
Report details the process that EPA
followed, provides meeting summaries,
and offers other information, including
the composition of both the panel and
the SERs.
The report also includes the Panel's
recommendations on specific issues
concerning the NPDES CAFO regulation
and ELGs. Key panel recommendations
were to: streamline reporting
requirements; minimize burden of any
required certifications and testing
requirements; and carefully weigh the
costs and benefits of removing the 25-
year, 24-hour storm exemption for
operations with less than 1,000 animal
units and of modifying the specific
criteria for defining medium-sized AFOs
as CAFOs. The entire SBAR report is
available in the administrative record
for this rulemaking, which is available
for public review.
B. Proposed Rule
On January 12, 2001, EPA published
a proposal to revise and update two
regulations to ensure that manure,
wastewater, and other process waters
generated by CAFOs do not impair
water quality (66 FR 2959). These two
regulations were (1) the NPDES
provisions that define which operations
are CAFOs and establish permit
requirements and (2) the ELGs, or
effluent guidelines, for feedlots (beef,
dairy, swine and poultry subcategories),
which establish the technology-based
effluent discharge standards for CAFOs.
Key proposed changes that would affect
the CAFO definition included options
for establishing either two or three size
categories of CAFOs, the thresholds for
different size operations defined as
CAFOs, criteria applicable to medium
operations, inclusion of dry chicken
operations that meet specified size
thresholds, and potential revisions to
the designation criteria and process. In
addition, the proposed rule also
presented options for co-permitting
entities that exercise substantial
operational control over a CAFO,
ensuring appropriate public
participation in permitting, and
encouraging proper management of
excess manure that is transferred off-
site. Key proposed changes to the ELGs
for feedlots included updating the
guidelines based on current practices
and technologies, the increased use of
BMPs, and application of technology
options to both the CAFO production
area and the land application area
(including nutrient management
planning).
C. 2001 Notice of Data Availability
On November 21, 2001, EPA
published a Notice of Data Availability
(hereinafter referred to as the "2001
Notice") that presented a summary of
new data and information submitted to
EPA during the public comment period
on the proposed CAFO regulations,
including data received from USDA (66
FR 58556). The notice had four main
components: (1) Discussion of new data
and changes EPA was considering,to
refine its cost and economics model; (2)
discussion of new data and changes
EPA was considering to refine its
nutrient loading and benefits analysis;
(3) new data and changes EPA was
considering to the proposed NPDES
permit program regulations; and (4) new
data and changes EPA was considering
to the proposed ELG regulations. EPA's
2001 Notice also discussed options that
the Agency was considering to enhance
flexibility for the use of State NPDES
and non-NPDES CAFO programs,
including implementation of
environmental management systems
(EMS).
D. 2002 Notice of Data Availability
On July 23, 2002, EPA published a
second Notice of Data Availability
(hereinafter referred to'as the "2002
Notice") that presented a summary of
new data and information submitted to
EPA during the public comment period
on the proposed CAFO regulations,
including data received,after
publication of the 2001 Notice. The
2002 Notice had three main
components: (1) A discussion of
alternative regulatory thresholds for
chicken operations using dry litter
management practices; (2) the potential
creation of alternative performance
standards to encourage CAFOs to
implement new technologies; and (3)
financial data and changes EPA was
considering to refine its economic
analysis models. The 2002 Notice made
these data and potential changes
available for public review and
comment.
E. Public Comments
A general summary of public
comments is included in the
discussions of the various issues
addressed in this preamble. EPA has
prepared a Comment Response
Document that includes responses to
comments submitted for the proposed
rule and both notices. All of the
comments including supporting
documents submitted on today's action
are available for public review in the
administrative record for this final rule
which is filed under docket number W—
00-27.
The proposed regulations were:
published in the Federal Register on
January 12, 2001 (66 FR 2959), and the
comment period closed on July 30,
2001. EPA received approximately
11,000 comments in total on the
proposed rule. EPA received comments
from a multitude of sources, including
private citizens, facility owners and
operators, environmental groups, local
and State agencies, members of the
academic community, banks and
insurance companies, congressional
representatives, and representatives
(including trade associations) from each
of the animal sectors (beef, dairy, swine,
poultry, horses, ducks, turkey, and
others). The comments are addressed in
the Comment Response Document
prepared by EPA in support of today's
final rule.
The comment period for the 2001
Notice was from November 21, 2001,
through January 15, 2002 (66 FR 58556).
Approximately 300 comments were
received on the 2001 Notice. Responses
to each of these comments are alsp
included in the Comment Response
Document.
EPA prepared and published in tb.e
Federal Register a second notice (2 002
Notice) during the development Q€
today's final rule. The comment period
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7188
for the 2002 Notices was from July 23,
2002, through August 22, 2002.
Approximately 150 comments were
received on the 2002 Notice. Responses
to each of these comments are also
included in the exponent Response
Document. \ . ,
In addition to the public comments
received on the proposal and the Jwo
Notices, approximately 200 additional
comments on the tjvo Notices were
received from various stakeholders.
Responses to each of these comments
are included in the Comment Response
Document. :
F. Public Outreach \
In support of both the proposed rule
and today's final rule, EPA has <.
conducted extensive outreach activities.
These activities are documented in the
administrative recojrd for the final rule,
which is available for public review
under docket number W-00-27. The
discussion that follows is focused on
'key outreach activities that EPA has
conducted. ' ;
I -
1. Pre-Proposal Activities
During the development of the '
proposed regulation's for CAFOs, EPA
met with many members of the ,
stakeholder community through
.meetings, conferences, and site visits.
EPA convened a SBAR Panel to address
small entity concerns, provided ;
outreach materials tip and met with
several national organizations '
representing State and local '.
governments, and conducted [
approximately 110 sjite visits to collect
information on waste management'
practices at livestock and poultry
operations. EPA also' established a
workgroup that included representatives
from USDA, seven States, EPA regions,
and EPA headquarters. More detailed
information on EPA's public outreach
efforts was published in section XII of
the Federal Register {notice for the <
proposed rule (66 FR 3120). '
2. Post-Proposal Activities ' ;
a. Public meetings\and stakeholder
outreach. Following publication of the
proposed rulemaking, EPA conducted
nine public outreachjmeetings on the
proposed CAFO regulations. In
addition, EPA continued to meet with
representatives of various stakeholder
groups, including representatives from
various industry tradfe associations and
environmental groups, as well as i
researchers from select land grant
universities and research organizations.
The land grant university staff consulted
on this rulemaking included researchers
at the Food and Agricultural Policy
Research Institute (F^RI) at the
Register/VoI. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
University of Missouri and researchers
at The National Center for Manure and
Animal Waste Management, composed
of researchers from 16 land grant
universities supported by USDA-
Cooperative State Research, Education
and Extension Service (CSREES). EPA
has also consulted with State and local
governments'and several national
associations representing State.
governments. A more detailed account
of these efforts is provided in the 2001
Notice (66 FR 58557-58558).
b. USDA-EPA Workgroup meetings
In April 2001 USDA initiated a process
to review the proposed revisions to
EPA's CAFO rule and identify issues
and concerns posed by the rule. USDA
identified 15 specific areas of concern
and a number of overarching issues. As
a follow-up to this process, USDA and
EPA's Office of Water initiated monthly
meetings on issues of significance for
agriculture and the environment,
specifically water quality. The goal was
to foster greater communication
between the two agencies to provide
better information to the public and
policy makers on areas of mutual
concern related to agriculture and water
quality, and to facilitate informed
decisions on approaches and needs to
address the key agriculture and
environment issues. In July 2001 EPA
and USDA convened a joint workgroup
to address the issues identified by the
two agencies and begin to develop
options for EPA leadership to consider
in developing the final rule. The
collaboration fostered increased
understanding on the part of both
agencies with respect to the issues, data,
and analyses used to finalize today's
CAFO rule.
c. Other outreach activities. As part of
the development of this rulemaking,
EPA used several additional means to
provide outreach to stakeholders. Most
notably, EPA has managed a number of
Web sites that post information related
to these regulations. Supporting
documents for the proposed rule were
posted to these .sites, including the
Technical Development Document,
Economic Analysis, Environmental
Assessment, Environmental and
Economic Benefit Analysis of the
proposed CAFO regulations, and cost
methodology reports and guidance
related to Permit Nutrient Plans. These
are available at http://www.epa.gov/
guide/cafo/. Other outreach materials
are available at http://www.epa.gov/
npdes/caforule and include brochures
describing the proposed CAFO
regulations, a compendium of AFO-
related State program information, and
various materials related to permitting
issues to facilitate an understanding of
the NPDES program and development of
comments on the proposed rule by the
public. •
IV. CjAFO Roles and Responsibilities
A. Who Is Affected by This Rule?
1, What Is an AFO?
In today's final rule, EPA is retaining
the definition of an animal feeding
operation (AFO) as it was defined in the
1976 regulation at 40 CFR 122.23(b)(l).
An animal feeding operation means a lot
or facility (other than an aquatic animal
production facility) where the following
conditions are met: (1) Animals have
been, jare, or will be stabled or confined
and fed or maintained for a total of 45
days or more in any 12-month period,
and (2) crops, vegetation, forage growth,
or po^t-harvest residues are not
sustained in the normal growing season
over any portion of the lot or facility.
(Note:,EPA is making a typographical
correction to the AFO definition. The
comma between vegetation and forage
growth had been inadvertently dropped
from the 1976 final rule in subsequent
printings of the Federal Register).
What did EPA propose? In the January
12, 2001, proposed rule, the Agency
proposed to change die definition of an
AFO, intending to eliminate ambiguities
about which facilities and operations
would ibe defined as AFOs in certain
circumstances where the animals strip
the ground of vegetation. The proposal
stated that"* * * Animals are not
considered to be stabled or confined
when they are in areas such as pastures
or rangeland that sustain crops or forage
growth] during the entire time that
animals are present * * *."
What were the key comments? While
it was EPA's intent to clarify the
existing AFO definition, the proposed
new regulatory language created
substantial confusion. For example,
many cpmmenters from the beef cattle
industry and others strongly believed
that the! proposed language would
include1 pastures, rangeland, and '
unconfined wintering operations as
AFOs and, in essence, would bring the
entire beef industry under the
regulations, none of which was
intended. These commenters strongly
recommended that the existing
regulations should be kept intact to
avoid new ambiguity. The view of
commenters from the dairy sector and
the Sustainable Agriculture Coalition
was that the exclusion of pastureland
and rangeland from the AFO definition
was cleajr in the proposed rule and they
found the proposed language
acceptable. Other livestock sectors and
environmental groups generally did not
comment extensively on this issue.
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Federal Register/Vol. 68, No. 29 / Wednesday, February 12. 2003/Rules and Regulations 7189
Rationale. Based on public comment
and further consideration, EPA
concludes that the proposal to revise the
AFO definition to exclude areas "that
sustain crops or forage growth during
the entire time that animals are present"
created further concern and confusion,
rather than clarification. EPA's intent
was to make a minor change to the AFO
definition to clarify how it would apply
to wintering/grazing operations and to
incidental vegetation that may exist in
the area of confinement. EPA is
retaining the existing definition for
animal feeding operation because of the
widespread familiarity that exists with
the existing definition and because
EPA's desired clarification can be
achieved through preamble language
rather than a change to the rule.
In an attempt to address some of the
public comments and confusion, created
by the proposal, EPA is clarifying three
topics in this preamble. First, EPA is
reiterating that true pasture and
rangeland operations are not considered
AFOs, because operations are not AFOs
where the animals are in areas such as
pastures, croplands or rangelands that
sustain crops or forage growth during
the normal growing season. In some
Easture based operations, animals may
:eely wander in and out of particular
areas for food or shelter; this is not
considered confinement. However,
pasture and grazing-based operations
may also have confinement areas (e.g.
feedlots, barns, pens) that may qualify
as an AFO. Second, incidental
vegetation in a clear area of
confinement, such as a feedlot or pen,
would not exclude an operation from
meeting the definition of an AFO. Third,
in the case of a winter feedlot, the "no
vegetation" criterion in the AFO
definition is meant to be evaluated
during the winter, when the animals are
confined. Therefore, use of a winter
feedlot to grow crops or other vegetation
during periods of the year when animals
are not confined would not exclude the
feedlot from meeting the definition of an
AFO. Note that animals must be stabled
or confined for at least 45 days out of
any 12 month period to qualify the
operation as an AFO. EPA assumes that
AFOs and permitting authorities will
use common sense and sound
judgement in applying this definition.
2. What Is a CAFO?
In today's final rule, EPA is retaining
the existing structure for determining
which AFOs are CAFOs, as well as
retaining the existing conditions for
defining Medium CAFOs. EPA is also
retaining the existing conditions for
designation of AFOs as CAFOs. Large
facilities are considered CAFOs if they
fall within the size range provided in
§ 123.23(b)(4). Medium AFOs are
defined as CAFOs only if they fall
within the size range provided in
§ 122.23(b)(6) and they meet one of the
two specific criteria governing the
method of discharge: (1) Pollutants are
discharged into waters of the United
States through a man-made ditch,
flushing system, or other similar man-
made device; or (2) pollutants are
discharged directly into waters of the
United States that originate outside the
facility and pass over, across, or through
the facility or otherwise come into
direct contact with the confined
animals. Small facilities are CAFOs only
if they are so designated by EPA or the
State NPDES permitting authority. Refer
to Table 4.1 in section IV. A. 3 of this
preamble for explicit definitions of
Large, Medium, and Small CAFOs in
each animal sector. Also, as proposed,
EPA is no longer using the term "animal
units" to define size classes in this final
rule. Instead, EPA is setting thresholds
by specifying the actual number of
animals. EPA believes that using the
number of animals at an operation to
define thresholds more simply
illustrates which operations are
regulated. Using the number of animals
also eliminates any confusion caused by
the difference between EPA's and
USDA's definitions of the term "animal
unit."
What did EPA propose? EPA co-
proposed two alternative ways to
structure the NPDES regulations for
defining which AFOs are CAFOs. The
first alternative was a "two-tier
structure," and the second was a "three-
tier structure." In the first alternative,
EPA proposed that all AFOs with the
equivalent of 500 animal units or more
would be defined as CAFOs, and those
with fewer than the equivalent of 500
animal units would be CAFOs only if
they are designated as such by EPA or
the State NPDES permitting authority.
In the second alternative, EPA proposed
to retain a three-tier structure whereby
all large operations are CAFOs, medium
operations are CAFOs if they meet
specified risk-of-discharge criteria, and
small operations are CAFOs only if they
are so designated by EPA or the State
NPDES permitting authority. EPA also
proposed to significantly revise the
conditions whereby a medium AFO
could be defined as a CAFO. Finally,
EPA proposed to require all medium
AFOs to certify to the permitting
authority that they do not meet any of
the conditions for being defined a
CAFO.
What were the key comments? The
predominance of public comment did
not support the two-tier structure, as
proposed, whereby all operations with
the equivalent of 500 animal units or
more would be CAFOs. Many
commenters opposed such a low
threshold as imposing unnecessary
permitting and engineering costs on
small operations and on operations that
do not discharge, and would very likely
cause many small operators to go out of
business. Opponents also indicated that
the proposal did not recognize
geographic differences such as arid
regions. Many of those same comments
were, however, supportive of a two-tier
structure if the regulatory threshold was
set at the equivalent of 1,000 animal
units or even 750 animal units, leaving
discretion for the permitting authority to
address all operations below that.
threshold. Conversely, some
commenters indicated that 500 animal
units was too high, because it did not
address the pollution from smaller
operations in their region. There was
some preference for a two-tier structure
that regulates all facilities above the
equivalent of 300 AU, believing that all
those operations pose risk to the
environment and should be regulated as
CAFOs.
Many commenters, including many
State agencies, preferred to retain the
existing three-tier structure because so
many of their existing programs are
based on the three-tier structure ,
established in the 1976 regulations.
They believe it would be very disruptive
to their ongoing programs to have to
change the basic structure of the
regulations that define who is a CAFO.
Additionally, there was little support
among the commenters for the three-tier
structure, as proposed, with the new set
of broad conditions that were proposed
for redefining which of the medium
facilities would be CAFOs. Many
commenters believed that the existing
conditions were adequate for addressing
risk of discharge from medium facilities,
and that the proposed new conditions
would be an unnecessary expansion of
who would be considered CAFOs.
Further, many commenters indicated
that the revised conditions did not add
clarity and would not improve
implementation. For example, many
commenters indicated that one of the
proposed conditions, whether an AFO
was within 100 feet of waters of the
United States, did not take into account
facilities that are implementing BMPs to
control runoff. The condition for
evidence of discharge in the last five
years did not take into account
operations that may have instituted new
practices or corrected problems to
prevent future discharges, especially in
light of the fact that, in the last two or
three years, there has been heightened
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awareness of the impacts of AFOs and
renewed effort by States to implement
both regulatory and non-regulatory AFO
programs. The condition defining a
facility as a CAPO if it transferred
excess manure to off-site recipients also
did not correlate closely enough to
whether a facility hjad a risk of ,
discharging, especially in arid regions.
The SBAR Panel did not make a
recommendation specifically on the
structure of the CAFO regulations. The
Panel noted that some States already
have .effective permitting programs for
CAFOs in place and recommended that
EPA consider the impact of any new
requirements on existing State programs
and include in the proposed rule
sufficient flexibility! to accommodate
such programs where they meet the
minimum requirements of federal ';
NPDES regulations. [The Panel further
recommended that EPA continue to
consult with States ijn an effort to
promote compatibility between federal
and State programs, j
Rationale. The Clean Water Act
specifically lists CAFOs as point
sources, and EPA haSs broad discretion
under the Act to define that term. In the
proposal, EPA noted' a range of different
factors that it considered relevant to
determining which Operations should be
defined as CAFOs. ! :
EPA has concluded that a three-tier
structure is preferable to a two-tier
structure because it is better suited to
identifying those operations that,
through a combination of size, '
concentration and potential to
discharge, are more industrial and point
source-like in nature and pose the
greatest risk to water quality and ',
therefore are appropriate to define as
CAFOs. Another important reason to
retain a three-tier structure is that >
changing to a two-tie j structure at this
point in time would be unnecessarily
disruptive in the number of States that
currently have three-tier CAFO
programs in place. Many of these States
have had these programs in place for
over two decades, and they have many
years of practical experience in
operating their progranis and issuing
permits based on this existing
definition. Changing to a two-tier
structure not only would be disruptive
to the States that are carrying out
existing programs but] would also create
an unnecessary need to build a new'
understanding of the Regulations in the
CAFO industry. For these reasons, a I
three-tier structure is preferable even
though it does not ha\te the simplicity
of a two-tier structure.' '
Establishing a two-tier structure at a
low threshold, e.g., atleither 300 animal
units or 500 animal units would be
highly burdensome to permit authorities
and AFO operators. While some parts of
the country experience problems from
concentrations of small facilities, this
would impose significant costs on the
regulated community and permit
authorities in all parts of the country,
including those areas that do not
experience these problems. On the other
hand, while it might seem desirable to
provide flexibility for States with
effective non-NPDES programs by
establishing a threshold on the higher
end, say at 750 or 1,000 animal units,
using such a high threshold across-the-
board would apply equally in States that
do not have fully developed and
effective programs to address water
quality risks posed by operations with
fewer than 1,000 animal units. This
could lead to a definition that would not
appropriately identify those operations
that are large and concentrated enough
and pose enough of a risk of discharge
(taking into account the absence of
effective State non-NPDES programs in
some areas) that they should be
identified as CAFOs. A high threshold
might also undercut the ability of some
permit authorities to address water
quality problems associated with
smaller facilities, especially in States
that have restrictions on imposing
CAFO NPDES requirements that are
stricter than federal requirements.
Although the final rule retains the
three-tier structure for defining who is
a CAFO, after consideration of the
public comments, EPA has not adopted
the new set of conditions that were
proposed for defining which medium
operations are CAFOs. Instead, EPA is
retaining the two conditions in the
existing regulations. After careful
consideration of the comments, EPA
agrees with those commenters who
believe that the new set of conditions
proposed under the three-tier structure
for determining'when a medium facility
is a CAFO would not necessarily have
essentially all operations above 300
animal units.
For pxample, many commenters
indicated that one of the proposed
conditions, whether an AFO was within
100 feet of waters of the Unites States,
did nojt take into account facilities that
are implementing BMPs to control
runoff; The condition for evidence of
discharge in the last five years did not
take into account operations that may
have instituted new practices or
corrected problems to prevent future
discharges, especially in light of the fact
that, in the last two or three years;, there
has been heightened awareness of the
impacts of AFOs and renewed effort by
States to implement both regulatory and
non-regulatory AFO programs. The
conditions defining a facility as a'CAFO
if it did not have a permit nutrient plan
or if it transferred excess manure to off-
site recipients also did not correlate
closely enough to whether a facility had
a risk of discharging, especially in arid
regions.
EPA has concluded that retaining the
existing two criteria provide an
appropriate basis for defining which
medium-size operations are CAFOs,
while maintaining flexibility for States
to tailor NPDES and non-NPDES
programs for more comprehensive risk
factors that may vary from State to State
and even watershed to watershed.
3. What Types of Animals Are Covered
by Today's Rule?
—- *•««.*«. AA«JI. -uujvjcfoocu. iiy HcLvc
improved the clarity, effectiveness or
enforceability of the regulations, which
were the Agency's intended goals. The
proposed new conditions were an
attempt to better identify those medium
operations that are of sufficient size and
concentration and pose enough of a risk
of discharge that they should be defined
as CAFOs. While these conditions may
have been environmentally protective
on the whole, they were not finely
targeted enough to identify the
operations that meet these criteria;
instead, EPA now believes that they
would have caused substantial
permitting burden and imposed costs on
Today's revisions to the CAFO
effluent' guidelines address beef, dairy,
swine, veal calves and poultry
operations and do not change the:
effluentjguidelines regulations for
sheep, Corses or ducks. On the other
hand, tdday's final revisions to the
NPDES permit regulations generally
apply to! all CAFOs regardless of
species, jand specifically address the
size thresholds for defining which beef,
dairy, s-tyine, veal calves, poultry, sheep,
horses, and duck operations are CAFOs.
The following sections discuss changes
made tojthe size thresholds for defining
which operations in these sectors are
CAFOs.! ;
Although the following discussion
focuses primarily on circumstances
where an AFO is defined as a CAFO, it
is important to note that small and
mediumfsize AFOs can be designated as
CAFOs by EPA or an NPDES authorized
State. Refer to section rV.A.7 and & for
a discussion of designation.
The thresholds for defining Large,
Medium,iand Sma11 CAFOs in each
sector are summarized in Table 4.1
below, j
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7191
TABLE 4.1.—SUMMARY OF CAFO SIZE THRESHOLDS FOR ALL SECTORS
Sector
Laying hens or broilers (liquid manure handling sys-
tem).
manure handling system).
tern).
Ducks (liquid manure handling system)
Large
1 000 or more
700 or more
1 000 or more
2 500 or more
10,000 or more
500 or more
10 000 or more
55,000 or more
5,000 or more
Medium 1
300-999
200-699
300 999
750-2,499
3,000-9,999
150-499
3,000-9,999
16,500-54,999
9 000-29 999
37,500-124,999
25,000-81,999
10,000-29,999
1,500-4,999
Small 2
Less than 300.
Less than 200.
Less than 300.
Less than 750.
Less than 3,000.
Less than 150
Less than 3,000.
Less than 16,500.
Less than 9,000.
Less than 37,500.
Less than 25,000.
Less than 10,000.
Less than 1,500.
1 Must also meet one of two "method of discharge" criteria to be defined as a CAFO or may be designated.
2 Never a CAFO by regulatory definition, but may be designated as a CAFO on a case-by-case basis.
A facility confining any other animal
type that is not explicitly mentioned in'
the NPDES and effluent guidelines
regulations is still subject to NPDES
permitting requirements if it meets the
definition of an AFO and if the
permitting authority designates it as a
CAFO. See § 122.23(c) for a discussion
of designation.
a. Chickens. In today's action, EPA is
revising the CAFO definition to include
chicken operations that use manure
handling systems other than liquid
manure handling systems (see 40 CFR
Part 122, Appendix B of the 1976
regulation). EPA has also eliminated the
condition for continuous overflow
watering system from the CAFO
definition. This action establishes that
dry litter chicken operations of specified
sizes will need to seek coverage under
an NPDES CAFO permit. EPA is
establishing size thresholds for dry
chicken operations based on the .
phosphorus content of the manure, and
is therefore distinguishing between
broiler and layer operations. EPAiis not
changing the existing threshold for
chicken operations using liquid manure
systems. The size thresholds for large,
medium, and small chicken operations
under today's regulations are as follows:
handling).
Laying hens or broilers (liquid manure handling)
Large
125 000 or more
82 000 or more
30,000 or more
Medium
37,500-124,999
25,000-81,999
9,000-29,999
Small
<37,500
<25,000
< 9,000
What did EPA propose? EPA
proposed to regulate chicken operations
regardless of the type of manure
handling or watering system used. EPA
proposed to include broilers and layers
in a single category with one threshold
number. Under the co-proposed three-
tier structure, EPA proposed to adopt a
Large CAFO threshold of 100,000
chickens and a Medium CAFO
threshold of 30,000 chickens. In the co-
proposed two-tier structure, the
regulatory threshold would have been
50,000 chickens. Subsequently, EPA
published a notice of data availability
(FR 67, 48099, July 23, 2002) in which
the Agency considered whether, under
a three-tier structure, the threshold for
large broiler operations should remain
as proposed at 100,000 broilers, changed
to 125,000 broilers, or established at
some other threshold. EPA also
considered whether the large threshold
for laying hens should remain as
proposed at 100,000 laying hens, or be
changed to 82,000 laying hens. EPA also
noted that the thresholds in the~1976
CAFO regulations for chicken
operations with liquid manure handling
systems or continuous overflow
watering systems may remain
unchanged in the final rule.
What were the key comments?
Comments from poultry industry
representatives and owners and
operators of poultry operations stated
that dry operations (those not using
continuous flow watering systems)
should not be defined as CAFOs under
the NPDES regulations because the
absence of water or other liquids would
not result in pollutants being discharged
through a discrete point source. Some
industry representatives asserted that
dry and wet manure handling pose
different levels of risk and, therefore, _
EPA's CAFO regulations should
distinguish between wet and dry
poultry operations. A few commenters
indicated that they felt that EPA was
proposing to regulate dry poultry
operations to address insufficient
storage issues at some operations. These
commenters believed that properly
stored poultry litter would not result in
a discharge. In addition some
commenters disagreed with EPA's
statement that many poultry operations
did not have sufficient land to apply
litter at agronomic rates. Commenters
from this sector also felt that voluntary
programs were working to address the
excess manure issue, A more limited
number of commenters indicated that
the inclusion of dry poultry operations
should be limited to what they
described as very large operations.
Commenters defined very large as
ranging from more than six house's to
more than 10,000 animal units (e.g.,
300,000 birds).
Many other commenters supported
"regulating poultry operations regardless
of the watering systems they use
because that approach provides equity
across all animal sectors and addresses
potential risk to water quality posed by
dry operations. Some commenters
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further stated that EPA should use
manure phosphoriis as the basis for
setting thresholds for such operations.
Rationale. Why is EPA including
chicken operations, with dry manure
and litter handling systems in today's
regulations? For soine time, poultry
operators have been replacing
continuous overflojiv watering sys.tems
by more efficient water conserving
methods (e.g., on-demand watering).
Given this trend, liquid manure systems
are used at approximately 25 percent of
layer operations and are not generally
used at broiler operations. As a result,
most chicken operations are not covered
by the existing regulations.
For the reasons articulated in thje
proposed rulemaking (66 FR 3010), and
after carefully reviewing the public
comments, EPA has determined that
including chicken operations with dry
manure handling systems is justified to
protect water quality. EPA believes that
dry poultry operations continue tq
contaminate surface water and ground
water because of rainfall coming in
contact with dry manure and litter that
is stacked in exposed areas; accidental
spills such as from egg-wash facilities
and drinking water ^ines; improper
handling of large mjmbers of ;
mortalities; and improper land
application of litter j In addition,
included within the! coverage of the
CAFO regulations are other sectors that
use dry technologies, such as ducks,
turkeys, and certain! swine, beef, and
dairy operations usijng total confinement
housing. Inclusion of dry poultry
operations is consistent with the
regulation of both wjet and dry ;
operations within these other animal
sectors. I . - ;
Why were the size, thresholds
selected? EPA believes that it is ',
appropriate to distinguish between
potential risk of discharge posed by wet
versus dry handling systems, using the
pollutant of most concern, i.e.
phosphorus, for establishing regulatory
, thresholds. For nitrogen and BOD, the
levels for broilers would result in
similar thresholds varying only by 1%
to 3%. EPA agrees w|ith commenters
who asserted that ElfA should
determine the chicken threshold values
by evaluating phosphorus content in the
manure on an annual basis, which takes
into account that phosphorus
production does not (continue during the
periods of the year when no manure is
generated (i.e., clean!out time between
flocks when no broilers are present).
Traditionally, layers were kept through
one year of egg production and sold for
meat at 18 to 20 months of age (see \
Section 4 of the Technical Development
Document}. Depending on the relative
, price of eggs to hens, it has become
increasingly common to recycle layers
through more than one year of
production. Flock recycling consists of
stopping the flock's egg production,
allowing a suitable rest period, and then
bringing the flock back into production.
The entire process is known as "force-
molting". Some producers now keep the
birds through two or three complete
cycles of egg production. Laying hens
are now typically kept for 94 weeks of
production. Since layers will continue
to produce manure throughout the year
the daily phosphorus levels were used
in setting thresholds for laying hens.
Therefore, EPA is establishing different
thresholds based first on wet versus dry
manure systems and second on the
broad type of poultry, e.g., chickens for
meat (broilers) and chickens for eggs
(layers) based on phosphorus content of
manure generation.
b. Swine Nurseries and Heifer
Operations. Today's rule regulates
swine nurseries and heifer operations
that are defined as CAFOs. Specifically,
the Agency has adopted a Large CAFO
threshold of 10,000 or more immature
swine (i.e. weighing less than 55
pounds) and a Medium CAFO threshold
of 3,000 to 9,999 immature swine. For
heifers, EPA has adopted a Large CAFO
threshold of 1,000 head or more and a
Medium CAFO threshold of 300 to 999
head.
What did EPA propose? EPA is
adopting what was proposed for these
animal types in a three-tier structure.
What were the key comments? While
a majority of commenters supported the
inclusion of immature swine and dairy
cattle in the proposed rule, a number of
commenters opposed this change, and
preferred to retain the exemption for
immature animals. A number of
commenters noted that many States
already have programs at least as strict
as the one EPA is proposing, and that
States should be allowed the flexibility
to determine if including operations
with immature animals would improve
water quality.
Rationale. Immature swine were not a
concern in the past because they were
usually part of operations that included
mature animals and, therefore, their
manure was included in the permit
requirements of the CAFO. However, in
recent years, these swine operations
have become increasingly specialized,
increasing the number of large, separate
nurseries where only immature swine
are raised.
Under the three-phase production
pyramids used by most large swine
operations, specialized farrowing
operations that house only sows and
piglets until weaned represent the first
phase| of raising swine. The weaned
piglets are transferred to a nursery at a
separate location until they reach about
55 to po pounds, at which time they are
transferred to a grow-finish facility at
another site. EPA's thresholds for swine
weighing less than 55 Ibs were
established on the basis of the average
phosphorus excreted from immature
swine; in comparison to the average
phosphorus 'excreted from swine '
weighing more than 55 pounds. (Refer
to the ^Technical Development
Document for more details).
For 'dairies, immature heifers are often
removpd to a separate location until
they reach maturity. EPA data indicate
that some of these animals are confined,
some are pastured, and some move back
and forth between confinement and
pasture. The previous CAFO definition
considered only the mature milking
cows ijn determining whether an
operation was a CAFO and did not
address operations that separately
confine immature heifers. EPA believes
that these separately confined heifer
operations should be included in-the
regulatory-definition of a CAFO because
they may generate as much manure as
a CAFp dairy given that the animals are
maintained until fully grown, and they
confine the animals in a manner very
similar to CAFO beef feedlots.
EPAiagrees that the number of
immature animals kept in confinement
with mature animals varies greatly and
should not be the basis for determining
whether an AFO is a CAFO. In
situations where immature animals (e.g.
heifers and swine) are confined with
mature animals, the immature animals
. are not! counted for purposes of
determining whether an AFO is defined
as a CAFO based on the number of
mature; animals. Once an AFO is :
defined as a CAFO, based on any 'of the
threshold values provided in table 4.1,
manure and process wastewater
generated by all immature and mature
animals in confinement would be
subjectjto NPDES permit requirements.
c. Horses. Today's rule retains the
animal jnumber thresholds for defining
which horse operations are CAFOs.
AFOs with 500 or more horses are
defined as Large CAFOs, AFOs with 150
to 499 horses are defined as Medium
CAFOs lunder certain conditions (see
§ 122.23(b)(7)), and AFOs with fewer
than 150 horses are Small CAFOs! only
if designated in accordance with
§122.23(c).
What' did EPA propose? In the
January, 2001 proposed rule, EPA did
not consider changing the CAFO
definition thresholds for horses. As a
result of the comments and data
received on the proposal, EPA
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Federal Register/Vol. 68, No. 29 / Wednesday, February 12, 2003/Rules and Regulations 7193
considered in a subsequent Notice of
Data Availability (66 FR 58556,
November 21, 2001) two alternative
options for revising the horse
thresholds. One option would retain the
existing regulatory threshold in a two-
tier structure. For example, if the
regulatory threshold was dropped to 500
AU, EPA would retain 500 horses as the
500 AU equivalent, and those with
fewer than 500 horses would be CAFOs
only if so designated on a case-by-case
basis. EPA suggested this option
because the Agency agreed with
commenters that there was no need to
increase regulation of this sector; by
maintaining the status quo EPA would
be neither increasing nor decreasing the
regulated universe. In the second
option, EPA would have set one horse
equal to one beef cow thereby establish
regulatory thresholds similar to those
for beef operations. As a result, in a
three-tier structure, Large horse CAFOs
would have 1,000 animals or more, and
Medium horse CAFOs would have 300-
999 horses. EPA presented the second
option after examining data submitted
by industry that suggested that a 1,000
pound horse may generate similar
manure as a 1,000 pound beef cow.
However, because that data did not
differentiate thoroughbred race horses
(typically on high-energy feed which
might alter manure composition) from
other horses, EPA requested more
definitive data to justify the second
approach.
What were the key comments? A
number of comments were submitted by
horse industry associations and
individual horse operations requesting
that EPA not lower the threshold for
horses, as the existing regulation was
adequate. They further suggested that
this rulemaking would be an
opportunity to revisit the basis for the
existing threshold, and requested that
EPA change it to one horse being equal
to one beef cattle, asserting that there is
no scientific basis for making one horse
equal to two beef cattle (which is how
the existing regulation defines horse
CAFOs). Industry representatives
provided data on manure content to
support their position, although they
did not provide manure data specific to
racehorses. The commenters also
explained that the horse industry is
fundamentally different in how it is
organized and operated from the other
sectors that focus on food production,
and that this sector has not seen the
kinds of changes (e.g., expansion and
consolidation) that EPA is seeking to
address in today's rule. Further, they
point out that most large racetracks are
in urban areas and are currently subject
to a variety of EPA-initiated and State-
administered programs related to water
pollution and storm water runoff
control.
Some commenters requested that EPA
not reduce the regulatory thresholds,
and asked EPA to retain the ability of
permit writers to use BPJ to establish
site-specific BMPs. Industry
representatives also asked die Agency to
clarify that confinement pertains to
stalls or similar structures in buildings
and not to fenced areas, and that it does
not include short visits to stalls for
shoeing, veterinary evaluation, or
related activities.
Rationale. It should be noted that the .
.thresholds for the CAFO definition refer
only to horse operations where animals
are confined for 45 days (non-
consecutive) over a 12 month period.
Thus, to be considered a Large CAFO,
the operation would need to confine 500
horses at one time for 45 days or longer
in a 12-month period, and to be a
Medium CAFO at least 150 horses
would need to be confined for 45 days
or longer in a 12-month period. The
areas associated with confinement at
horse facilities would constitute the
production area, and would not include
pastures and other unconfined areas.
EPA notes the 1974 ELG for horses
assumed the majority of horse CAFOs
were racetracks. Although race tracks
accounted for less than 0.1 percent of all
horse operations today, race tracks still
account for more than 96% of all horse
operations with 500 horses or more.
Boarding/training stables comprise the
remaining few operations with 500
horses or more. Such operations would
not be considered CAFOs unless all of
the horses were kept in confinement (as
opposed to pasture). Data suggests most
horse operations confine their animals
for short-term stabling or visits to stalls
for shoeing, veterinary evaluation, or
related activities. However, according to
consultations with the American Horse
Council, it is unlikely that these visits
would involve a number of horses large
enough to define the operation as a
CAFO. For example, a ranch
maintaining over 500 horses would
typically have fewer than 100 stalls or
stables (i.e. confinement areas).
Therefore, those operations that confine
enough horses for a long enough period
to be defined as CAFOs are generally
racetracks.
In the 1970s regulations, the Agency
considered racetracks when originally
determining the size of an operation that
must comply with the effluent
guidelines, and the records indicate the
size of operation was based on the
manure generated by thoroughbred
racehorses. Based on some comments
that EPA should re-evaluate the
classification of horses by bodyweight
or manure content, EPA collected more
current manure characteristics data from
ASAE, USDA, and based on this data
presented alternative thresholds for
horses in the 2001 NODA (see 66 FR
225, page 58595). After reviewing the
data, EPA generally agrees that the
phosphorus content of horse manure is
similar to that of a beef cow. However,
as described above, the majority of horse
CAFOs are racetracks, and the more
general data on recreational and work
horses is not comparable. The Agency
also reviewed the data submitted by
horse industry representatives and
determined that this data also did not
distinguish manure generated by
racehorses with that of a recreational or
farm horse, and thus EPA does not
believe the record is sufficient to justify
a change to the existing regulatory
thresholds.
The effluent guideline, which is not
being changed in today's final
rulemaking, continues to be applicable
to those horse operations confining 500
horses or more, including stables such
as at racetrack operations. Other horse
operations that may be defined or
designated as CAFOs would continue to
follow permit requirements based on the
BPJ of the permitting authority.
a. Ducks. Today's final rulemaking
revises the thresholds for defining
whether a duck operation is a CAFO.
The following thresholds apply to duck
operations where the AFO uses other
than a liquid manure handling system
("dry systems"): 30,000 or more ducks
for a Large CAFO and 10,000 to 29,999
ducks for a Medium CAFO. For small
operations with fewer than 10,000
ducks, EPA or the State permitting
authority may designate them as a
CAFO. For operations where the AFO
uses a liquid manure handling system
("wet systems"), EPA is retaining the
existing thresholds. That is, those with
5,000 or more ducks are considered
Large CAFOs; those with 1,500 to;4,999
ducks may be Medium CAFOs (if the
other conditions are met); and small
operations with fewer than 1,500 ducks
would become CAFOs only if
designated in accordance with
§122.23(c).
What did EPA propose? In the
January, 2001 proposed rule, EPA did
not consider changing the existing
animal unit equivalents for ducks,. As a
result of comments received on the
proposal, EPA considered in a
subsequent 2001 Notice of Data
Availability (NODA) (66 FR 58566,
November 21, 2001) two alternative
options for establishing thresholds for
duck operations. One option would treat
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dry systems similarly to chicken
operations (e.g., at the time of the
NODA, EPA was considering 100,000
ducks would have constituted a Large
CAFO). Another option would establish
a Large CAFO threshold of 30,000 ducks
based on the quantity and content of
duck manure, using data and ;
recommendations supplied by Purdue
University. In all cases, the threshold for
Large CAFOs with wet systems would
remain at 5,000 ducks.
What were the key Comments? A
number of commentejrs on both the
proposal and the NODA from duck
industry associations! individual duck
operations and some States requested
that EPA change the threshold in the
CAFO definition for ducks. They urged
EPA to consider revising the duck '
thresholds to a higher number. By •
retaining the 5,000 duck threshold, they
noted, essentially all duck operations in
the United States woiild be required; to
apply for an NPDES permit. ',
Commenters noted thkt management
practices have changed significantly
since the 5,000 duck threshold was \
established. The management practices
currently used to raise ducks are similar
to chicken operations: Commenters ,
claim that these dry facilities should be
regulated like chicken operations, .
basing the threshold either on
phosphorus manure levels or using a
threshold similar to chickens. State •
Commenters agree that the threshold for
these types of facilities should be raised
but suggest retaining the existing
threshold for wet systems.
Rationale. The existing NPDES •
regulation and the effluent guideline
make no distinction between dry and
wet systems. The ducli thresholds were
originally established in the 1970s arid
were based primarily on ducks being1
raised outside on ponds or with a
stream running through an open lot.
These types of facilitids have been '-
referred to as "wet" loi operations.
Today's regulation refers to them as ;
AFOs that use liquid manure handlirig
systems. This preamblb also refers to'
them as "wet systems. ' For purposes of
today's rulemaking, these include dupk
operations that use ponds, wet lots, or
buildings with lagoons.
EPA agrees with commenters that the
management practices more typically
used today to raise ducks are similar to
chicken operations where the birds are
confined to a building Jon solid bedding
or in a building with a concrete pit
underneath it where manure collects.
These types of facilities have been
referred to as "dry lot" operations.
Where these practices are utilized, and
are not combined withjliquid manure,
handling systems, such as lagoons, they
present much less risk of a discharge
than do wet systems. Today's regulation
refers to them as AFOs that use "otiaer
than liquid manure handling systems."
This preamble also refers to them as
"dry systems."'
After examining information
concerning the current technologies of
the duck industry, EPA concurs that it
is appropriate to adjust the regulatory
thresholds for dry systems, while
retaining the existing threshold for wet
systems. EPA is setting the Large CAFO
threshold for duck operations with dry
systems at 30,000 birds or more based
on data produced by Purdue University
and the American Society of Agriculture
Engineers (ASAE), which are available
in the administrative record. This
threshold was calculated using
phosphorus manure levels and
assuming an approximate 3 duck to 1
chicken ratio. The medium size
threshold is 10,000 to 29,999 ducks and
the small threshold is less than 10,000
ducks. These thresholds were set at
these levels based on the same 3 duck
to 1 chicken ratio. Data on both layer
and broiler chickens were averaged to
obtain this ratio. This threshold is
generally consistent with the thresholds
adopted in current State programs,
especially Indiana where the majority of
the duck operations are located. This
decision is also consistent with today's
final decision on the chicken threshold,
where EPA has established higher
thresholds for layer operations using
other than liquid manure handling
systems than for layer operations using
liquid manure handling systems.
e. Cow/Calf. In today's final rule, a
beef cow/calf pair counts as one animal
when temporarily confined in a pen, lot,
barn, or stable. However, a cow/calf pair
counts as two animals after the offspring
are weaned.,
What did EPA propose? The proposed
rule did not discuss a convention to
count cow/calf pairs. In response to
comments from the beef industry, EPA
described a convention in the November
2001 NODA to count a cow/calf pair as
one animal for 120 days after the calf is
weaned, after which they would be
considered two animals.
What were the key comments?
Comments on the proposal from
organizations and individuals
representing the beef sector indicated
that they thought the proposal would
alter the way mature and immature beef
cow pairs are counted. They commented
that if a cow/calf pair was counted as
two animals, the proposed rule would
have a significant impact on small beef
operations that are largely pasture-
based. Environmental organizations
generally did not comment on this
issue. '
In comments on the 2001 Notice,
States and industry commenters
unanimously supported the proposal to
explicitly count a cow/calf pair as one
animal. [Many commenters said that, in
practice;, producers think of the cow and
calf as a; single entity until weaning time
when the young animal becomes :
physically separated and requires
separate; penning and housing, and
suggested adopting this standard. Some
commenters suggested other
alternatives, such as counting a cow/calf
pair as 1.2 animal units, or
differentiating the AU equivalent based
on the age of the calves (e.g., up to two
months old the cow/calf would be
counted I as one animal unit, from two to
six months calves would be counted as
0.3, from six months to a year counted
as 0.6, etc.)
Rationale. As described in the 2001
Notice, EPA has always assumed that
cow/calf operations are typically
pasture-based and would not normally
fall within the coverage of the CAFO
regulations. Such operations typically
confine animals only temporarily for
birthing.jveterinary care, or other.
purpose^. This temporary confinement
may result in the operation being
defined as an AFO, in which case it
could in (turn be defined as a CAFO
should ill meet certain conditions.
However!, it is not likely that this
temporary confinement would involve
enough animals to define the operation
as a CAFp. EPA would like to make it
clear that it is still not the Agency's
intention to regulate pasture-based or
rangeland operations. Counting a cow/
calf pair as one animal is consistent
with how EPA treats mother/offspring
pairs housed together at the same-
location in other sectors (e.g., dairy and
swine). J
After considering public comment,
EPA determined that it was appropriate
to consider a cow/calf pair as one
animal until the calf is weaned, rather
than to specify a particular time period
after weaning, which would have-
entailed additional, potentially
burdensome, record keeping
requirements (e.g. date of weaning for
each calf).
/. Eliminate the mixed animal
calculation. With today's final
rulemakirig, EPA is eliminating the
formula for calculating whether an AFO
is a CAFO because of the accumulation .
of several; different animal types in
confinement at one facility. An AFO is
defined as a CAFO only if the specific
threshold|for any one animal sector
covered by today's final regulations is
met. Onc^ a given operation is defined
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as a CAFO, regardless of animal type,
the regulations apply to all of the
manure, litter, and waste-water
generated by the operation. In the event
that waste streams from multiple
livestock species are co-mingled, and
the regulatory requirements for each
species are not the same, the permit
must include the more stringent
requirements.
What did EPA propose? EPA
proposed to eliminate the mixed animal
calculation.
What were the key comments? A
number of comments were received
concerning the elimination of the mixed
animal calculation. Commenters
opposed to the elimination of the
calculation believe it is more protective
of the environment to count all of the
animals at an operation, in order to
address the cumulative quantities of
manure through the CAFO permit. Some
commenters also claimed that
eliminating the mixed animal
calculation would create an opportunity
for larger operations to avoid permitting
by maintaining slightly fewer than the
regulatory thresholds for several types
of animals. Comments supporting EPA's
proposal agreed that this change
simplifies the regulation, provides relief
to small farms, and focuses the
regulation on the larger, more
specialized facilities that tend to be
more industrialized.
Rationale. As described in the
proposed rulemaking (66 FR 3005) EPA
is eliminating the mixed animal
calculation for several reasons. First,
this action simplifies the regulations. In
addition, EPA's analysis indicates that
the mixed animal calculation would
have caused only a small fraction of the
smaller AFOs to have been defined as
CAFOs, so the Agency believes that this
action does not materially change the
scope of coverage of this regulation. To
the extent that coverage is changed at
all, it appropriately would be shifted
away from smaller operations that tend
to have more sustainable practices and
sufficient crop land for land application
of their manure nutrients. Should an
AFO with mixed animals types be found
to be a significant contributor of
pollutants to waters of the United
States, it could still be designated a
CAFO in accordance with the
designation provisions of this final rule.
4. Is My AFO a CAFO If It Discharges
Only During Large Storm Events?
Today's final rule defines an
operation as a CAFO regardless of
whether the operation discharges only
in the event of a large storm. In other
words, today's final rule eliminates the
25-year,
24-hour storm permitting exemption for
defining a CAFO. EPA notes, however,
that the 25-year, 24-hour storm design
criterion in the ELGs for large CAFOs is
not being changed, except for new
sources in the swine, veal, and poultry
sectors (see preamble section IV.C.2)
What did EPA propose? EPA
proposed to eliminate the 25-year, 24-
hour storm event exemption from the
definition of a CAFO.
What were the key comments?
Comments from the animal agriculture
industry were generally opposed to
eliminating the permit exemption. Their
position was that facilities that
discharge only as a result of a storm
event that exceeds a 25-year, 24-hour
storm should not be covered by an
NPDES permit. Environmental
organizations and others supported the
elimination of the exemption based on
the position that it was not being used
appropriately by the industry. States
were split on whether to eliminate the
exemption, depending largely on their
current regulatory policy. Many
commenters confused the proposed
elimination of this exemption with
consideration of the appropriate design
standard for permitted facilities.
The SBAR Panel agreed that removing
the 25-year, 24-hour exemption was
generally appropriate for Large CAFOs
ecause of the significant potential for
environmental harm from Large CAFOs
when the manure is not properly
managed. The Panel also recognized
that, under the terms of the proposal,
eliminating the exemption would mean
that some facilities would need to apply
for a permit even though they have
sufficient manure management and
containment in place or, for some other
reason, do not discharge except in a
25-year, 24-hour storm.
The Panel recommended that EPA
consider reduced application
requirements for small operators
affected by the removal of the
exemption. In the proposed rule EPA
requested comment on whether to retain
this exemption for small facilities as
well as how many animals would be
considered "small" for this purpose.
The Agency carefully analyzed these
issues during the development of this
final rule.
Rationale. For the reasons stated in
the proposal (66 FR 3006), and based on
EPA's analysis of comments and other
information, the Agency continues to
believe that the 25-year, 24-hour storm
permit exemption has created confusion
and ambiguity that undermines the
ability of permitting authorities to
implement the CAFO regulations
effectively. Eliminating this provision
will: (1) Ensure that all Large CAFOs are
appropriately permitted; (2) ensure
through permitting that facilities are, in
fact, properly designed, constructed,
operated, and maintained to contain
manure and the rainfall associated with
a 25-year, 24-hour storm event or'the
revised standard for new sources in the
swine, veal calf, and poultry sectors; (3)
improve the ability of EPA and State
permit authorities to monitor
compliance; (4) ensure that facilities do
not discharge pollutants from their
production areas and that they land
apply manure, litter, or process
wastewater in accordance with site
specific nutrient management practices
that ensure appropriate agricultural
utilization of the nutrients in the
manure, litter, and process wastewater;
and (5) achieve EPA's goals of
simplifying the regulations, providing
clarity to the regulated community, and
improving the consistency of
implementation.
The 25-year, 24-hour exemption was
not applicable to operations that became
CAFOs by designation. Since small
AFOs can only become CAFOs by
designation, the elimination of this
exemption will not affect the universe of
Small CAFOs (refer to section IV.A. 7 for
a discussion of designation).
Because EPA is not changing the
criteria under which medium facilities
are defined as CAFOs, the elimination
of the 25-year, 24-hour storm permitting
exemption is not expected to
significantly affect title universe of
Medium CAFOs either. EPA believes
that at most medium facilities that meet
the existing conditions for being defined
as a CAFO, discharges would most
Hkely occur not only in the
25-year, 24-hour storm but as a result of
lesser storms as well. For example, a
facility with a pipe or other man-made
conveyance is likely to discharge to
surface water in wet weather, or for that
matter could potentially discharge even
in dry weather. Similarly, a facility that
has a stream or other water of the
United States running through the
production area meets the definition of
a CAFO and is also likely to discharge
in less than the 25-year, 24-hour storm.
By using the existing criteria, the
Agency does not believe that there will
be a significant increase in the number
of medium facilities defined as CAFOs.
Medium facilities that meet these
conditions are encouraged to take
advantage of available technical support
and eliminate the conditions thatcause
them to be defined as a CAFO.
Accordingly, EPA believes that the
Agency has addressed the principal
concerns raised by the SBAR Panel. In
addition, the Agency has taken steps to
reduce the amount of information
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required as part of the permit '
application process, thereby addressing
the other concern raised by the Panel.
In providing comm'ents on the
proposed rule, a number of commenters
appear to have confused EPA's proposal
to eliminate the 25-ye|ar, 24-hour stqrm
event as a permit exemption with issues
relating to the design (standard for the
effluent limitation guideline. In this:
final rule, the Agency! is eliminating the
use of the 25-year, 24Jhour storm only
for the purpose of determining who is
required to be covered by an NPDES
permit. The Agency is retaining the i
existing design standard for
containment based on1 the 25-year,
24-hour storm event (except for new!
sources in certain anujnal sectors, as i
• discussed elsewhere ih this preamble).
The elimination in today's rule of the
25-year, 24-hour storm exemption from
permitting is also compatible with i
today's requirement for all CAFOs to,
apply for a NPDES permit. In section;
IV.B.l below, EPA explains the reasons
for adopting a more cdmprehensive !
"duty to apply" today| including the
unique characteristics! of CAFOs and'the
zero discharge regulatory approach
(except for large stormj events) that :
applies to them, the historical
experience showing the lack of i
permitting of Large CAFOs, and the
need to simplify and ciarify the
applicability of the rule. Retaining the
25-year, 24-hour storm exemption from
permitting would not be compatible
with these reasons and indeed would
perpetuate confusion over which
operations are requires! to apply for a
permit. j . ;
Having eliminated the 25-year,
24-hour storm exemption from
permitting, today's rule nevertheless
allows operations to avoid permitting if
they can demonstrate that they truly
have no potential to discharge (see :
section IV.B.2). However, operations :
that do have the potential to discharge,
even if just in the 25-year, 24-hour
storm, may not receive! a determination
of no potential to discharge. j
5. How Are Land Application \
Discharges of Manure and Process ;
Wastewaters at CAFOs Covered by This
Rule? j
Today's rule clarifies that runoff from
the application of CAFO manure, litter,
or process wastewaters| to land that is
under the control of a GAFO is a
discharge from the CAFO and subject to
NPDES permit requirements, except
where it is an agricultural storm water
discharge. All permits for CAFOs must
contain terms and conditions on land;
application in order to ensure
appropriate control of discharges that
are not agricultural storm water.
What did EPA propose? EPA
proposed to define an'AFO to include
both the animal production areas of the
operation and any land areas under the
control of the owner or operator on
which manure and process wastewaters
are applied. The definition of a CAFO
is based on the AFO definition and
therefore would have included the land
application areas as well. Accordingly,
a CAFO's permit would include
requirements to control discharges from
both its production area and its land
application area.
What were the key comments? A
number of commenters asserted that
EPA lacks the authority to include
permit requirements governing a
CAFO's land application of manure and
process wastewaters. They claim
generally that the runoff from such land
application is a nonpoint source
discharge and therefore is not subject to
NPDES requirements. In particular, they
argue that because land application
areas are not places where animals are
concentrated or fed, there is no basis in
the Act for including them in the
definitions of AFO and CAFO. In
addition, in their view, runoff of CAFO
manure and process wastewaters from
land application areas is excluded from
the point source definition because it is
"agricultural storm water." They believe
that land application runoff is
appropriately addressed only through
nonpoint source, voluntary, incentive-
based programs. Accordingly, these
commenters objected to the proposal to
include land application areas in the
definition of an AFO and CAFO.
One commenter also stated that EPA's
policy reasons for including land
application areas in the AFO and CAFO
definitions are not convincing.
Excluding land application areas from
the AFO and CAFO definitions, this
commenter notes, does not necessarily
mean that CAFO generated manure
could be land applied without concern
for the environment. For example, as a
nonpoint source discharge, land
application discharges would still be
subject to State controls, the Clean
Water Act nonpoint source program
(section 319), and the TMDL program.
In contrast, certain other commenters
indicated that there is a significant need
to better address manure and related
discharges from CAFO land application
areas and therefore they agreed with the
proposal to include the land application
areas in the AFO/CAFO definitions.
These commenters stated that this
approach is consistent with recent court
decisions and that addressing land
application runoff is critical to ensuring
water quality protection.
Rationale. EPA noted in the proposal
that the jrunoff from land application of
manure jat CAFOs is a major route of
pollutant discharges from CAFOs; that
in some,regions of the country, the
amount pf nutrients present in land-
applied manure has the potential to
exceed the nutrient needs of the crops;
that areas exist of widespread
phosphorus saturation of the soils; and
that research shows a high correlation
betweenj areas with impaired lakes,
streams and rivers due to nutrient
enrichment and areas where there is
dense livestock and poultry production.
EPA fundamentally disagrees with
those commenters who asserted that the
Agency lacks authority over land
application discharges at CAFOs
because this is an attempt to regulate
nonpoint source pollution. Under the
Clean Water Act, the Agency has broad
discretion to determine what are point
source discharges from CAFOs. EPA '
explained in the proposal why it is
appropriate to clearly specify that land
application discharges of manureland
process Wastewater from areas where
CAFO manure and process wastewaters
have been overapplied are discharges by
the CAFO that are subject to NPDES
requirements rather than being nonpoint
source discharges. In brief, EPA stated
in the proposal that the pipes and other
manure-spreading equipment that
convey CAFO wastes to the fields are an
integral part of the CAFO, and so
discharges from this equipment should
be considered discharges from the
CAFO. Further, land application areas
are integral to CAFO operations, and
there have been significant discharges in
the past attributed to land application of
CAFO wastes. The proposal noted in
addition that defining CAFOs in this
way is consistent with EPA's effluent
limitations guidelines for other :
industries, which consider on-site waste
treatment] systems to be part of the
productioja facilities in that the
regulations restrict discharges from the
total operation.
EPA believes that, in explicitly1
including, CAFOs in the definition of a
point source (CWA Sec. 502(14)),
Congress intended that discharges of
manure and process wastewater from a
CAFO to Caters of the U.S. should be
regulated through the NPDES permit
program. Since one important manner
by which jCAFOs may produce such
discharges is to apply manure and
process wastewater to land areas under
their control, EPA believes that
Congress must have intended discharges
from a CAFO's land application area to
be at least potentially included as
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regulated point source discharges.
However, Sec. 502 also includes a
specific exclusion from the definition of
a point source for "agricultural storm
water discharges." EPA explains in the
following section how it interprets these
two statutory provisions in order to
identify which discharges from a
CAFO's land application area are
agricultural storm water discharges and
therefore are not point source
discharges.
Because the runoff from land
application of manure at CAFOs is a
major route of pollutant discharges from
CAFOs, and for the other reasons
articulated above, EPA does not believe
it is sufficient to rely on non-regulatory
controls cited by one of the commenters,
such as the CWA section 319 program,
or State non-NPDES authorities.
While EPA is today making explicit in
the regulations that a CAFO's land
application of CAFO manure and
process wastewaters is subject to NPDES
requirements, the Agency is doing so
through different regulatory language
from what was proposed. EPA proposed
to amend the AFO definition to include
the land application areas at the facility
as well as the animal production areas.
Following the proposal, however,
concerns were raised that this language
could be misconstrued to mean that
CAFO permits must include terms and
conditions on any pollutants running off
the operation's land application areas
(for example, runoff of pesticides). This
was not EPA's intent. The focus of this
rulemaking is on the CAFO manure and
process wastewaters that may be
discharged by the CAFO. Therefore,
EPA has chosen not to include the land
application areas at an animal feeding
operation within the definition of an
AFO or CAFO in the final regulations.
Instead, EPA has added section
122.23(e), entitled "Land application
discharges from a CAFO are subject to
NPDES requirements," which states as
follows: "The discharge of manure, litter
or process wastewater to waters of the
United States from a CAFO as a result
of the application of that manure, litter
or process wastewater by the CAFO to
land areas under its control is a
discharge from that CAFO subject to
NPDES permit requirements, except
where it is an. agricultural storm water
discharge as provided in 33 U.S.C.
1362(14)." This provision goes on to
state that a discharge of manure or
process wastewater from a CAFO's land
application areas is an agricultural
storm water discharge under certain
conditions, as discussed in the next
preamble section.
The Agency emphasizes that in
today's amendments to the CAFO
regulations, a CAFO's responsibility for
land application discharges extends
only to the CAFO's own land
application areas, which includes areas
at the CAFO itself or otherwise under
the CAFO owner's or operator's control.
Also, as noted, today's land application
rule provisions apply only to the
application of manure, litter, and
process wastewaters at the CAFO, and
not to other pollutants that may exist at
the operation.
'As explained above, EPA also believes
that the final rules adopted today
appropriately account for the exclusion
of "agricultural storm water discharges"
from the definition of a point source in
the Clean Water Act. This subject is
discussed in the following section.
6. How Is EPA Applying the
Agricultural Storm Water Exemption
With Respect to Land Application of
CAFO Manure and Process
Wastewaters?
EPA is clarifying in today's rule that
discharges of manure, litter, and process
wastewaters from the land application
areas of a CAFO are agricultural storm
water discharges where the manure or
process wastewater has been applied in
accordance with site-specific nutrient
management practices that ensure
appropriate agricultural utilization of
the nutrients in the manure or process
wastewater. Such practices, as specified
in 122.42(e)(l) (vi)-(ix) must be
included in all CAFO permits.
What did EPA propose? For purposes
of land application of manure from an
AFO or CAFO, EPA proposed to define
the term "agricultural storm water
discharge" as a discharge composed
entirely of storm water, as defined in
§ 122.26(a)(13), from a land area upon
which manure and/or wastewater has
been applied in accordance with proper
agricultural practices, including land
application of manure or wastewater in
accordance with either a nitrogen-based
or, as required, a phosphorus-based
manure application rate. Also, as noted,
the proposed effluent guidelines
included technology-based
requirements for a CAFO's land
application areas that were based on the
CAFO's use of proper agricultural
practices. (See 66 PR at 3029-32).
What were the key comments? A
number of the commenters who claimed
that EPA does not have authority to
regulate land application at CAFOs
focused on the exclusion for agricultural
storm water discharges. In their view,
under this exclusion, all runoff of
manure, litter, or process wastewaters
from a CAFO's crop fields is exempt
from the NPDES program as agricultural
storm water. In contrast, other
commenters took the view that because
of the Act's specific naming of CAFOs
as point sources, none of the runoff from
CAFO crop fields is entitled to the
agricultural storm water exemption.
Rationale. The CWA states that the
term "point source" does not include
"agricultural storm water discharges"
(section 502(14)). Nothing in the
statutory language or legislative history
indicates that Congress did not mean to
include agricultural storm water .
discharges from a CAFO in this
exclusion. EPA therefore believes that in
order to interpret the inclusion of
CAFOs as point sources and the
agricultural storm water exclusion
consistently, it is necessary to identify
the conditions under which discharges
from the land application area of a
CAFO are point source discharges that
are subject to NPDES permitting
requirements and those under which
they are agricultural storm water
discharges and therefore are not point '
source discharges.
EPA has determined that it is
appropriate to base the distinction
between agricultural storm water
discharges and regulated point source
discharges of manure, litter, and process
wastewater from a CAFO on whether or
not the manure and process wastewater
has been applied in accordance With
site specific nutrient management
practices that ensure appropriate
agricultural utilization of the nutrients
in the manure or process wastewater.
The specific types of practices that EPA
believes are needed to ensure this are
specified in 122.42(e) (l)(vi)-(ix). Where
such practices have been used, EPA
believes it is reasonable to conclude that
any remaining discharge is agricultural
storm water. Conversely, where such
practices have not been used, EPA
believes it is reasonable to conclude that
land application discharges of manure,
litter, or process wastewater are not
agricultural storm water but are
discharges that Congress meant to
subject to NPDES permitting
requirements when it explicitly
included CAFOs in the definition of a
point source.
When manure or process wastewater
is applied in accordance with practices
designed to ensure appropriate
agricultural utilization of nutrients, it is
a beneficial agricultural production
input. This fulfills an important •
agricultural purpose, namely the .
fertilization of crops, and it does so in
a way that minimizes the potential for
a subsequent discharge of pollutants to
waters of the U.S. EPA recognizes that
even when the manure, litter, or process
wastewater is land applied in
accordance with practices designed to
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I ' I
ensure appropriate agricultural
utilization of nutrients, some runoff of
nutrients may occur during rainfall
events, but EPA bjelieves that this
potential will be minimized and any
remaining runoff can reasonably be
considered an agricultural storm water
discharge. ;
EPA notes that any dry weather
discharge of manure or process '•
wastewater resulting from its
application to lan|d area under the
control of a CAFO would not be:
considered an agricultural storm! water
discharge and would thus be subject to
Clean Water Act requirements. As a
matter of common sense, only storm
water can be agricultural storm water.
Further, if manure or process '
wastewater were applied so thickly that
it ran off into surface waters even during
dry weather, this would not be :
consistent with practices designed to
ensure appropriate agricultural :
utilization.of nutrients.
In this rule, EPA is clarifying how it
believes the scopd of regulated point
source discharges from a CAFO is
limited by the agricultural storm; water
exemption. EPA does not intendits
discussion of hoW the scope of point
source discharges from a CAFO is
limited by the agricultural storm, water
exemption to apply to discharges that
do not occur as the result of land
application of manure, litter, or process
wastewater by a CAFO to land areas
under its control and are thus no,t at
least potentially CJAFO point source '
discharges. In explaining how the scope
of CAFO point source discharges is
limited by the agricultural storm water
exemption, EPA intends that this;
limitation will prdvide a "floor" for
CAFOs that will ensure that, where a
CAFO is land applying manure, litter, or
process wastewater in accordance with
site specific practices designed to
ensure appropriate agricultural
utilization of nutrients, no further
effluent limitations will be authorized,
for example, to ensure compliance with
water quality standards. Any remaining
discharge of manure or process •!
wastewaters would be covered by the
agricultural storm Iwater exemption and
would be considered nonpoint source
runoff. Further, thfe Agency does not
intend that the limitation on the scope
of CAFO point source discharges
provided by the agricultural storm water
exemption be in any way constrained,
so long as manure] litter, or process
wastewater is land applied by the CAFO
in accordance with site specific nutrient
management practices that ensure
appropriate utilization of nutrients. In
particular, EPA does not intend that the
applicability of the agricultural storm
I
water exemption to discharges from
land application areas of a CAFO be
constrained by requirements to control
runoff resulting from the application of
pesticides or other agricultural
practices.
Although as noted above, manure and
process wastewater discharges from the
land application area are not directly
subject to water quality-based effluent
limits, EPA encourages States to address
, water quality protection issues in their
technical standards for determining
appropriate land application practices.
The Agency disagrees with the
commenters who would interpret the
agricultural storm water provision to
exclude all of the runoff from a CAFO's
land application areas. It would not be
reasonable to believe that Congress
intended to exclude as an "agricultural"
storm water discharge any and all
discharges of CAFO manure from land
application areas, for example, no
matter how excessively such manure
may have been applied without regard
to true agricultural needs. Similarly,
EPA does not agree with the
commenters who believe that the
agricultural storm water discharge
exclusion does not apply at all to
CAFOs because Congress singled out
CAFOs by specifically including them
in the definition of point source. There
is nothing in the text of the point source
definition (CWA section 502(14)) that
indicates that Congress intended the
agricultural storm water discharge
exclusion not to apply to CAFOs.
After considering all the comments,
EPA has decided that it is not necessary
to include a definition of the term
"agricultural storm water" in the rule
text at section 122.23(b). EPA believes
that the amended regulatory text at 40
CFR 122.23(e), in combination with this
preamble discussion, adequately
clarifies the distinction between
regulated point source discharges and
non-regulated agricultural storm water
discharges from the land application
area of a CAFO.
Under the final rule, as proposed,
discharges from the production area at
the CAFO (e.g., the feedlot and lagoons)
are not eligible for the agricultural storm
water exemption at all, because they
involve the type of industrial activity
that originally led Congress to single out
CAFOs as point sources.
Today's final rule also requires all
permits for CAFOs to include terms and
conditions to address land application.
See section 122.42(e) and Part 412. The
Agency has included this requirement
because it ha's the authority to regulate'
point source discharges and any
discharge of CAFO manure, litter, or
process wastewaters from the land
application area of a CAFO which is not
agricultural storm water is subject to the
Clean Water Act. EPA believes that the
only way to ensure that non-perrnitted
point source discharges of manure, litter
or process wastewaters from CAFOs do
not occur is to require that CAFOs apply
for NPDES permits that will establish
requirements that ensure that manure,
litter, and process wastewater are'only
applied to CAFO land application areas
in accordance with site specific nutrient
management practices that ensure
appropriate agricultural utilization of
the nutrients in the manure, litter, or
process wastewater.
I
7. When and How Is an AFO Designated
as a dAFO? :
In today's final rule, EPA is retaining
the requirement for an on-site
inspection and a determination that an
AFOj is a significant contributor of
pollutants to waters of the United States
prior to designating an AFO as a CAFO.
A small AFO may be designated only if
it discharges either: (1) Into waters of
the United States through a man-made
ditch, flushing system, or other similar
man-jmade device or (2) directly iiito
waters of the United States that
originate outside of the facility and pass
over,! across, or through the facility or
otheijwise come into contact with the
confined animals. Medium operations
may also be designated as CAFOs even
if they dp not meet either of the two
conditions for being defined as a CAFO.
What did EPA propose? In the '
proposed rule, EPA presented two
optiojns with respect to the designation
criteria. EPA proposed to retain the
existing criteria under a three-tier
structure and proposed to eliminate
them under a two-tier structure. In
addition, EPA requested comment on
several additional alternatives that
would have retained the criteria only for
small operations. :
EPA also proposed to modify the on-
site inspection requirement to explicitly
include other forms of information
gathering such as use of monitoring
data,ifly-overs, and satellite imagery.
EPA also proposed a technical
correction, changing the term
"significant contributor of pollution" to
"significant contributor of pollutants."
What were the key comments? EPA
received limited comment concerning
proposed changes to the designation
criteria. Only a few States specifically
supported the elimination of the .
criteria. A few representatives of the
livestock industry generally supported
elimination of the criteria for operations
of alljsizes. Commenters were generally
opposed to EPA's proposal to modify
the on-site inspection requirement to
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allow for alternative data gathering
methods. Some commenters
acknowledged that the alternative
methods of data collection proposed by
EPA can indicate situations where a
potential water quality problem exists;
however, most commenters asserted that
on-site inspections by knoxvledgeable
personnel are the only fair and accurate
method of determining whether an AFO
is a significant contributor of pollutants.
The SB AR Panel raised concern over
the proposed changes to the designation
criteria, and the potential to cause more
small businesses to be subject to
regulation. The Panel supported the
retention of the existing designation
criteria and process.
Rationale. EPA has decided to retain
the existing designation criteria and
process because the existing criteria
strike an appropriate balance for
ensuring protection of surface water
quality while maintaining flexibility for
States to assist small and medium
operations before they become subject to
NPDES requirements for CAFOs.
Retaining toe requirement for an on-site
inspection will help ensure a reasoned
assessment of the situation has been
performed and make the operation
aware that it may be designated a CAFO.
AFOs that do not meet the regulatory
definition of a CAFO can often be
effectively addressed by State voluntary
programs or regulatory non-NPDES
programs focused on the elimination of
the conditions that pose a threat to
water quality. Implementing these
voluntary or non-NPDES State programs
can help to ensure that medium and
small operations implement proper
practices and are not designated as
CAFOs. If documented threats to water
quality are not addressed by the owner
or operator of particular AFOs, the
NPDES CAFO regulations provide States
with appropriate flexibility to use
designation as an effective mechanism
to designate these operations as CAFOs
on a case-by-case basis. Once designated
as CAFOs, these operations are subject
to the permitting requirements defined
in today's action. Note that the ELGs
apply only to Large CAFOs. For
Medium and Small CAFOs appropriate
permit limits should be established
according to the BPJ of the permitting
authority.
Although no change has been made to
either the former designation criteria or
the requirement for an on-site
inspection, EPA is adopting as final a
technical correction to the regulatory
language on designation, changing the
term from "significant contributor of
pollution" to "significant contributor of
pollutants." for the reasons discussed in
the proposal. This technical correction
makes the NPDES CAFO regulations
consistent with the rest of the NPDES
program. EPA received very few public
comments on this revision.
If, after conducting an on-site
inspection, the NPDES authorized State
(or EPA in certain circumstances:—see
below) determines that an AFO is a
significant contributor of pollutants to
waters of the United States, the AFO
may be designated as a CAFO. The
determination of whether an AFO is a
significant contributor of pollutants to
waters of the United States should
consider the cumulative impacts of
multiple AFOs that may be causing or
contributing to the exceedance of water
quality standards.
8. Can EPA Designate an AFO as a
CAFO Where the State Is the Permitting
Authority?
Today's final rule explicitly
authorizes the EPA Regional
Administrator to designate CAFOs in
NPDES authorized States where the
Regional Administrator has determined
that one or more pollutants in the AFO's
discharge contributes to an impairment
in a downstream or adjacent State or
Indian country water that is impaired
for that pollutant. Upon designation, the
operation would be required to apply to
the appropriate permitting authority for
permit coverage. It should be noted that
EPA is not assuming authority or
jurisdiction to issue permits to the
CAFOs that it designates in authorized
NPDES States (except for those in
Indian Country). That authority would
remain with the authorized States.
What did EPA propose? EPA
proposed to explicitly authorize EPA
designation of AFOs as CAFOs in
NPDES authorized States, without
limiting this authority to AFOs
contributing to impairments in
downstream or adjacent jurisdictions.
What were the key comments? In
comments submitted on the proposed
rule, States and the livestock and
poultry industry were generally
opposed to EPA designation in NPDES
authorized States. A number of
commenters argued that EPA did not
have the authority to designate in a
State with an authorized NPDES permit
program. Environmental organizations
and allied commenters were generally
supportive of EPA's designation
authority. Those supportive of EPA's
proposal believed that this authority
would be an important component of
ensuring that the revised regulations are
fairly implemented across the entire
country.
Rationale, After careful consideration
of the comments, EPA has decided to
limit EPA designation authority, in
NPDES authorized States, to
circumstances, where the Regional
Administrator has determined that one
or more pollutants in the AFO's
discharge contributes to an impairment
in a downstream or adjacent State or
Indian country water that is impaired
for that pollutant. In these situations,
the State in which the discharge is
located may not have the same
incentives for designating sources as it
would if the impaired water affected by
the discharger were located in the State.
This approach will ensure consistent
implementation of designation i
requirements across State boundaries
where there are serious water quality
concerns. EPA expects NPDES
authorized States to ensure consistency
within State boundaries. It is not EPA's
' intention to make such designations
lightly or without close coordination
with affected States. EPA's designation
authority will be helpful in sensitive
situations where one State finds it
difficult to resolve water quality
impairments caused by AFOs in another
State. ;
EPA disagrees with those commenters
who believe that the Agency does, not
have the legal authority to designate
CAFOs hi authorized States. In today's
action, EPA is asserting similar, albeit
more limited, authority to designate
CAFOs as compared to designation of
storm water point sources. See 4Q CFR
122.26(a)(l)(v) and 122.26(a)(9). :
Ultimately, EPA's authority to
designate derives from the CWA itself.
CWA Section 501(a) provides the
Agency with the authority to designate
point sources subject to regulation
under the NPDES program, even in
States approved to administer the.
NPDES permit program. This
interpretive authority to define point
sources and nonpoint sources was
recognized by the D.C. Circuit in NRDC
v. Costle, 568 F.2d 1369,1377 (DC Cir.
1977). The interpretive authority arises
from CWA Section 501(a) when EPA
interprets the term "point source" at
CWA Section 502(14).
9. How Can States Use Non-NPDES
Programs To Prevent Medium and Small
Operations From Being Defined or
Designated as CAFOs?
EPA promotes the efforts of States to
actively use a variety of strategies to
work with owners and operators of
AFOs to ensure that they do not meet
the criteria that would result in tlieir
being defined or designated Small or
Medium CAFOs.
Operators of medium and small
facilities are encouraged to participate
in voluntary programs that promote
sustainable agriculture and the
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ions
reduction of environmental impacts.
EPA anticipates thatj participation in
these programs will assist them in \
eliminating conditions which would
result in the AFO bejing defined or
designated as a CAFO. For example, it
may be that an operation that confijnes
500 cattle and that participates in a,
voluntary program to develop and •
implement a CNMP.Jas defined by
USDA, could proactively fix situations
that may otherwise cause them to meet
the criteria for beingjdefined or ;
designated as a CAFO. EPA intends to
develop a small entity compliance guide
to assist small business and additional
tools needed to assist AFOs in
complying with this requirement. Please
refer to a more extensive discussion of
how this rule promotes and encourages
State flexibility in section V.F.
10. What CAFOs Are New Sources?
Today's final rule makes no changes
to the definition of "hew source" in 40
CFR 122.2 or the definition and criteria
for new source determinations in 40
CFR 122.29 with resp|ect to CAFOs.iFor
purposes of applying! the new sourcje
performance standards in today's final
rule, a source would be a new sourqe if
it commences construction after Apnl
14, 2003 (see 40 CFR 122.2). Each [
source that meets thi? definition is ',
required to achieve the new New Source
Performance Standard upon ;
commencing discharge.
What did EPA propose? EPA
proposed additional criteria for
determining who is aj new source,
including: !
1. The CAFO is constructed at a site
at which no other source is located;
2. The CAFO totally replaces the •
housing including annual holding areas,
exercise yards, and fdedlot, waste
handling system, production process, or
production equipment that causes the
discharge or potential to discharge
pollutants at an existing source; or !
3. The CAFO constructs a production
area that is substantially independent of
an existing source at the same site.
What are the key comments? Some
industry commenters expressed the '
view that the new source definitions
were too broad and wjould result in
many existing CAFOs being considered
by their permitting authority as new
sources. Commenters jinterpreted the
proposal to mean that operations
undergoing routine operation and
maintenance or replacement of
individual structures and equipment
could be considered a! new source under
the proposed language. These existing
facilities defined as new would have to
undergo costly improvements to comply
with the NSPS. In addition, the new!
source definition would be a
disincentive to conduct routine
maintenance and improvements at an
operation. The commenters indicated
that EPA did riot provide enough
rationale to include this language and
that other industries do not have such
a broad new source definition. Industry
commenters, including some
conservation districts, concluded that
EPA should retain the existing
definition.
Comments from environmental
organizations and private citizens
indicated their belief that all expanding
AFOs should be considered CAFOs and
subject to NSPS, and that these
standards should be more restrictive
than the existing source standards.
Rationale. After reviewing public
comment and reconsidering this
proposed revision, EPA has concluded
that the existing regulation at
§ 122.29(b) provides adequate criteria
for determining who is a new source.
EPA's intention was to provide permit
writers with clear and specific criteria
applicable to CAFOs to improve clarity
of these regulations. In retrospect, the
only clarification that was provided was
related to § 122.29(b)(ii), which refers to
when the new construction "totally.
replaces the process or production
equipment that causes the discharge of
pollutants at an existing source." While
the Agency disagrees with commenters
that the proposed revisions would
expand the scope of the existing
regulation, EPA decided that it was not
necessary to adopt the proposal as the
existing regulation is sufficient for EPA
to provide guidance on determining
new sources. Further, EPA is not
adopting the proposal in the interest of
keeping the regulation simple.
Nevertheless, EPA believes some clarity
as to which CAFOs are new sources is
appropriate. In response to commenters
who believe that EPA should consider
any facility that expands to be a new
source, EPA did not propose such a
definition, the reasons for which are
discussed at 66 FR 3066 of the proposed
rulemaking. EPA is clarifying that it is
not the intent of this section to serve as
a disincentive to CAFOs to maintain,
upgrade, or otherwise enhance facilities
and waste management systems to
improve their operational and
environmental performance. Thus, EPA
is clarifying that an expanding source is
not automatically defined as a new
source. For example, a facility that
expands its operation by simply
extending existing housing structures by
constructing new housing adjacent to
existing housing, is not typically
considered a new source. Under existing
provisions at § 122.29(b) such
expansions at an existing facility would
not result in the facility becoming
defined as a new source unless the
modifications totally replace the process
or production equipment that causes the
discharge of pollutants, or the new/
modified facility's production and waste
handling processes are substantially
independent of the preexisting source.
B. Who, Needs a Permit and When?
1. Who'Needs To Seek Coverage Under
an NPEJES Permit?
Today's rule requires all CAFO
owners; or operators to seek coverage
under an NPDES permit, except in very
limited!situations where they make an
affirmative demonstration of "no
potential to discharge," as discussed
below. This "duty to apply" applies
without exception; it makes no
difference, for example, whether the
CAFO manure management system has
been appropriately designed and
operated to prevent discharges except
during large storm events. Recognizing
that there may be certain situations in
which no reasonable potential to
discharge exists, EPA has also '.
established the ability for a CAFO
owner q'r operator to demonstrate: that
the facility has no potential to discharge
from either its production areas or its
land application areas. If the permitting
authority agrees with the demonstration
of no potential to discharge, the '
operation would not need to obtain an
NPDES permit. The no potential to
discharge demonstration is not relevant
to small! or medium operations because
an actual discharge is a required
criterion for a small or medium '.
operation to be considered a CAFO.
What 'did EPA "proposal EPA '.
proposed to require all CAFOs to seek
coverage under an NPDES permit,
except where they can demonstrate no
potential to discharge.
What fvere the key comments'?
Environmental groups were largely in
favor of the duty to apply provision, and
sought to ensure that all Large CAFOs
in particular had a duty to apply. These
commenters expressed concern about
the impacts of unregulated operations,
the potential for CAFOs to discharge,
and the lack of permitting of CAFOs •
under the current regulations. Many
commenjters stated that because oif the
potential to discharge CAFOs should
have NPDES permits.
Trade associations and industry
commenters were largely opposed to the
duty to ajpply requirement. A number of
these commenters questioned EPA's
legal authority for requiring permit
applicatipns from CAFOs that claim not
to discharge. They argued that the Clean
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Water Act requires an NPDES permit
only for an actual discharge of
pollutants to the waters of the United
States. Commenters also noted that
imposing a duty to apply is inconsistent
with EPA's past interpretations of the
Clean Water Act, pointing to past
instances in which EPA has stated that
permits are required only for actual
discharges.
An industry commentef also
disagreed with EPA's reasons for finding
that there is a need to impose a duty to
apply for a permit for CAFOs. The
commenter disagreed with EPA's belief
that many large AFOs have not applied
for permits because of widespread
confusion over the CAFO regulatory
requirements and stated that any
confusion in the regulations can easily
be remedied by EPA. The commenter
noted that there could be other reasons
these operations are not permitted (for
example, the operation does not
discharge, it discharges only in a 25-
year, 24-hour storm, or is a dry poultry
facility). Commenters also questioned
EPA's finding that many CAFOs are
discharging without a permit and stated
their belief that CAFO discharges are no
more intermittent (and thus no more
difficult to detect and document) than
those in other industries.
These commenters also asserted that
EPA is not authorized and not justified
in putting the burden on the CAFO to
show that it does not discharge.
According to the commenters, this
presumption of a discharge weakens the
requirement of an actual discharge in
the Act and will result in EPA
regulating facilities that Congress
intended to exclude from the NPDES
program.
State comments were mixed. Most
supported the duty to apply provision,
including the no potential to discharge
determination, agreeing with EPA that
any operation that meets the definition
of a CAFO should be required to apply
for a permit. Some States indicated that
the criteria for becoming a CAFO
needed to be clear, and then facilities
would know when they are CAFOs and
would comply with the duty to apply.
Other States opposed this proposal for
a variety of reasons, including that
shifting the burden of proof to the
facility would be onerous, especially if
EPA lowers the regulatory threshold;
that there was no need to impose a
permit in order to ensure that livestock
operations have nutrient management
plans; and that EPA should not create
duplicative efforts in States with
effective programs.
Although the SBAR Panel did not
comment on the proposed duty to apply
requirements, the Panel did comment
on EPA's proposal to require all
medium facilities either to certify that
they are not CAFOs or to seek coverage
under an NPDES permit. The Panel
recommended that EPA carefully
consider the burden of such
requirements. The Panel also was
concerned that requiring full permit
applications from the number of
Medium CAFOs contemplated at
proposal may impose a significant
burden with limited environmental
benefits, and recommended that EPA
carefully consider appropriate
streamlining options. Finally, the SBAR
Panel recommended that, before adding
any new application or certification
requirements for operators in this size
range, EPA should carefully weigh the
burden and environmental benefits of
expanding the scope of the regulations
in this way.
Rationale. After careful consideration
of the comments, EPA is adopting the
"duty to apply" in today's final
regulations. This revised duty to apply
is designed to identify and ultimately to
prevent actual unauthorized discharges
to the waters of the United States,
consistent with the intent and goals of
the Clean Water Act. CAFOs that
demonstrate that they do not have a
potential to discharge will not need to
seek coverage under a permit, as
discussed in section IV.B.2 of this
preamble.
EPA continues to believe that there is
a strong need and a sound basis for
adopting this duty to apply and that it
is within the Agency's authority to do
so. EPA fully discussed its rationale for
this provision in the proposal. There,
the Agency discussed the duty for
CAFOs, other than those which
discharge only in the event of a 25-year,
24-hour storm, to apply for a permit
under the existing NPDES regulations
(40 CFR 122.21(a)) and explained a
number of reasons behind the need for
a clarified and more broadly applicable
duty to apply for CAFOs.
EPA disagrees with the comment that
there is no need for a duty to apply
because there may be legitimate reasons
for so many operations being
unpermitted at present. In fact, there are
numerous documented instances in the
administrative record of actual
discharges at unpermitted CAFOs that
are not associated with 25-year, 24-hour
storms. EPA also disagrees that CAFO
discharges are no more intermittent than
those in other industries. Operations in
other industries are typically designed
to routinely discharge after appropriate
treatment; this is not the case at CAFOs,
where discharges are largely unplanned
and intermittent. It is thus much easier
for CAFOs to avoid permitting by not
reporting their discharges. EPA
continues to believe that imposing a
duty to apply for all CAFOs is
appropriate given that the current
regulatory requirements are being
misinterpreted or ignored. Moreover,
simply clarifying the regulations would
not necessarily be adequate, because
operations might still claim that the
Clean Water Act requires no permit
application if the facility claims not to
discharge. As discussed in the proposal,
Congress contemplated that EPA could
set effluent standards at zero discharge,
where appropriate, and that EPA would
effectuate these standards through
permits; this statutory scheme would be
negated if CAFOs were allowed to avoid
permitting by claiming that they already
meet a zero discharge standard.
EPA noted in the proposal that it had
not previously sought to categorically
adopt a duty to apply for an NPDES
permit for all facilities within a
particular industrial sector. The Agency
explained that it is doing so for reasons
that involve the unique characteristics
of CAFOs and the zero discharge ;
regulatory approach (except for large
storm events) that applies to them. EPA
also noted that since the inception of
the NPDES permitting program in the
1970s, only a small number of Large
CAFOs have actually sought permits.
The Agency is adopting this revised
duty to apply for all of these reasons,
including this historical experience
showing the lack of permitting of Large
CAFOs, while numerous documented
discharges occurred over time. This
change also serves to substantially
simplify and clarify the applicability of
the rule. :
In addition, there is a sound basis in
the administrative record for the .
presumption that all CAFOs have a
potential to discharge to the waters of
the United States such that they should
be required to apply for a permit, unless
they can show no potential to discharge.
EPA does not agree with the claim, that
the presumption of a discharge will
weaken the requirement of an actual
discharge in the Clean Water Act and
will result in EPA regulating facilities
that Congress intended to exclude from
the NPDES program. CAFOs will have
the opportunity to demonstrate that they
do not have a potential to discharge and
therefore would not be required to apply
for a permit.
2. How Can a CAFO Make a
Demonstration of No Potential To.
Discharge?
Today's rule specifies that a Large
CAFO need not have an NPDES permit
if the permitting authority finds that the
operation has no potential to discharge.
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This final rule prjovides that Large
CAFOs may request and submit
technical information as the basis for a
permitting authority to determine that
there is no potential to discharge.
Today's rule also! establishes ;
requirements for jthe permitting;
authority to issue a public notice that
such a request has been received. The
request for a no potential to disqharge
determination must be submitted by the
date upon which! the CAFO is required
to seek permit coverage (See 40 CFR
122.23(g) and section IV.B.3 and Table
4.2 of this preamble). Within 90 days of
receiving the request, the Director will
let the CAFO know whether or not the
request for a no potential to discharge
determination has been granted If the
request is denied, the CAFO must seek
permit coverage within 30 days after the
denial. I '
What did EPA \proposel EPA
proposed that Large CAFOs have a duty
to apply for an NPDES permit unless the
permitting authority, upon request from
the CAFO, makes a case-specific
determination thjat a CAFO has no
potential to discharge pollutants to
water of the United States.
What were thelkey comments! Trade
associations and industry comnienters
fsnerally opposed the requirement to
emonstrate "no potential to \
discharge." Their objections largely
follow from their view that CAFOs
should not be required to apply for a
permit in the firsjt instance absent
evidence of an actual discharge. Having
to show "no potential to discharge" in
order to avoid a permit would place a
difficult or impossible burden on
operations to prove a negative, in their
view. They also expressed concerns
over the resources and expense of
showing "no potential to discharge" and
about how permitting authorities will be
able to interpret and apply this;standard
.consistently. Certain environmental
groups, on the other hand, were also
opposed to this provision, but their
view is that CAEOs should be required
to apply for permits without exception,
and there should be no allowance for
CAFOs to avoid permitting based on a
finding of "no pptential to discharge."
They also voiced concerns that this
provision will invite abuse by States
that seek to avoid permitting
responsibilities. On the subject of
whether the rules should include a
public process for the "no potential to
discharge" determination, public
commenters expressed views both for
and against including this process.
Those seeking to have a public process
included their belief that it will serve as
a check against any abuses hi making
these determinations.
Rationale. Today's rule requires all
CAFOs to apply for a permit unless they
have received a determination by the
Director that the facility has "no
potential to discharge." The "duty to
apply" provision is based on the
presumption that every CAFO has a
potential to discharge and therefore
must seek coverage under an NPDES
permit. However, the Agency does not
agree with commenters that there
should be no opportunity to rebut this
presumption and avoid permitting
because EPA recognizes that, although
they may be infrequent, there may be
instances where a CAFO truly does not
have a potential to discharge. For
example, the CAFO may have no
potential to discharge because it is
located at a great distance from any
water of the United States (see further
discussion on this subject below). In
such circumstances, it would make little
sense to impose NPDES permit
requirements in order to protect against
such discharges. Therefore, the Agency
believes that it is reasonable to allow
facilities that demonstrate "no potential
to discharge" to be released from the
requirement to seek coverage under an
NPDES permit. Although today's
regulation allows facilities to submit
"no potential to discharge" claims, an
unpermitted CAFO that does in fact
discharge pollutants to waters of the
U.S., with or without a determination of
"no potential to discharge," would be inv
violation of the Clean Water Act.
The requirement for demonstrating no
potential to discharge is not being
extended to small and medium AFOs
since the specific criteria that must be
met prior to becoming CAFOs requires
the existence of a discharge. Whereas
large AFOs are defined as CAFOs based
on number of animals alone, small and
medium AFOs only become CAFOs
after meeting specific discharge-related
criteria. A small AFO can only be
designated as a CAFO by the State
Director or Regional Administrator
where it is determined that it is a
significant contributor of pollutants to
waters of the U.S. A medium AFO can
become a CAFO by designation or
definition. As in the case of small AFOs,
a medium AFO can only be designated
where it is determined to be a
significant contributor of pollutants to
waters of the United States. A medium
AFO that is a CAFO by definition must
meet one of the two "method of
discharge" criteria prior to being
denned as a CAFO. Thus, it is
meaningless to consider such facilities
as having no potential to discharge.
EPA's intention is that the term "no
potential to discharge" is to be narrowly
interpreted and applied by permitting
authorities. This provision is intended
to bb a high bar that excludes those
Large CAFOs from having an NPDES
permit only where the CAFO can-'
demonstrate to a degree of certainty that
they have no potential to discharge to
the jwaters of the United States. The no
potential to discharge status is intended
to provide relief where there truly is no
potential for a CAFO's manure or
was'tewater to reach waters of the
Unijted States under any circumstances
or conditions. Such circumstances
would include, for example, CAFOs that
are located in arid areas and far from
any'water body or those that have
completely closed cycle systems for
managing their wastes and that do not
land apply their wastes. For example, a
CAFO that meets the following .
conditions might be able to demonstrate
no potential to discharge: (1) Located in .
an arid or semi-arid environment; (2)
stores all its manure or litter in a
permanent covered containment
stru'cture that prevents wind dispersal
and precipitation from contacting the
manure or litter; (3) has sufficient
containment to hold all process ;
wastewater and contaminated storm
water and (4) does not land apply. CAFO
manure or litter because, for example,
the JCAFO sends all its manure or;litter
to a regulated, offsite fertilizer plant or
conjposting facility. In particular,. EPA
believes that land application of its
manure and wastewater would, in most
cases, be enough by itself to indicate
that a CAFO does have a potential to
discharge (although conceivably no
potential to discharge could be shown
based on the physical features of the
site^ such as lack of proximity to waters
of the United States). This discussion
should help to address commenters
concerns that there could be
inconsistencies in how permitting
authorities could interpret and apply
the'standard for "no potential to :
discharge". ;
Tjhe term "no potential to discharge"
means that there is no potential for any
CAFO manure, litter, or wastewater to
be added to waters of the United States
from an operation's production or land
application areas, without qualification.
If a)Large CAFO chooses to make a
demonstration of no potential to
discharge, it is the CAFO's
responsibility to provide appropriate
supporting information that the
permitting authority can use when
reviewing the demonstration. The
supporting information should include,
forjexample, a detailed description of
thej types of containment used for
manure focusing on the attributes of the
containment that ensure no discharges
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will occur. In addition, there may be
instances where after preliminary
review of the demonstration, the
permitting authority may require the
submission of supplemental information
to assist in making a determination.
EPA disagrees with commenters'
statements that the demonstration of
"no potential to discharge" will place
an impossible or excessively costly
burden on facilities. EPA believes that,
in many instances, the information that
is specified in 40 CFR 122.23(f)(2) will
be adequate for the Director to
determine whether or not the facility
has a potential to discharge. In such
instances, there would be no greater cost
to the facility than if it were to apply for
a permit. If additional information is
necessary, the Agency does not believe
that it will result in greatly increased
costs, because such information
(including, for example, design
specifications or other technical
information) would be readily available
to the facility and could be easily
provided to the permitting authority.
Today's rule requires that a request
for a no potential to discharge
determination include most of the
information required for a permit
application, as specified in § 122.21(f)
and (i)(l)(i) through (ix). This
information will serve as the primary
source of information relating to the
facility's qualifications to avoid an
NPDES permit. While some additional
information may be available to the
Director, including for example regional
rainfall, soil, and hydrological
conditions, the Director may require
supplemental, site-specific information
to make this determination. However,
EPA is not requiring a CAFO owner or
operator pursuing a no potential to
discharge determination to certify to the
development of its nutrient management
plan, as required by § 122.21(i)(l)(x) for
a CAFO that seeks permit coverage after
December 31, 2006.
Within 90 days of receiving a request
for a no potential to discharge
determination the permitting authority
will notify the CAFO of its decision on
the request. During this review period,
a CAFO that has submitted a request for
a no potential to discharge
determination does not have a duty to
seek coverage under an NPDES permit.
The final rule differs from the proposal
in not imposing a duty to apply on
CAFOs that have submitted a no
potential to discharge request until there
is a denial of the request by the Director.
EPA believes that this is a preferable
approach, because it does not risk the
imposition of NPDES permit
requirements on CAFOs even though
they may qualify for a determination
that they have no potential to discharge.
To guard against abuse of this provision,
the Agency is establishing a limited
time of 90 days for the Director to make
its determination.
If the permitting authority finds that
no potential to discharge has not been
demonstrated, the CAFO owner or
operator must seek permit coverage
within 30 days of the denial of the
request. States may use the information
submitted with the request for a no
potential to discharge determination to
proceed with individual permit
development or for coverage under a
general permit. However, in order to
obtain coverage, the CAFO owner or
operator would also be required to
provide a request for coverage and
include the information required by
§ 122.21(i)(l)(x), when applicable.
After all necessary information is
submitted, and before making a final
decision to grant a "no potential to
discharge" determination, today's rule
requires the Director to issue a public
notice stating that a no potential to
discharge request has been received.
This notice must be accompanied by a
fact sheet which includes, when
applicable: (1) A brief description of the
type of facility or activity which is the
subject of the no potential to discharge
determination; (2) a brief summary of
the factual basis, upon which the
request is based, for granting the no
potential to discharge determination;
and (3) a description of the procedures
for reaching a final decision on the no
potential to discharge determination.
The Director must base the decision to
grant a no potential to discharge
determination on the administrative
record, which includes all information
submitted in support of a no potential
to discharge determination and any
other supporting data gathered by the
permitting authority. If the Director's
final decision is to deny the "no
potential to discharge" determination,
the CAFO owner or operator must
submit a permit application within 30
days after denial of the no potential to
discharge determination.
The Agency believes that the process
described above addresses concerns
raised by commenters that States might
abuse the intended effect of this
provision and allow facilities that
should be permitted as CAFOs to avoid
permitting. The Agency believes this
process should ensure that the Director
has adequate information to properly
decide whether a facility has a potential
to discharge or not, and also ensures
that the public will be made aware of
such determinations and can act
appropriately if it appears that
determinations are not being made as
required by this provision. Also, as
noted above, facilities that actually do
discharge without a permit are subject
to enforcement for a violation of the
Clean Water Act—even if they have
previously received a no potential to
discharge determination. This should
provide a strong incentive to CAFOs not
to file a frivolous request.
3. When Must CAFOs Seek Coverage
Under a NPDES Permit?
Table 4.2 summarizes the time frames
by which CAFOs (existing and new
sources) must apply for an NPDES
permit. Refer to section IV.A. 11 of this
preamble for a discussion of the new
source definition.
TABLE 4.2.—TIME FOR SEEKING COVERAGE UNDER AN NPDES PERMIT
CAFO status
Time frame to seek coverage under an
NPDES permit
Examples
Operations defined as CAFOs prior to April 14,
2003.
Operations defined as CAFOs as of April 14,
2003, and that were not defined as CAFOs
prior to that date (e.g. existing operations that
become defined as a CAFO as a result of
changes in this rule).
Must have applied by the date required in 40
CFR 122.21(c).
As specified by the permitting authority, but
no later than April 13, 2006.
Operations that previously met the definition
of a CAFO and were not entitled to the 25-
year, 24-hour storm permit exemption.
For example, "dry" chicken operations (oper-
ations that did not use a liquid manure han-
dling or continuous overflow watering sys-
tem), stand-alone immature swine, heifer
and calf operations, and those AFOs that
were entitled to the permitting exemption for
discharging only in the event of a 25-year,
24-hour storm.
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TABLE 4.2.—TIME FOR SEEKING COVERAGE UNDER AN NPDES PERMIT—Continued
CAFO status
Time frame to seek coverage under an
NPDES permit
Examples
Operations that pecome defined as CAFOs
after April 14, 2003, but which:are not new
sources.
New sources
Designated CAFOs
(a) newly constructed operations: 180 days
prior to the time the CAFO commences op-
eration; (b) other operations (e.g. increase
in number of animals): As soon as possible
but no later than 90 days after becoming
defined as a CAFO, except that, if the oper-
ational change that causes the operation to
be defined as a CAFO would not have
caused it to be defined as a CAFO prior to
April 14, 2003, the operation must apply no
later than April 13, 2006 or 90 days after
becoming defined as a CAFO, whichever is
later.
180 days prior to the time the CAFO com-
mences operation.
90 days after receiving notice of designation.
For example, an AFO that increases the num-
ber of animals in confinement to a level that
j/vould result in the operation becoming de-
fined as a CAFO.
For example, a" new Large CAFO that com-
hiences construction after April 14, 2003.
What did EPJ^. propose? The Agency
proposed to delay the effective date of
the revised definition of a CAFO until
three years from the date of publication
of the final rulej, and thereby delay the
date by which permits would be
required for nearly defined CAFOs until
three years after the date of the final
rule. During that three-year interim
period, the Agency proposed tibat the
existing GAFO definition would remain
in effect. For example, prior to the
effective date of the revised CAFO
definition, the revised new source and
new discharger provisions would apply
only to those facilities meeting the
definition of a CAFO under the existing
regulatory definition. For designated
CAFOs, EPA prjoposed that the CAFO '
must apply for a permit within 90 days
of being designated.
What were ttie key comments! Some
commenters felt that extending the time
for compliance allowed too much time
for implementation of the new-
regulations, ana would only result in
further delays in addressing the
problems associated with discharges
from CAFOs. Other commenters took
the view that three years is too little
time for States or industry to meet the
new requirements, from either a
technical or economic standpoint. Most
of those who commented on this issue
sought clarity in setting the effective
dates for the regulations.
Rationale. Inj today's rule, EPA is
establishing time frames for seeking
coverage unden a permit that are
appropriate to the various categories of
CAFOs, depending upon their status
with respect to the effective date of the
rule. |
For the reasons discussed in Section
IX of the preamble to the proposed rule,
the Agency does not believe that it
would be reasonable to require permit
coverage for all CAFOs immediately on
the effective date of this rule. Following
issuance of today's rule, 40 CFR 123.62
provides authorized States with time to
revise their State NPDES programs (one
year or two years if statutory changes
are heeded). Further, most States will
need approximately an additional year
to develop a general permit, publish a
draft of the general permit for public
comment, and issue a final general
permit for the many CAFOs that EPA
expects to be covered under a general
permit. EPA believes that a three-year
time frame for newly defined CAFOs to
obtain permit coverage is reasonable
and justified based on the requirements
of 40 CFR 123.62, together with the
need to develop and issue general
permits, and for the reasons stated
below. ;
Today's rule is likely to result in
fewer facilities being defined as CAFOs
than anticipated at the time of proposal.
Because States will not need to address
concerns associated •with identifying,
permitting, and ensuring compliance by
the large number of medium-size
facilities anticipated as potential CAFOs
at the time of proposal, EPA does not
believe that concerns that States would
need more than three years to meet the
new requirements are justified.
The Agency is, however, changing its
approach to. achieve the proposed time
frame for requiring CAFOs to seek
coverage under a permit. Rather than
delaying the effective date for the
definition of a CAFO, as was proposed,
EPA is simply establishing a three-year
time frame for when newly defined
CAFOs must seek coverage under a
permit.
Today's approach is consistent with '
Congressional intent in the 1972 Clean
Water Act. Today's rule marks the first
time in many years, except in the case
of (storm water sources, that the Agency
is revising the scope of the term point
source to include additional facilities
under the definition, hi the 1972 Clean
Water Act, Congress provided more than
twjo years for point sources to obtain
coverage under a permit (§ 402(k)).
Similarly, in this instance, EPA believes
that Congress would have intended for
the Agency to provide additional time
for these newly covered sources to
obtain permit coverage. This additional
tiihe is necessary for States to revise
thfeir regulations and to develop and
issue permits, and it provides facilities
some time to take the necessary steps to
comply with these new requirements.
Moreover, EPA believes that there
will be other advantages as a result of
thb approach taken in today's rule. The
first is to avoid the confusion that
would be associated with having
different and conflicting definitions of a
CAFO present simultaneously in the
Code of Federal Regulations, which
would be the case if EPA were to ;
promulgate a revised definition of
CAFO but delay the effective date of the
definition for three years. The second is
toj encourage States to issue new permits
arid cover newly defined CAFOs as soon
as; possible within the time period
specified. CAFOs are encouraged to seek
cdverage under a permit once general
permits addressing those facilities are
available. A tiiird reason is that this
approach is consistent widi EPA's
approach when the Agency promulgated
the storm water phase II regulations,
although those regulations were based
on a somewhat different statutory
foundation.
[For all of the reasons stated above, the
Agency is exercising its discretion to
define these newly regulated facilities as
point sources, while delaying their duty
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to apply for a permit until three years
from the effective date of today's rule.
Today's rule does not extend the date
by which operations that were defined
as CAFOs under the prior regulations
should have applied for a permit (see 40
CFR 122.21). In particular, EPA notes
that those operations that previously
met the criteria for being a CAFO, but
who erroneously claimed the 25-year,
24-hour storm exemption and avoided
applying for an NPDES permit on that
basis, continue to be in violation of the
regulations and need to immediately
apply for NPDES permit coverage.
Today's rule also does not extend the
date by which operations that have
previously been designated as a CAFO
should have applied for an NPDES
permit.
The third category described in Table
4.2 pertains to a category of permittees
who become CAFOs subsequent to the
effective date of today's rule, but who
are not defined as "new sources" in
accordance with the new source criteria.
For example, a newly constructed
Medium CAFO falls in this category,
since it is not subject to the new source
performance standards in Part 412.
Newly constructed CAFOs in this
category must seek coverage under an
NPDES permit 180 days prior to the
lime the CAFO commences operation.
This requirement is designed to parallel
the time for permit application for new
sources. Other operations that become
CAFOs after the effective date of today's
rule, including, for example, operations
that increase the number of animals in
confinement to a level that would result
in the operation being defined as a
CAFO, but that are not new sources, are
required to seek permit coverage as soon
as possible but no later than 90 days
after being defined as a CAFO. EPA is
establishing this date by which such
new dischargers must seek coverage
under an NPDES permit in
consideration of the unique nature of
AFO operations. In other industries, a
facility would typically require
significant capital improvements to
become a newly discharging point
source. AFOs, on the other hand, may
become a new discharger merely by
increasing the number of animals
housed in confinement at the facility.
Moreover, the increase necessary to
meet the threshold numbers necessary
to be defined as a CAFO could be
relatively small'. Such an increase could
be necessary in response to fast-
changing market conditions, in which
case it would be an undue burden on
the AFO to encounter a delay of 180
days before being able to operate as a
CAFO. Inasmuch as CAFOs are not
continuous dischargers, the Agency
believes that it is reasonable and
sufficient for a CAFO that is a new
discharger (other than those that are
newly constructed operations) to seek
coverage within 90 days after becoming
defined as a CAFO.
EPA is establishing an additional
permit application deadline in this
category of three years where the change
that causes the operation to be defined
as a CAFO would not have caused it to
be defined as a CAFO if the change had
occurred prior to the effective date of
today's rule. This would include, for
example, a dry poultry operation that,
sometime after the effective date of
today's rule, adds animals and exceeds
the threshold for becoming defined as a
CAFO. The Agency is establishing this
permit application deadline since it is
appropriate to treat such facilities on an
equal footing to dry poultry operations
that become defined as CAFOs as of the
effective date of today's rule and who
therefore have three years to apply for
a permit. It would have been inequitable
to have allowed a dry poultry operation
that exists at the time this rule becomes
effective to have three years to apply but
to require a dry poultry operation that
becomes a CAFO because it adds a small
number of animals shortly after this rule
becomes effective to apply within 90
days.
4. What Are the Different Types of
Permits?
Today's final rule allows the
permitting authority to determine the
most appropriate type of permit
coverage for a CAFO. Under die NPDES
regulations, the two basic types of
NPDES permits that can be used are
individual permits and general permits.
Refer to section V.E. of this preamble for
further discussion about the different
types of permits.
What did EPA propose? The proposed
rule would have required States to
conduct a public process for
determining which criteria, if any,
would require a CAFO owner or
operator to apply for an individual
rather than a general permit. The
proposed rule also would have added a
set of CAFO-specific criteria for when
the Director may require an individual
permit: (1) CAFOs located in an
environmentally or ecologically
sensitive area; (2) CAFOs with a history
of operational or compliance problems;
(3) CAFOs that are exceptionally large
operations as determined by the
permitting authority; and (4)
significantly expanding CAFOs. EPA
noted in the preamble to the rule as well
that it had considered identifying a
specific size threshold for individual
permits, such as 5.000AU or 10.000AU,
and solicited comment and information
relating to such a threshold.
What were the key comments?
Comments from industry and State
agencies by and large were both against
setting criteria for individual permits
and against establishing a public '
process for developing such criteria.
States in particular felt that existing
NPDES regulations already adequately
defined the process for developing
individual and general permits, and
strongly advocated against being told at
the federal level what criteria to use in
issuing permits. Environmental groups
commented that they wanted strict
federal criteria for individual permits
out of concerns regarding the need for
federal oversight over large operations
and because of their keen interest in the
public involvement afforded by
individual permits. Many of these
commenters stated that all Large CAFOs
(i.e., all with what was formerly termed
1,000 AU) should be required to have an
individual permit.
Rationale. EPA elected not to set
conditions for determining which
CAFOs must have individual rather
than general permits or to require the
States to establish such conditions. The
Agency determined that selecting a set
of specific thresholds fundamentally
fails to recognize the diversity of feeding
operations in States across the nation.
What may be a "large" facility in one
State is often not viewed as such in
another. This view was confirmed by
the Agency's findings on this issue that
although many States set criteria for
who must have individual rather than
general permits, these conditions vary
greatly from State to State and are
generally dominated by regional
environmental concerns.
5. How Does a CAFO Apply for a
Permit?
CAFO owners or operators must
submit an application for an individual
permit or submit a NOI (or the State's
comparable form) for coverage under an
applicable general permit. If a general
permit is not available, the CAFO: does
not meet the eligibility requirements for
coverage under the general permit, or
the CAFO would otherwise prefer to be
covered by an individual permit, the
CAFO owner or operator must submit to
the permitting authority an application
(EPA's Form 2B for CAFOs and Aquatic
Animal Production Facilities or the
State's comparable form) for an
individual permit. Today's final rule
does not make any changes in how a
CAFO applies for a permit.
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6. What Are the Minimum Required
Elements of an NO1J or Application for
an Individual Permit? :
Today's final rule revises the.
information requirements for seeking
coverage under an NPDES permit for
CAFOs. Today's rule revises the NPDES
individual permit application for
CAFOs (Form 2B fojr CAFOs and
Aquatic Animal Production Facilities),
and specifies the information required
in an NOI form for coverage under a
CAFO general. EPAJ is requiring
applicants for coverage under either
individual or general CAFO permits to
provide the same information: 't
(i) The name of the owner or operator;
(ii) The facility location and mailing
addresses; j
(iii) Latitude and longitude of the
production area (ei
area);
trance to production
(iv) A topographic map of the
geographic area in which the CAFp is
located showing the specific location of
the production area!, in lieu of the.
requirements of paragraph (f)(7) of
§122.21; ,
(v) Specific information about the
number and type of animals, whether in
open confinement and housed under
roof (beef cattle, broilers, layers, swine
weighing 55 pounds or more, swine
weighing less than 55 pounds, mature
dairy cows, dairy heifers, veal calves,
sheep and lambs, horses, ducks, turkeys,
other); I
(vi) The type of containment an(l
storage (anaerobic lagoon, roofed storage
shed, storage ponds, underfloor pits,
above ground storage tanks, below
ground storage tanks, concrete pad,
impervious soil pad, other) and total
capacity for manure, litter, and process
wastewater storage (tons/gallons);
(vii) The total number of acres Under
control of the applicant available for
land application of manure, litter/or
process wastewater; '
(viii) Estimated amount of manure,
litter, and process \\rastewater generated
per year (tons/gallons);
(ix) Estimated amount of manure,
litter, and of process wastewater
transferred to other persons per year
(tons/gallons); and ]
(x) For CAFOs that must seek
coverage under a permit after December
31, 2006, certificatijon that a nutrient
management plan has been completed
and will be implemented upon the date
of permit coverage. 1 • -
The complete Form 2B application
containing all of the amendments |to the
application is included as an appendix
to this preamble. The required data
elements of the NOI are the same as the
minimum data elements in the revised
Form 2B. Where EPA is the permitting
authority, it is EPA's intent to use the
National NOI Processing Center to
process NOIs.
What did EPA propose? EPA
proposed to require applicants for
individual permits to submit the
following information in addition to the
information required at 40 CFR 122.21(f)
and 122.21(1):'
• Acreage available for agricultural
use of manure and wastewater;
• Estimated amount of manure and
wastewater to be transferred off-site;
• Name and address of any person or
entity that owns animals to be raised at
the facility; directs the activity of
persons working at the CAFO; specifies
how the animals are grown, fed, or
medicated, or otherwise exercises
control over the operations of the
facility; (in other words, that may
exercise substantial operational control);
• If a new source, a copy of the draft
Permit Nutrient Plan (PNP);
• Information about whether buffers,
setbacks, or conservation tillage is being
used to protect water quality; and
• A topographic map (required by
Form 1) that identifies the latitude and
longitude of the production area and the
depth to ground water that may be
hydrologically connected to surface
water, if any.!
EPA proposed that similar
information be provided in a revised
NOI for coverage under an NPDES
CAFO general permit.
What were the key comments? Most of
the comments received on this issue
were from the States. Several citizens
and associations also submitted
comments. Several commenters wanted
EPA to delete'the requirement that the
permittee submit the Permit Nutrient
Plan with the permit application. Some
States would also like to continue to use
their forms and not the revised Form 2B.
Some commenters argued that the
proposed requirements set an
undesirable precedent that is both
unnecessary, (because NOI requirements
are normally specified in the relevant
general permit) and that could
negatively affect other industries and
reduce the flexibility of State permitting
authorities.
The SBAR Panel did not specifically
comment on the content of the changes
to Form 2B and the NOI, but the Panel
noted the substantial number of small
entities in the medium range and
recommended that EPA carefully
consider the burden of any additional
certification or application
requirements. The Panel further noted
that EPA had not ruled out the option
of requiring a full permit application
from all operations in the medium
range. I The Panel was concerned that
such an approach may impose a -
significant burden with limited
environmental benefits and therefore
recominended that EPA carefully
consider appropriate streamlining
options before considering a more
burdensome approach. Finally, the
Panel recommended that before adding
any new application or certification
requirements for operators in the
medium range, EPA should carefully
weigbjthe burden and environmental
benefijts of expanding the scope of the
regulations in this way.
Ratipnale. To clarify the subsequent
discussion, it is important to point out
that EPA is not adopting the term.
"Permit Nutrient Plan" in this final rule.
The Agency is referring to the nutrient
management planning requirements of
today's rule simply as the nutrient
management plan. EPA is not requiring
the nutrient management plan to be
submijtted as part of the permit
application for existing sources or new
dischargers. Instead, the permitting
authority may establish within the
permit what information relative to the
nutrient management plan must be
submitted. At a minimum, nutrient
management plans must be maintained
on-site and be available upon request by
EPA or the State permitting authority.
Regarding the changes to the individual
permit application form and the NOI for
coverage under a general permit, EPA
believes that the minimum data .
elements adopted in today's rule will
provide permitting authorities with the
essential information needed to evaluate
permit applications properly and will
ensure national consistency of
infornjation received by permit .
authorities. To the extent that a
permitting authority needs additional
inforniation to support a permit
application, it can use other Clean
Water) Act information gathering
authorities (e.g., section 308 of the Clean
Water I Act) to obtain such information.
The new data elements correspond with
the new rule requirements, including
land a'pplication information.
In today's final rule, the Agency has
revised the topographic map
requirements for a permit application
for CAFOs, by specifying that the CAFO
must provide a topographic map of the
geographic area in which the CAFO is
locate^ showing the specific location of
the production area. In today's final
rule, the Agency is consolidating all of
the information to be submitted as part
of a CAFO's request to seek coverage
under| an NPDES permit in 40 CFR
122.21(1). This information must be
submitted by a CAFO, whether the
CAFO is seeking coverage under an
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individual permit or a general permit. In
establishing the topographic map
requirement of § 122.21(i)(iv), the
Agency is requiring the descriptive
information necessary for permitting a
CAFO, and not including all of the
elements specified in 40 CFR
122.21(f)(7), which generally do not
apply to a CAFO's operations.
In the future, EPA plans to allow the
electronic submission of all NPDES
permit applications such as Forms 1,
2B, and Notices of Intent for general
permits (including attachments such as
maps and diagrams). EPA has proposed
a separate rule dealing with electronic
reporting and recordkeeping (66 FR
46161; August 31, 2001) and is currently
working to address comments and
resolve technical and legal issues. None
of the information collection
requirements being promulgated in
today's rulemaking are intended to limit
or conflict with the future use of
electronic reporting or recordkeeping.
C. What Are the Requirements and
Conditions in an NPDES Permit?
All CAFO NPDES permits must
contain a number of requirements and
conditions, including effluent
limitations, special conditions, standard
conditions, and monitoring and
reporting requirements. The December
1996 U.S. EPA NPDES Permit Writers
Manual, 40 CFR 122.41, and 40 CFR .
122.42 provide a detailed discussion of
all aspects of an NPDES permit. This
section focuses primarily on the major
elements of a CAFO NPDES permit that
are affected by today's rule. Specifically,
this section describes the effluent
limitations, special conditions
applicable to CAFOs, standard
conditions included in all NPDES
permits, and monitoring and reporting
requirements.
1. What Are the Different Types of
Effluent Limitations That May Be in a
CAFO Permit?"
When developing effluent limitations
for a CAFO NPDES permit, the
permitting authority must consider
limits based on applicable technology-
based requirements or any more
stringent requirements necessary to
protect water quality. A water .quality-
based effluent limitation is designed to
protect the quality of the receiving water
by ensuring State or Tribal water quality
standards are met. In cases where a
technology-based permit ,limit is not
sufficiently stringent to meet water
quality standards, the permit must
include appropriate water quality-based
standards. For example, a technology-
based standard for a CAFO might allow
overflows from storage lagoons under
certain circumstances. In some cases,
the overflows might have to be
restricted or further controlled to ensure
that water quality standards are met.
EPA does not expect that water quality-
based effluent limitations will be
established for CAFO discharges
resulting from the land application of
manure, litter, or process wastewater.
As explained in Section IV.A.6 above, if
a CAFO complies with the technical
standards for nutrient management
established by the Director, any
remaining discharges of manure or
process wastewater from the land
application area are considered
agricultural storm water. However, EPA
encourages States to address water
quality protection issues in their
technical standards for determining
appropriate land application practices.
Today's rule does not change any
aspects of water quality-based effluent
limitations in the NPDES regulations.
There are two general approaches to
developing technology-based
limitations: (1) Using national effluent
limitations guidelines (ELGs) and (2)
using BPJ on a case-by-case basis (in the
absence of ELGs). Today's rule revises
the ELGs for Large CAFOs. Small and
Medium CAFOs are not subject to the
ELGs; therefore, the permitting authority
will rely on BPJ to establish technology
requirements for Small and Medium
CAFOs. Revisions to the ELGs are
discussed in detail below.
2. Effluent Limitations Guidelines for
Large CAFOs
The effluent limitations section in
NPDES permits is the primary
mechanism for controlling discharges of
pollutants to waters of the U.S. This
section of the permit describes the
specific limitations, in either a narrative
or numeric form, that apply to the
permittee. The permit contains either
technology-based effluent limits (those
based on a determination of the degree
of pollutant reduction that can be
achieved by applying pollution control
technologies or practices) or water
quality-based effluent limits (those
based on the condition of the receiving
water body) or both, and it may contain
additional BMPs, as needed. This
section discusses the ELGs established
for Large CAFOs.
Today's final rule establishes new
ELGs for Part 412, Subpart C, which
applies to beef cattle, dairy cattle, and
heifers; and Part 412, Subpart D, which
applies to veal calves, swine, and
poultry (chickens and turkeys). Today's
rule also revises the applicability of Part
412, Subpart A to cover only horses and
sheep.
Requirements for Large CAFOs ;are
being established under the authority of
Best Practicable Control Technology
Currently Available (BPT), Best
Available Technology Economically
Achievable (BAT), Best Conventional
Pollutant Control Technology (BCT),
and NSPS, consistent with the factors
for consideration under the Clean Water
Act, as discussed in Sections II. A; 2 and
IV.C.2.f of this preamble. :
a. To which CAFOs do the effluent
guidelines apply?. In today's final rule,
EPA is revising the 1974 ELGs for beef
cattle, dairy cattle, veal calves, swine,
and poultry. Consistent with the 1974
ELG regulation, EPA is continuing to
apply technology-based ELGs only to
those operations which are defined as
Large CAFOs at 40 CFR 122.23. In the
case of Medium or Small CAFOs,.'or
CAFOs not otherwise subject to Part
412, effluent limitations will be
established on a case-by-case basis by
the permitting authority using BPJ.
This final rule removes language
referring to the type of manure handling
or watering system employed at laying
hen and broiler operations; as a result,
it expands the scope of the rule to also
address chicken operations with dry
litter management systems. The term
"dry" does not mean that no
wastewaters are associated with these
types of operations. For example,
poultry waste includes manure, poultry
mortalities, litter, spilled water, waste
feed, water associated with cleaning
houses, runoff from litter stockpiles, and
runoff from land where manure has
been applied. Today's rule adds explicit
references to veal operations and
includes requirements for Large veal
CAFOs under Part 412, Subpart D. (Veal
calves were included in the 1974 ELGs
as part of "slaughters steers and
heifers.") Today's rule further expands
the applicability of the effluent
guidelines to cover Large heifer CAFOs
and operations that confine immature
swine (i.e., swine weighing less than 55
pounds).
What did EPA propose? In the
proposed rule, EPA applied the
technology-based ELGs to all Large
CAFOs (the 1974 ELGs apply to only
Large CAFOs) and proposed to expand
the scope of the rule to apply to .
Medium CAFOs as well. Small CAFOs
were excluded from the applicability of
the ELGs in the proposed rule, and the
limits included in their permits were to
be based on BPJ. EPA also proposed to
expand the scope of the rule to include
heifer operations, immature swine
operations (e.g., swine nurseries),; and
chicken operations with dry litter
management systems.
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What were the Key comments? EPA
received a variety of comments , .
regarding the size of operation to which
the ELGs should apply. A number of
comments favored retaining the
framework of the 1974 ELGs, limiting
the applicability of the ELGs to Large
CAFOs and relying on the use of BPJ for
Small and Medium CAFOs. Some
commenters favored allowing even
broader use of BPJ, with the permitting
authority establishing BPJ-based permit
limits for all CAEOs, regardless of size.
Conversely, other commenters suggested
applying the ELG requirements to all
CAFOs, including Small and Medium
CAFOs. In general, commenters,
expressing suppoVt for applying ELG
requirements to Small and Medium
CAFOs believe that basing permit
requirements on JBPJ will lead to a lack
of uniformity in permit development.
They believe the permit writers ishould
not have an inappropriate amount of
flexibility and thfere should be •
consistent effluent limitations for all
CAFOs. I
The SBAR Panel provided comments
to EPA on this topic during the >
development of tjhe proposed rule,
suggesting that EPA consider less
stringent ELGs fcjr Medium CAFOs or
allow permits for Medium CAFOs to be
developed based! on BPJ. The SBAR
Panel stated that providing a
mechanism for permitting authorities to
establish less stringent guidelines for
smaller facilities! based on
consideration of economic achievability,
could result in permit conditions that
are more appropriately tailored to
smaller operations and reduce the
overall financial burden on the industry.
Rationale. The ELGs being '
promulgated in today's rule apply only
to Large CAFOs, which is consistent
with the approaqh used for the 1974
ELG regulation. EPA is not extending
the ELG requirements being codified at
40 CFR Part 412 [to Small or Medium
CAFOs because setting the permit
limitations for these facilities using BPJ
allows for the establishment of permit
conditions that are more appropriately
tailored to and more directly address the
site-specific conditions that led- to the
facility being defined or designated as a
CAFO. This approach is consistent with
the manner in which permit
requirements for Small and Medium
CAFOs have been established prior to
today's rule. I j
The ELGs promulgated in today's rule
mimic the fundamental structure
embodied in the NPDES provisions. The
NPDES provisions at Part 122 establish
a threshold (in terms of numbers of
animals) above which every AFO is
defined as a CAFO (specifically, these
are defined as Large CAFOs). Similarly,
EPA has determined that, because of the
nature of these Large CAFOs and the
potential risk discharges from these
operations pose to the environment, the
ELGs promulgated today should apply
to Large CAFOs. However, for the
reasons discussed below and consistent
with the approach used in establishing
the 1974 ELGs, EPA is not establishing
ELGs for Small or Medium CAFOs.
EPA's analyses, based on USDA data,
show that small and medium AFOs are
more likely than Large CAFOs to have
a sufficient land base for utilizing
manure nutrients at rates consistent
with appropriate agricultural utilization
of nutrients. Small and medium AFOs
are defined or designated as CAFOs
only when certain conditions that pose
an environmental risk are present at the
operation. Since these smaller
operations become CAFOs only if
certain conditions are present, and the
highly site-specific conditions that
trigger any particular operation being
defined or designated as a Small or
Medium CAFO will vary from facility to
facility, discharges from Small and
Medium CAFOs are more appropriately
controlled through NPDES permit
limitations on a BPJ basis. EPA expects
that, by tailoring the permit
requirements for Small and Medium
CAFOs on a BPJ basis, these smaller
facilities will be able to better and more
efficiently target their more limited
resources to reducing their
environmental impacts. This increased
flexibility for setting the permit
requirements for Small and Medium
CAFOs will reduce the overall financial
burden on the industry. Consistent with
the Unified National AFO Strategy, EPA
is focusing today's ELGs on those larger
operations that present the greatest
potential risk to water quality.
EPA is extending the applicability of
the ELGs to heifer operations and
operations that confine immature swine
(i.e., swine weighing less than 55
pounds). Increasingly, swine operations
may specialize in a production phase,
such as a nursery that confines swine
under 55 pounds. In the dairy sector,
some operators prefer to obtain their
dairy cattle from heifer-raising
operations. These heifer operations
specialize in raising immature dairy
cattle until the cattle are ready for their
first calving. These operations for
immature animals are increasing in both
size and number, and they operate
similarly to other CAFOs. Therefore,
EPA is today including immature swine
under Subpart D (swine/poultry/veal)
and heifer operations under Subpart C
(beef/dairy/heifer) of the ELGs.
In| addition, EPA is expanding the
scojje of the ELGs to address chicken
operations with dry litter management
systems to better address water quality
impacts associated with both storage
and land application of manure, litter,
and process wastewaters. EPA believes
that (improper storage, as well as •
improper land application rates that
exceed the appropriate agricultural
utilization of nutrients, has contributed
to water quality problems, especially in
areas with large concentrations of
poultry production. Nutrients from large
poultry operations continue to
contaminate surface waters because of
rainfall coming in contact with dry
manure that is stacked in exposed areas,
accidental spills, etc. In addition, land
application remains the primary •
management method for significant
quantities of poultry litter (including
manure generated from facilities Using
dry Systems). Most poultry operations
are located on smaller parcels of land in
comparison to other livestock sectors,
placing increased importance on the
proper management of the potentially
largb amounts of manure, litter, and
process wastewaters that they generate.
In the 1974 ELG regulations, EPA
established requirements in a manner
that placed CAFOs into one of two
groups, or subcategories, based on the
type of animals at the operation: One
sub-category established requirements
for ducks only; the second sub-category
established identical ELG requirements
for CAFOs with horses, sheep, slaughter
steejrs and heifers (including veal:
calves), dairy cattle, chickens, turkeys,
andj swine.
Tpday's rule establishes ELGs based
on segregating the animal sectors into
fcouf different subcategories. The ELG
regulations at Part 412, Subpart A now
apply only to Large CAFOs with horses
and sheep, but the ELG requirements for
these operations remain unchanged by
today's rule. Part 412, Subpart B
continues to apply only to CAFOs with
at least 5,000 ducks and these '.
requirements also remain unchanged by
today's rule. Today's rule segregates the .
renjaining animal types covered by the
ELGs into two additional subcategories.
Part 412, Subpart C applies to Large
CAFOs with dairy or beef cattle other
than veal (heifer operations are covered
by this subpart), and Part 412, Subpart
D applies to Large CAFOs with swine,
veal, or poultry. EPA developed these
sub'categories to better reflect
similarities in production and waste
management practices among the
operations grouped together.
The operations in Subpart C
predominantly use production and
waste management practices that differ
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substantially from those practices used
at operations in SubpartD. Large swine,
poultry, and veal calf operations
predominantly maintain their animals
in confinement housing as opposed to
the open outdoor lots used at the vast
majority of large beef feedlots, heifer
operations, and dairies (while dairy
cattle at many dairies spend much of.
their time indoors either in the milking
parlor or in barns, most dairy cattle also
have access to outdoor areas similar in
many respects to the outdoor areas at
beef feedlots). The open outdoor lots
present at beef feedlots expose large
areas to precipitation, necessitating the
ability to collect storm water runoff in
retention ponds. Heifer operations
(other than those that are pasture-based)
are configured and operated in a manner
very similar to beef feedlots, and thus
have very similar waste management
practices. Dairies also frequently keep
animals in open areas for some period
of time, whether it is simply the
pathway from the barn to the milk
house or an open exercise lot. Storm
water runoff from these open areas must
be collected in addition to any storm
water that contacts food or silage. As is
the case for beef feedlots and heifer
operations, the runoff volume from the
exposed areas is a function of the size
of the area where the cattle are
maintained, and the amount of
precipitation.
Because swine, poultry, and veal
calves are predominantly maintained in
confinement housing, the waste
management practices at Large CAFOs
covered by Subpart D differ
substantially from the practices at
Subpart C operations. These
confinement operations are able to
manage manure largely in a relatively
dry form, or contain liquid wastes in
storage structures such as lagoons,
tanks, or underhouse pits/Broiler and
turkey operations generate a dry manure
which can be kept covered either under
a shed or with tarps. Laying hen
operations with dry manure handling
practices usually store manure below
the birds' cages and inside the
confinement building. Nearly all swine,
veal, and poultry operations confine
their animals under roof, avoiding the
use of open animal confinement areas
that generate large volumes of
contaminated storm water runoff. These
Subpart D operations differ most
notably from Subpart C operations in
that they, in most cases, do not have to
manage the large volumes of storm
water runoff that must be collected at
Subpart C operations. While Subpart D
operations that manage wastes in
uncovered lagoons must be able to
accommodate precipitation, they are
largely able to divert uncontaminated
storm water away from the lagoons and
minimize the volume of wastes they
must manage.
The statutory factors considered as a
basis for subcategorization are discussed
in Section IV.C.2.f of the preamble and
in the Technical Development
Document.
b. What are the land application
effluent guidelines for all Large CAFOs
covered by Subparts C and D (beef,
dairy, heifer, swine, poultry, and veal)?
The ELGs described in this section
apply to all Large CAFOs covered by
Part 412, Subpart C (beef, dairy, and
heifer) and Subpart D (swine, poultry,
and veal). These BPT, BCT, BAT, and
NSPS requirements are being
established for the reasons discussed
below in this section, and consistent
with the factors for consideration under
the Clean Water Act, as discussed in
Sections II.A.2 and IV.C.2.f of this
preamble.
Today's final rule establishes
requirements to ensure the proper
application of manure, litter, and other
process wastes and wastewaters to land
under the control of Large CAFOs. The
ELGs established by this rule require
Large CAFOs to prepare and implement
a site-specific nutrient management
plan (described in detail in Section
IV.C.3), for manure, litter, and other
process wastewater applied to land
under their ownership or operational
control. In addition to preparing the
site-specific nutrient management plan,
and the recordkeeping and reporting
requirements described in Section IV.D,
Large CAFOs need to conduct the
following land application BMPs and
can use other BMPs that assist in
complying with the ELGs:
• Land-apply manure, litter, and
other process wastewaters in accordance
with a nutrient management plan that
establishes application rates for each
field based on the technical standards
for nutrient management established by
the Director.
• Collect and analyze manure, litter,
and other process wastewaters annually
for nutrient content, including nitrogen
and phosphorus. >
• At least once every five years,
collect and analyze representative soil
samples for phosphorus content from all
fields where manure, litter, and other
process wastewaters are applied.
• Maintain a setback area within 100
feet of any down-gradient surface
waters, open tile line intake structures,
sinkholes, agricultural well heads, or
other conduits to surface waters where
manure, litter, and other process
wastewaters are not applied. As a
compliance alternative, the CAFO may
elect to establish a 35-foot vegetated
buffer where manure, litter, or other
process wastewaters are not applied. For
further flexibility the CAFO may
demonstrate to the permitting authority
that a setback or vegetated buffer is
unnecessary or may be reduced.
• Periodically conduct leak
inspections of equipment used for land
application of manure, litter, or process
wastewater.
• Maintain on-site the records
specified in 40 CFR 412.3 7(c). These
records must be made available to the
permitting authority and the Regional
Administrator, or his or her designee,
for review upon request. Records must
be maintained for 5 years from the date
they are created.
Today's rule requires Large CAFOs to
determine and implement site-specific
nutrient application rates that are
consistent with the technical standards
for nutrient management established by
the permitting authority. Permitting
authorities have discretion in setting
technical standards that minimize
phosphorus and nitrogen transport to
surface water. Technical standards for
nutrient management should'
appropriately balance the nutrient needs
of crops and potential adverse water
quality impacts in establishing methods
and criteria for determining appropriate
application rates. The permitting
authority may use the USDA Natural
Resource Conservation Service (NRCS)
Nutrient Management Conservation
Practice Standard, Code 590, or other
appropriate technical standards, as
guidance for development of the
applicable technical standard. The
current NRCS Nutrient Management
technical standard describes three field-
specific risk assessment methods to
determine whether the land application
rate is to be based on nitrogen or
phosphorus, or whether land
application is to be avoided. These three
methods are: (1) Phosphorus Index; (2)
Soil Phosphorus Threshold Level; and
(3) Soil Test Phosphorus Level. The
permitting authority has the discretion
to determine which of these three
methods, or other State-approved
alternative method, is to be used.
The field-specific risk assessment
provides CAFOs with the information
needed to determine if manure nutrients
should be applied at a nitrogen or
phosphorus application rate, or if no
manure application is appropriate. In
today's rule, EPA clarifies that CAFOs
may apply conservation practices, best
management practices, or management
activities to their land application areas,
which in aggregate may reduce field
vulnerability to off-site phosphorus
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transport to surface Caters. This may
reduce the field-specific risk rating to a
level consistent withlmanure '
application at a nitroben rate in
accordance with the technical standard
established by the Director. ;
When establishing technical
standards for nutrient management; the
permitting authority also shall include .
appropriate flexibilities for any CAFO to
* implement nutrient management [
practices to comply with the standards.
Flexibilities should ipclude ;
consideration of multi-year phosphorus
application (also called phosphorus
banking) on fields that dp not have a
high potential for phosphorus runoff to
surface water, implementation of
phosphorus-based nutrient management
phased-in over time, and other ;
components as deter nined appropriate
by the Director. j
EPA recognizes that, under some:
conditions, CAFOs may experience
practical difficulties in applying manure
nutrients to fields at a low phosphorus
rate. Application equipment at.some
CAFOs may be unable to deliver the
small phosphorus amount needed by
crops in a single year. Thus, EPA is
clarifying in this rule that CAFOs may
elect to use a multi-year phosphorus
application rate in accordance with the
technical standards established by the
Director. A multi-year approach allows
a single application of phosphorus :
applied as manure at a rate equal to the
recommended phosphorus application
rate or estimated phosphorus removal in
harvested plant bioniass for the crop
rotation or multiple years in the crop
sequence. Crop rotations may vary in
length depending on the crops
produced, geographic area, and other
site-specific conditions. For example, a
two-year rotation may be common in
some areas, while a three-year rotation
may be more common in others. ;
Rotations involving grains or hays,;such
as alfalfa, may run for five or more
years. In other-instances, crops are
produced in a continuous cycle. Many
wastewater spray fields are permanently
in hay and grasses. In practice, multi-
year phosphorus applications typically
would be based on applying manure
nutrients at a rate achievable with a
CAFOs application equipment, and
determining the remloval rate in order to
calculate the length of time until the
next manure nutrient application
window. Thus, multi-year applications
may provide the phosphorus needed for
a few to many years! The field would
not receive additional phosphorus
applications until tne amount applied in
the single year had been removed \
through plant uptake and harvest. ,
However, under any multi-year
application, the rate at which manure
nutrients are applied would not exceed
the annual nitrogen recommendation of
the year of application. Nor would
application be made on sites determined
inappropriate based on a high potential
for phosphorus runoff to surface water.
The appropriateness of multi-year
phosphorus application would be based
on a field-specific risk assessment in
accordance with the technical standard
established by the Director.
What did EPA propose? The proposed
rule included ELGs that would have
required CAFOs to develop and submit
a certified Permit Nutrient Plan, which
would be reviewed annually and
recertified every five years, and would
have limited manure spreading on all
land owned or under the operational
control of the CAFO to the nitrogen-
based rate, unless soil or other field
conditions at the CAFO warranted
limiting the application rate to the more
stringent phosphorus-based rate. EPA
also proposed to require a series of land
application BMPs, including those
listed above in this section of the
preamble.
What were the key comments? EPA
received a number of comments
supporting the type and frequency of
manure, litter, process wastewater, and
soil sampling. Some commenters were
opposed to establishing the proposed
phosphorus-based standard in nutrient
management plans, while other
commenters stated that EPA should
establish phosphorus-based standards
for all CAFOs. In addition, some
commenters were opposed to the
inclusion of specific manure, litter, or
wastewater application rates in NPDES
permits, but supported the development
of site-specific rates in a nutrient
management plan.
EPA received many comments on the
requirement to prohibit land application
of manure, litter, and other process
wastewaters within a 100-foot setback.
Some commenters supported the 100-
foot setback; however, the majority of
commenters expressed opposition to
establishment of a setback, in many
cases stating that the setback restriction
will unnecessarily reduce the available
acreage for manure application and will
be costly to implement because of its
inflexibility. The commenters also
stated that it should be left to States or
a nutrient management planner to
determine whether a setback or
vegetated buffer is warranted, and to
determine the size of such areas. The
proposed rule considered allowing
CAFOs to establish a 35-foot vegetated
buffer strip as an alternative to the 100-
foot setback. Many commenters were in
favor of an approach that offers
flexibility to the CAFO and to the:
nutrient management planner to
incorporate site-specific considerations
while utilizing the maximum amount of
manurejnutrients on site. They
suggested that in cases where the
operation can demonstrate that manure
application will not affect surface water,
such as hvhen application occurs down-
gradient of the surface water, no setback
or buffer should be required.
The SEAR Panel noted the high cost
of phosphorus-based application.
relative ito nitrogen-based application
and supported EPA's intent to require
the use bf a phosphorus-based
application rates only where determined
necessaiy based on field-specific
conditions. According to the SBAR
Panel, it the soil is not phosphorus-
limited,' then nitrogen-based application
should be allowed. The SBAR Panel
recommended that EPA consider.
leaving jthe determination of whether to
require the use of phosphorus-based
rates to JBPJ and .that EPA work with
USDA in exploring such an approach.
Rationale. The nutrient-based '
limitations in this rule will reduce the
discharge of nitrogen, phosphorus, and
other pollutants in field runoff by
restricting the amount of manure,'litter,
and other process wastewaters that may
be applied to the amount that is
appropriate for agricultural purposes,
according to technical standards :
established by the permitting authority.
Application of manure, litter, and other
process^ wastewaters in excess of the
crop's nutrient requirements increases
the pollutant runoff from fields because
the crop does not need these nutrients,
increasing the likelihood of their being
released to the environment. In many
cases, the application of manure at a
nitrogen-based rate is consistent with
appropriate agricultural utilization of
nutrients. Soils are able to retain the
amounts of phosphorus that would be
applied, or other site-specific conditions
(e.g., the types of conditions assessed
through the phosphorus index
approach) are such that the runoff of
phosphorus and other pollutants or the
likelihood of the pollutants reaching
surface; waters are adequately
controlled.
. However, allowing all manure to be
spread |at the nitrogen-based application
rate may not always ensure appropriate
agricultural utilization of nutrients. In
areas that have high to very high
phosphorus buildup in the soils, .
allowing continued application at a
nitrogeji-based rate could allow for
continued discharge of phosphorus from
the CAjFO's cropland and consequently
may not adequately control phosphorus
discharges from these areas. In addition,
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7211
EPA believes that in some instances
phosphorus levels in soils are so high,
or site-specific conditions (e.g., highly
erodible soils) are such that any
application of manure, litter, or other
process wastewaters would be
inconsistent with appropriate
agricultural utilization of nutrients and
would lead to excessive levels of
nutrients and other pollutants in runoff.
EPA expects that these factors will be
taken into account as State permitting
authorities develop appropriate
technical standards for the land
application of manure by CAFOs.
The trace metals present in animal
wastes, when applied to fields at either
nitrogen- or phosphorus-based rates, are
made available to plants in sufficient
quantities that they provide many of the
micronutrients necessary for proper
plant growth. Excessively high levels of
these trace metals, however, can inhibit
plant growth. By limiting manure
applications to the nitrogen- or
phosphorus-based rate, CAFOs will also
be limiting the rate at which metals are
applied to fields and thus reduce the
potential for applying excessive
amounts of the trace metals.
Nitrogen-based application rates are
generally based on the following factors:
(1) The nitrogen requirement of the crop
to be grown based on the operation's
soil type and crop; and (2) realistic crop
yields that reflect the yields obtained for
the given field in prior years or, if not
available, from yields obtained for the
same crop at nearby farms or county
records. Once the nitrogen requirement
for the crop is established, the manure
application rate is generally determined
by subtracting any other sources of
nitrogen available to the crop from the
crop's nitrogen requirement. These
other sources of nitrogen can include
residual nitrogen in the soil from
previous applications of organic
nitrogen, nitrogen credits from previous
crops of legumes and crop residues, or
applications of commercial fertilizer,
irrigation water, and bipsolids.
Application rates are based on the
nitrogen content in the manure and
should also account for application
methods, such as incorporation, and
other site-specific practices.
Phosphorus-based application rates
generally take into account the
phosphorus requirements of the crop, as
well as the amount of phosphorus that
will be removed from the field when the
crop is harvested. EPA expects that
State standards will generally provide
CAFOs the flexibility to determine,
separately for each field, whether
manure is to be applied at the nitrogen-
or the phosphorus-based application
rate. Thus, EPA expects that as the ELG
requirements are implemented, some
CAFOs will be able to apply manure at
the nitrogen-based rate for all of their
fields; some CAFOs will be limited to
the phosphorus-based rate on all of their
fields; and the remaining CAFOs will
have some fields that are limited to the
phosphorus-based rate and some fields
where manure can be applied at the
nitrogen-based rate. In making these
field-specific determinations, CAFOs
must use the method authorized by the
permitting authority.
Today's rule specifies that manure,
litter, or other process wastewaters are
not to be applied within 100 feet of any
down-gradient surface waters, open tile
line intake structures, sinkholes,
agricultural well heads, or other
conduits to surface waters. As a
compliance alternative to the 100-foot
setback, the CAFO may elect to establish
a 35-foot vegetated buffer where
application of manure, litter, and other
process wastewaters are not applied; or
may demonstrate to the permitting
authority that a setback or vegetated
buffer is unnecessary or may be reduced
because implementation of alternative
conservation practices or site-specific
conditions will provide pollutant
reductions equivalent to or better than
the reductions that would be achieved
by the 100-foot setback.
A setback is an area where manure,
litter, or other process wastewaters are
not applied, but crops may continue'to
be grown. The transport of nutrients and
other pollutants in manure to surface
waters and the rate at which transport
occurs is dependent on the land use,
geography, topography, climate, amount
and method of manure application, and
the nature and density of vegetation in
the area. The setback achieves pollutant
reductions by increasing the distance
pollutants from the land application of
manure, litter, or other process
wastewaters have to travel to reach
surface waters. The setback
requirements established by this rule
will minimize the potential runoff of
pathogens, hormones such as estrogen,
and metals and reduce the nutrient and
sediment runoff.
Because a setback may not be the
most cost-effective practice to control
runoff in all cases, this rule includes a
compliance alternative that allows the
CAFO to establish a 35-foot vegetated
buffer in lieu of the 100-foot setback A
vegetated buffer is a permanent strip of
dense perennial vegetation, where no
crops are grown, that slows runoff,
increases water infiltration, absorbs
nutrients, and traps pollutants bound to
sediment. The vegetated buffer is more
effective (on a per-foot of width basis)
than the setback at reducing pollutant
runoff, therefore the compliance
alternative allows the buffer width to be
smaller than the setback. Both
approaches are expected to achieve
comparable pollutant reductions. (EPA
decided not to require all fields
receiving manure, litter, or other process
wastewaters to have a vegetated buffer
because that would unnecessarily
require CAFOs to take that portion of
the cropland out of production.)
The setback requirements included in
today's rule contain an additional
compliance alternative that allows the
CAFO to implement alternative
conservation practices that will provide
pollutant reductions equivalent to or
better than the 100-foot setback. In some
cases, the CAFO may be able to
demonstrate to the permitting authority
that no setback is necessary based on
site-specific conditions, such as when
the surface water is located up-gradient
from the~area of manure application.
Manure must be sampled at least once
per year and analyzed for its nutrient
content, including nitrogen and
phosphorus. EPA believes that annual
sampling of manure is the minimum
frequency to provide the necessary
nutrient content on which to establish
the appropriate application rate. The
nutrient composition of manure varies
widely among farms because of
differences in animal species and
management, and manure storage and
handling practices. The only method
available for determining the actual
nutrient content of manure for a
particular operation is laboratory
analysis. If the CAFO applies its manure
more frequently than once per year, it
may choose to sample the manure more
frequently. Sampling the manure ;as
close to the time of application as :
practical provides the CAFO with a
better measure of the nitrogen content of
the manure. Generally, nitrogen content
decreases through volatilization during
manure storage when the manure is
exposed to air. All CAFOs must collect
and analyze soil samples for
phosphorus at least once every 5 years
from all fields under their control that
receive manure. Soil tests are an
important tool to determine the crop
phosphorus needs and to determine the
optimum application rate. Crop rotation
cycles vary, and State programs require
soil sampling at varying frequencies that
in many cases are tied to the soil type.
EPA requires soil sampling at least once
every 5 years to correspond with the
permit cycle for CAFOs, although States
may require more frequent sampling.
Without manure and soil analyses,
CAFOs might apply more commercial
fertilizer than is needed or spread too
much manure on their fields. Either
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7212 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and'Regulations
practice can result in overfertilizatipn,
affecting crop yields jand increasing the
pollutant runoff from fields. ,
Records of the application of manure
and wastewater must be maintained on
site. These records are: (1) The expected
crop yields; (2) the date manure, litter,
or process wastewater is applied to'each
field; (3) the weatheij conditions at the
time of application and 24 hours before
and after application; (4) test methods
used to sample and analyze manure,
litter, process wastewater, and soil;; (5)
results from manure
and soil sampling;
(6) explanation of the basis for
determining manure)application rates,
as provided in the technical standards
established by the Director; (7) the
calculations showing the total nitrogen
and phosphorus to b'e applied to each
field, including sources other than ;
manure,-litter, or process wastewatpr;
(8) total amount of nitrogen and
phosphorus actually applied to each
field, including documentation of ;
calculations of the total amount applied;
(9) the method used to apply the
manure, litter, or process wastewater;
and (10) dates of manure application
equipment inspectio'n. Crop yields and
the manure and soil (testing data, as well
as records on applications conducted in
previous years, are used to determine
whether to apply manure on a nitrogen
or phosphorus basis and the amount of
nutrients to be applied. The CAFO jand
the permitting authority will use the
remaining land application records to
track the amount of nutrients applied
and to ensure that application occurs
consistent with the nutrient
management plan. ;
EPA believes the land application
rates, the 100-foot setback (or the use of
equivalent practices! authorized by the
compliance alternative), and the other
land application BMPs included in this
rule will ensure that manure, litter, and
other process wastewaters are applied in
a manner consistent with appropriate
agricultural utilization of the nutrients
in manure, litter, and other process
wastewaters. Effluent limitations in the
form of BMPs are particularly suited to
the regulation of GAOFOs. For many
CAFOs, controlling discharges to ;
surface waters is largely associated with
controlling storm w^ter. Storm water
discharges can be highly intermittent,
are usually characterized by very high
flows occurring over relatively short
time intervals, and carry a variety of
pollutants whose nature and extent vary
according to geography and local land
use. Water quality impacts, in turn, also
depend on a wide range of factors,
including the magnitude and duration
of rainfall events, th!e time period ,
between events, soil conditions, the
fraction of land that is impervious to
rainfall, other land use activities, and
the ratio of storm water discharge to
receiving water flow. CAFOs are
required to apply their manure, litter,
and other process wastewaters to land
in accordance with the site-specific
nutrient management practices that
ensure appropriate agricultural
utilization of the nutrients in the
manure, litter, and other process
wastewaters. The manure provides
nutrients, organic matter, and
micronutrients, which are very
beneficial to crop production when
applied appropriately. The amount or
rate at which manure can be applied
that ensures appropriate agricultural
utilization of nutrients varies based on
site-specific factors at the CAFO. These
factors include the crop being grown,
the expected crop yield, the soil types
and soil concentration of nutrients
(nitrogen and phosphorus), and the
amount of other nutrient sources to be
applied. For these reasons, EPA has
determined that relying exclusively on
numeric ELGs to control these
discharges is infeasible. EPA has
determined that the BMPs specified in
today's rule represent the minimum
elements of an effective BMP program
and are necessary to control point
source discharges to surface water. In
this rule, EPA is promulgating only
those BMPs that are appropriate on a
nationwide basis, while giving States
and permittees the flexibility to
determine the appropriate practices at a
local level to achieve the effluent
limitations. The BMPs included in this
rule are necessary to ensure appropriate
agricultural utilization of nutrients in
manure, litter, and other process
wastewater.
EPA rejected establishing national
requirements in this rule that would
prohibit manure application to frozen,
snow-covered, or saturated ground. As
envisioned, the prohibition considered
(but also rejected) at the time of
proposal would have required CAFOs to
install sufficient storage capacity to hold
manure for the period of time during
which the ground is frozen, snow-
covered, or saturated. According to
EPA's analyses, to meet such a
requirement CAFOs in some areas, such
as northern States, would need to be
able to store manure, litter, and other
process wastewaters for up to 270 days,
depending on 'the amount of
precipitation and severity of winter. In
practice, such .a prohibition could result
in some facilities needing storage to
hold manure and wastes for 12 months
to allow for spreading manure at times
that coincide with crop growing
periods^.
EPA tejected establishing these
requirements in the final ELGs because
pollutant runoff associated with the
application of manure, litter, or other
process, wastewaters on frozen, sriow-
covered, or saturated ground is
dependent on a number of highly .site-
specific variables, including climate and
topographic variability, distance to
surfacelwater, and slope of the land.
Such variability makes it difficult to
develop a national technology-based
standard that is reasonable and does not
impose unnecessary cost on CAFO
operatcjrs. Further, given the site-
specific nature of the cropland arid
runoff characteristics, quantifying the
pollutant reduction associated with
these requirements is difficult and
imposing such requirements through a
national regulation could divert
resources from other technologies and
practices that are more effective.
Therefore, EPA believes that
requirements limiting the application of
manure, litter, or other process
wastewaters to frozen, snow-covered, or
saturated ground are more appropriately
addressed through NPDES permit limits
established by the permitting authority.
Although EPA has decided not to
include requirements limiting the
application of manure, litter, or other
process wastewaters to frozen, snow-
covered, or saturated ground in today's
rule, the permitting authority retains the
authority and is encouraged to include
these types of requirements as
technology-based standards using BPJ in
NPDES permits as appropriate.
EPAjis establishing provisions at 40
CFR 122.42(e) for permitting authorities
to include in NPDES permits a
requirement for the CAFO to develop
and implement a nutrient management
plan. Under these provisions, NPDES
permits are to include prohibitions,
practices, and procedures to achieve
compliance with 40 CFR part 412, when
applicable, or effluent limitations based
on BPj!when 40 CFR part 412 does not
apply, i
As discussed above in this section
and inlsection IV.C.3, today's rule
requires CAFOs to develop and ;
implement a nutrient management plan.
For Large CAFOs, this requirement is
reflected in the effluent guideline as the
BPT/BpT/BAT/NSPS limitations on
land application discharges (see 40 CFR
412.4(c)). Other CAFOs are also subject
to the requirement to develop and
implement a nutrient management plan
(see 4CJ CFR 122.42(e)(l)), although the
permitting authority would establish
precise elements of the plan, such as
manure application rates, on a BPJ basis.
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7213
For the reasons detailed below, EPA has
concluded that there are certain
constraints, including currently
insufficient infrastructure capacity, that
prevent Large CAFOs (except new
sources) from being able to develop and
implement the land application BMPs,
including the nutrient management
plan, by the date they will need to seek
permit coverage under the requirements
of this rule. Therefore, the ELGs
promulgated today require Large CAFOs
that are existing sources to implement
the land application requirements at 40
CFR 412.3(c) by December 31, 2006
because that is the date when EPA is
assured that the required planning is in
fact available to the large number of
regulated sources and, therefore,
becomes BPT/BCT/BAT. (EPA has
similarly concluded that Small and
Medium CAFOs subject to the NPDES
provisions for nutrient management
plans also will be unable to develop and
implement a nutrient management plan
by the date they will need to seek
NPDES permit coverage under the
requirements of this rule, for reasons of
insufficient infrastructure. Therefore,
EPA is requiring Small and Medium
CAFOs that are existing sources to
develop and implement nutrient
management plans by December 31,
2006.) For all CAFOs that are new
sources (i.e., Large CAFOs constructed
after the effective date of this rule), the
land application requirements at 40 CFR
412.4(c) apply immediately, as
discussed furdier below.
Nutrient management plans are
complex documents and their
preparation requires knowledge in a
number of areas. To adequately address
the requirements established by today's
rule, the nutrient management plan
should be prepared by individuals
(either CAFO owners and operators, or
their technical consultants) who are
competent in or have an understanding
of a number of technical areas,
including soil science and soil fertility,
nutrient application and management,
crop production, soil and manure
testing and results interpretation,
fertilizer materials and their
characteristics, BMPs for the
management of nutrients and water, and
applicable laws and regulations.
Because of this, EPA believes it is
reasonable to anticipate that many
CAFOs will choose to acquire the
services of consultants with the
technical expertise to prepare nutrient
management plans and make
recommendations regarding the
implementation of the land application
BMPs (e.g., whether to use one of the
authorized compliance alternatives in
lieu of the setback requirements; options
for reducing the nutrient content of
manure, such as treatment or alternative
feeding strategies; modifications to
cropping strategies and land application
practices).
Furdier, while the provisions of
122.42(e)(l) and 412.4(c)(l) do not
specifically require nutrient
management plans to be prepared or
reviewed by certified experts, EPA
recognizes that USDA, and other
organizations such as the American
Society of Agronomy, Crop Science
Society of America, Soil Science Society
of America, and a number of land grant
universities, recommend that nutrient
management plans be prepared by
trained and certified specialists. USDA
has published technical guidance that
calls for the development of CNMPs and
details the specific components and
considerations that should be addressed
during CNMP development. The
Unified AFO Strategy, developed jointly
by USDA and EPA, defines a national
objective for all AFOs to develop
CNMPs to ensure appropriate
agricultural utilization of nutrients. (The
vast majority of these CNMPs will be
developed under voluntary programs.)
EPA is not requiring CAFOs to use
certified experts in preparing the
nutrient management plans and is not
requiring CAFOs to develop CNMPs, but
the regulatory requirements for nutrient
management plans are designed to
dovetail with USDA standards for
CNMPs so that CAFOs can meet EPA's
nutrient management plan requirements
and USDA's CNMP objectives in a
single undertaking. It is therefore
reasonable to expect that many CAFOs
will opt to have their nutrient
management plans prepared by certified
specialists, an outcome that EPA
encourages.
As discussed in more detail below,
EPA interprets Section 301(b)(2) of the
CWA to require that, for any effluent
guideline promulgated, or any
technology-based limitation established
on a BPJ basis, after March 31, 1989, a
discharger must achieve immediate
compliance with the BPT/BCT/BAT
effluent limitations upon issuance of the
discharger's NPDES permit. With
imposition of the nutrient management
plan requirement, there may be a large
number of CAFOs that are all trying to
develop plans at the same time. Yet,
there is a limited pool of certified
preparers and other technical experts
that are available nationwide to develop
nutrient management plans and CNMPs.
It is reasonable to recognize that Large
CAFOs (and Small and Medium
CAFOs), along with AFOs, could be
competing for the services of the
certified preparers and other technical
experts. EPA estimates there are
approximately 15,500 CAFOs, including
11,000 Large CAFOs, and 222,000
AFOs. AFOs are not required to prepare
CNMPs, but their access to sources of
public funds, such as EQJP, may be
contingent on their adherence to NRCS
technical standards, including
preparation of a CNMP. Thus,
additional time is needed for
development and implementation of the
plan.
Another aspect that prevents CAFOs
from immediately complying with the
land application BMPs is the need for
States to ensure that they have
established appropriate technical
standards that CAFOs will use to
determine the appropriate application
rates for their fields. These standards
must be a part of the State NPDES
permitting program revisions discussed
in Section V.C of this preamble. In
addition, CAFOs will need some time to
determine whether they have sufficient
cropland for applying all of the
nutrients contained in the manure,
litter, and other process wastewaters
that they generate. If they determine that
they have excess nutrients, the CAFOs
will need to identify alternatives for
reducing the nutrient content, or seek
markets for the excess nutrients such as
off-site cropland, centralized processing
facilities (e.g., pelletizing plants,
centralized anaerobic digester-based
power generation facilities), or other
solutions. These activities cannot
logically commence until the CAFO has
developed the plan and knows what its
allowable manure application rate is.
EPA considered whether CAFOs
should be required to implement certain
elements of the land application BMPs
in advance of preparing a nutrient
management plan, but rejected doing so
because the elements of the land
application BMPs are inseparably linked
togetiier. The nutrient management plan
is the tool CAFOs must use to assess soil
and other field conditions at their
operation, in conjunction with manure
characterization data and crop rotations
and yield projections, to determine the
site-specific nitrogen or phosphorus-
based rate at which manure, litter, and
other process wastewaters are to be
applied. The proper application rate can
not be reasonably determined without
first preparing the nutrient management
plan. CAFOs will also use their nutrient
management plan to inform their
decision making on whether to comply
with the provisions at 412.4(c)(5) by
establishing the 100-foot setback on
their fields or to instead select one of
the compliance alternatives authorized
by those provisions. EPA has also
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7214 Federal Register/Vol. 68, No. 29 / Wednesday, February 12, 2003/Rjiles and Regulations
determined that requiring manure and
soil sampling and the record-keeping
requirements included in 412.37(c) in
advance of preparing and implementing
the nutrient management plan would
impose an unnecessary burden on
CAFOs because, in the absence of a
nutrient management plan that
determines the appropriate application
rates, these elements will not directly
establish that macjure will be applied in
a manner that ensures appropriate
utilization of nutrients. (Some of these
actions, such as manure and soil
sampling, may well be undertaken by
the CAFOs as they develop their,
nutrient management plans, but EPA
determined it wasj unnecessary for the
regulation to impose these requirements
in advance of nutrient management plan
development and implementation.)
The land application BMPs, including
the requirement to develop and
implement a nutrient management plan,
will immediately 'apply to all Large
CAFOs who commence construction
after the effective jdate of this rule (i.e.,
new sources). Secjtion 306(b)(l)(B)
specifies that new source performance
standards shall become effective upon
promulgation. New sources engage in
extensive site selection, facility design,
and construction activities prior: to
commencing operations. Aspects
addressed during this phase include
location considerations (e.g., climate
and topographical factors), facility
design variables to optimize the
production process, and waste
management considerations including
the identification of optimal waste
handling practices (e.g., waste collection
methods, the use of topographical
elevation changes to facilitate waste
handling) and disposal options (e.g., on-
site application ojn cropland, shipment
to off-site markets). These activities
undertaken by new sources prioir to
commencing construction are highly
technical in nature, and CAFOs will
typically engage the services of a
number of consultants. While CAFOs
are expected to engage the services of
technical consultants to develop the
nutrient management plans required by
this rule, the analyses embodied within
the nutrient management plan will not
significantly addjto the scope of
analyses new sources will engage in
prior to commencing operations.
EPA has considerable discretion
under CWA section 304(b)(2) to'
determine whether and when a;
particular technology or process is BPT,
BCT, or BAT. EPA also has broad
authority to interpret CWA section 301.
In E.I. du Pontde Nemours &• Co. v.
Train, 430 U.S. 1J12 (1977), the Supreme
Court accorded ereat deference to EPA
in promulgating effluent limitations
guidelines as regulations under section
301, noting that "[CWA Section] 101(d)
requires us to resolve any ambiguity on
this score in favor of the
Administrator." Id. at 128. The Supreme
Court also found that section 501(a)
supports EPA's broad use of its
regulatory authority to implement
section 301. Id. at 132. EPA believes that
its decision to promulgate the land
application BMPs, including the
nutrient management plans, with a
future date for implementation is
authorized by sections 301 and 304.
Section 301(b)(2) in particular directs
EPA to promulgate ELGs that, within
the constraints of economic
achievability, "will result in reasonable
further progress toward the national
goal of eliminating the discharge of all
pollutants." Section 301(b)(2)(A).
EPA is aware that CWA sections
301(b)(2)(C) & (D) require ELGs to be
achieved "in no case later than three
years after the date such limits are
promulgated under section 304(b), and
in no case later than March 31,1989."
This language does not speak to the
precise question EPA confronts here:
whether EPA can promulgate ELGs that
are phased in over time. In this case, for
the reasons discussed above, while EPA
believes that the requirement to develop
and implement a nutrient management
plan will be an "available" technology
in the near future, it is not now
available for the large number of CAFOs
subject to today's rule. For this reason,
EPA is, in essence, today promulgating
what will be the available technology
for the future, similar to what the
Agency did for the pulp & paper effluent
guideline. See 63 FR 18604 (Apr. 15,
1998). EPA is specifying the future date
of December 31, 2006 because that is the
date by which it predicts that sufficient
capacity and capability to develop and
implement a nutrient management plan
and associated BMPs will be available to
the great number of regulated sources.
The availability of technical experts,
including certified preparers, is a
critically important component of the
planning requirement, and in a sense is
itself the technology basis for that BPT/
BCT/BAT limitation. The Clean Water
Act requires compliance with a
promulgated ELG—e.g., to develop a
nutrient management plan—only once
the technology ripens as the basis for
that ELG, in this case as an available
technology. While EPA is promulgating
the nutrient management plan
requirement as BPT/BCT/BAT in this
rulemaking, EPA's record indicates that
it may not truly be available for the
subcategory as a whole until December
31, 2006.
c. What are the production area
requirements for all existing and new
Large beef, dairy, and heifer CAFOs
(Part^412, Subpart C)? In today's final
rule, iconsistent with the 1974 ELG
regulation, EPA is continuing to
establish BMPs for the CAFO
production area, which includes the
animjal confinement areas and the.
manure storage and containment areas.
Thes|e BPT, BCT, BAT, and NSPS
requirements are being established for
the reasons discussed in this section,
and consistent with the factors for
consideration under the Clean Water
Act, as discussed in Sections II.A.2 and
IV.CJ2.f of this preamble.
EPA is largely retaining the current
effluent guidelines that apply to beef
and dairy operations, and adding
language extending these requirements
to heifer-raising operations, These
regulations, which are codified at 40
CFRjPart 412, Subpart C, prohibit the
discharge of manure, litter, and other
• process wastewaters, except for
allowing discharge when rainfall causes
an overflow from a facility designed,
maintained, and operated to contain all
manure, litter, and process wastewaters,
including storm water, plus runoff from
the 25-year, 24-hour rainfall event. In
addition, today's rule requires Large
CAFps to comply with the following
BMPs:
• Perform weekly inspections of all
storm water diversion devices, runoff
diversion structures, animal waste
storage structures, and devices
channeling contaminated storm water to
the ijvastewater and manure storage and
containment structure;
• Perform daily inspections of water
lines, including drinking water or
cooling water lines;
• 'install depth markers in all surface
andjliquid impoundments (e.g., lagoons,
ponds, tanks) to indicate the design
volume and to clearly indicate the
minimum capacity necessary to contain
the 25-year, 24-hour rainfall event,
including additional freeboard
requirements;
• ! Correct any deficiencies found as a
result of daily and weekly inspections
as soon as possible;
• JDo not dispose of mortalities ;in
liquid manure or process wastewater
treatment systems, and mortalities must
be handled in such a way as to prevent
discharge of pollutants to surface water,
unless alternative technologies
implemented under alternative
performance standards are designed to
handle mortalities; and
• i Maintain on-site a complete copy of
the records specified in 40 CFR
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7215
412.37(b) and [c). These records must be
available to the permitting authority and
the Regional Administrator, or his or her
designee, for review upon request.
Records must be maintained for 5 years
from the date they are created.
What did EPA propose? EPA
proposed to establish effluent guidelines
that include the requirements
promulgated in today's rule, and that
would also have required all Large beef
and dairy CAFOs (including heifers) to
prevent discharges to the ground water
beneath the production area (animal
confinement areas, manure stockpiles,
and impoundments) where there is a
direct hydrologic connection to surface
waters.
What were the key comments? EPA
received numerous comments on the
proposed inclusion of ground water
monitoring and protection requirements
for beef and dairy CAFOs. Many
commenters opposed the proposed
ground water requirements, stating that
EPA lacks the authority to regulate
ground water contamination in this rule
and that the cost to comply with the
proposed requirements would threaten
the viability of these operations. The
commenters also felt that EPA would
need to define the term "direct
hydrologic connection to surface water"
if ground water requirements were to be
implemented. EPA also received
comments supporting the inclusion of
ground water requirements in this rule,
arguing that individual State programs
are not always protective of these types
of discharges.
EPA received a number of comments
suggesting the rule should allow for less
frequent inspections of the production
area; should establish effluent
limitations that would allow CAFOs to
discharge treated manure, litter, and
process wastewaters (as opposed to the
requirements in the 1974 ELGs based on
the containment of these wastes); and
should allow CAFOs to dispose of
mortalities in surface impoundments
designed for that purpose. Other
commenters stated that EPA should
retain the existing zero discharge
requirement established by the 1974
ELGs and should not allow CAFOs to
discharge the wastes they currently
must contain, even if the wastes are
treated before being discharged.
Rationale. The production area
requirements established today for Large
beef, dairy, and heifer CAFOs will
provide effective control of discharges
of manure and other process
wastewaters to surface water. These
requirements are widely demonstrated
as achievable and are in use at most
beef, dairy, and heifer CAFOs and the
containment requirements included in
this rule have been applicable to Large
CAFOs since they were promulgated in
the 1974 ELGs. Furthermore, USDA and
ASAE cite the 25-year, 24-hour rainfall
event as part of the standard to which
storage structures should be
constructed.
CAFOs must properly design, operate,
and maintain storage structures to
contain all manure, litter, and process
wastewater including the runoff from a
25-year, 24-hour rainfall event. The
determination of the necessary storage
volume should reflect the maximum
length of time anticipated between
emptying events. The design storage
volume must reflect manure,
wastewater, and other wastes
accumulated during the storage period;
normal precipitation less evaporation on
the surface area during the entire storage
period; normal runoff from the facility's
drainage area during the storage period;
25-year, 24-hour precipitation on the
surface (at the required design storage
volume level) of the facility; 25-year,
24-hour runoff from the facility's
drainage area; residual solids after
liquids have been removed; necessary
freeboard (USDA's Natural Resources
Conservation Service (NRCS)
recommends a minimum of 1 foot of
freeboard); and, in the case of treatment
lagoons, a minimum treatment volume
necessary to allow anaerobic treatment
to occur. Additional storage may also be
required to meet management goals or
other regulatory requirements. For
example, if the permitting authority
needs further controls to assure
compliance with site-specific water
quality standards. EPA encourages
CAFOs to consider relevant ASAE and
NRCS standards as one method to
ensure appropriate design and
construction.
CAFOs should actively operate and
maintain the manure storage structure,
including solids removal or dewatering
when appropriate, to retain the capacity
for the 25-year, 24-hour rainfall event.
Recent studies suggest proper operation
and maintenance will prevent most, if
not all, overflows and discharges from
manure storage areas. One recent study
from Iowa State University suggested 76
percent of earthen manure structures
lacked appropriate accompanying
management and maintenance
activities. Another study in North
Carolina stated more than 90 percent of
violations were attributed to operation
and management deficiencies. Other
studies also list typical shortcomings as
including: car.eless transfer of manure to
application equipment; improper
manure agitation practices; inadequate
controls to prevent burrowing animals
and plants from eroding the storage
berms and sidewalls; lack of routine
inspection of land application and
dewatering equipment during lagoon
drawdown; and infrequent visual
confirmation of adequate freeboard.
Therefore, this rule establishes certain
record keeping requirements that
document the design basis for the.
structures, inspection and other
maintenance activities related to the
operation of the structures, and any
overflows that occur. These records will
help the CAFO operator to demonstrate
that any overflows that do occur are
consistent with the proper operation <
and maintenance of storage structures
designed to contain all process
wastewater, including the runoff from a
25-year, 24-hour rainfall event.
Although most CAFOs already have
containment structures properly sized to
contain their process wastes and the
contributions from rainfall up to a 25-
year, 24-hour rainfall event, many of
these operations are not properly
maintaining their systems to retain the
capacity for such a rainfall event..
Therefore, today's rule specifies that
surface and liquid impoundments (e.g.,
lagoons, ponds, and tanks) are required
to have depth markers installed. The
depth marker indicates the maximum
volume that should be maintained
under normal operating conditions
allowing for the volume necessary to
contain the 25-year, 24-hour rainfall
event. Without such a depth marker, a
CAFO operator might allow lagoons and
other impoundments to fill to a level
such that the capacity to contain the
direct precipitation and runoff from a
25-year, 24-hour rainfall event is not
maintained, leading to overflows that
are inconsistent with the proper
operation and maintenance of the
system. In addition, closed or covered
liquid impoundments are required to
have depth markers installed to
properly maintain these storage systems,
such that dry weather discharges do not
occur. Depth markers are necessary
tools that allow operators to actively
manage (e.g., dewater, remove solids)
the liquid levels in their impoundments
and ensure that adequate capacity is
retained for the 25-year, 24-hour rainfall
event. Remote sensors can also be used
to monitor liquid levels in lagoons and
impoundments. This sensor technology
can be used to monitor changes in
liquid levels, either rising or dropping
levels. These sensors can also trigger an
alarm when the level is changing
rapidly or when the liquid level has
reached a critical level. The alarm can
transmit to a wireless receiver to alert
the CAFO owner or operator and can
also alert the permitting authority;. The
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7216 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
advantage of this type of system is the
real-time warning it can provide the
CAFO owner or operator that a lagoon
or impoundment is in danger of |
overflowing. It can' provide the CAFO
operator an opportunity to better
manage operations and prevent
catastrophic failures. These sensors are
more expensive than depth markers;
however, the added assurance they
provide in preventing catastrophic
failures might make them attractive to
some operations. I j
Today's rule prohibits the disposal of
dead animals in any liquid
impoundments or Jagoons and requires
operations to handle dead animaljs in
ways that prevent contributing
pollutants to waters of the United
States, except as provided for.by '
alternative performance standards using
technologies designed to handle
mortalities. Improper disposal of,
mortalities can lead to surface or ground
water contamination, or both, as well as
noxious odors and| the potential for
disease transmission by scavengers and
vermin. Historically, burial was the
most common method of carcass ;
disposal, but it is now prohibited in
many States. By prohibiting the disposal
of dead animals ml liquid
impoundments, this rule will eliminate
the discharge of pollutants from
carcasses in overflows and in the; runoff
from land application areas.
Weekly inspections ensure that any
storm water diversions at the
production area, such as roof gutters or
any devices that channel storm water to
the wastewater and manure storage and
containment structure, are free frpm
debris. Daily inspections of the
automated systems providing water to
the animals ensure they are not leaking
or spilling, which py increasing the rate
at which process wastewater is ,
generated can lead to discharge of
pollutants to surfajce water. The manure
storage or treatment facility must be
inspected weekly to ensure structural
integrity. For surface and liquid
impoundments, me berms must be
inspected for leaking, seepage, wind or
water erosion, excjessive vegetation,
unusually low or high liquid levels,
reduced freeboardj, depth of the manure
and process wastejWater in the ,
impoundment as indicated by the depth
marker, and other [signs of structural
weakness. EPA believes these
inspections are necessary to ensure
proper maintenance of the production
area and prevent discharges of manure,
litter, and other process wastewater to
surface waters. | |
Records of these inspections must be
maintained on-site, as well as records
documenting any problems noted and
I i
corrective actions taken, the design
basis for the structures, and the
estimated volume of any overflows that
occur. The depth of all liquid manure
storage impoundments must be noted
during each week's inspection.
Production area inspection data allow
operators to actively manage and
maintain their surface and liquid
impoundments to ensure the structural
integrity ,of the system and avoid
catastrophic failure of such systems.
These records also assist the CAFO
operator to minimize discharges to the
extent possible and demonstrate that
any overflows that do occur are
consistent with tlje proper operation
and maintenance of storage structures to
contain all process wastewater
including the runoff from a 25-year,
24-hour rainfall event.
As with the land application
requirements, effluent limitations in the
form of BMPs are particularly suited to
the regulation of CAFOs. For many
CAFQs, controlling discharges to
surface waters is largely associated with
controlling runoff and controlling
overflows from manure storage
structures. CAFO runoff can be highly
intermittent and is usually characterized
by very high flows occurring over
relatively short time intervals; Whether
the runoff or overflow will lead to a
discharge, as well as the volume of any
discharge that does occur and the nature
of the pollutants present in the
discharge, can vary substantially
depending on the operating practices
and physical characteristics of the
operation (e.g., paved vs. unpaved
surfaces, manure handling practices,
climate, amount of area exposed to the
precipitation). For these reasons, EPA
has determined that relying exclusively
on numeric ELGs to control these
discharges is infeasible.
EPA believes the production area
BMPs included in this rule are
necessary to.ensure proper maintenance
of the production area and prevent
discharges, except whenever
precipitation causes an overflow of
process wastewater from a facility
designed, constructed, and operated to
contain all manure, litter, and process
wastewaters plus the runoff frpm a
25-year, 24-hour rainfall event. There
are numerous reports of operations
discharging pollutants from the
production area during dry weather;
discharges from CAFOs that failed to
maintain the required storage capacity
to contain the 25-year, 24-hour rainfall;
and instances of leakage and
catastrophic failure of lagoons and other
manure storage structures. Information
in the record for this rule indicates that
many of the discharges could have been
avoided if CAFOs had practiced the
BMPs in this rule frequently enough to
detect and correct discrepancies before
they led to discharges.
The proposed rule would have
imposed explicit national requirements
for certain CAFOs to address possible
discharges to surface water via ground
water's that have a direct hydrologic
connection to surface waters. These
operations would have been required to
sample groundwaters to demonstrate
that there is no discharge through a
direct hydrologic connection to surface
waterb, unless they determined tq the
satisfaction of the permitting authority
the absence of a direct hydrologic
connection. Where a direct hydrologic
connection to surface waters exists,
controls on discharges to groundwater
would have been required.
In today's effluent limitation
guidelines, EPA is rejecting establishing
requirements related to discharges to
surface water that occur via ground
water! with a direct hydrologic
connection.
Pollutant discharges from CAFOs to
surface water via a groundwater
pathvy-ay are highly dependent on site-
specific variables, such as topography,
climate, distance to surface water, and
geologic factors such as depth of
groundwater, soil porosity and
permeability, and subsurface structure.
The factors affecting whether such
dischjarges are occurring at CAFOs are
so variable from site to site that a
national technology-based standard is
inappropriate. Further, given the site-
specific nature of these situations:,
quantifying the pollutant reduction
associated with nationally-established
requirements would be difficult.
Imposing requirements through a
national ELG could divert resources
from other technologies and practices
that are more effective at controlling
CAFO discharges to surface waters.
Therefore, EPA believes that
requirements limiting the discharge of
pollutants to surface water via
groundwater that has a direct hydrologic
connection to surface water are beyond
.the scope of today's ELGs.
Furthermore, EPA recognizes there
are scientific uncertainties and site-
specific considerations with respect to
regulating discharges to surface water
via groundwater with a direct
hydrologic connection to surface water.
EPA 'also recognizes there are
conflicting legal precedents on this
issue. Nothing in this rule shall be
construed to expand, diminish, or
otherwise affect the jurisdiction of the
Clean Water Act over discharges to
surface water via groundwater that has
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Federal Register/Vol. 68, No. 29 / Wednesday, February 12, 2003/Rules and Regulations 7217
a direct hydrologic connection to
surface water.
At the time of proposal, EPA
considered, but rejected, requiring
CAFOs to sample surface waters
adjacent to feedlots and/or land under
control of the feedlot to which manure
is applied. This option would have
required CAFOs to sample surface
waters both upstream and downstream
from the feedlot and land application
areas following significant rainfall. In
this final rule, EPA is continuing to
reject imposing surface water
monitoring requirements on CAFOs
through the effluent guidelines because
of concerns regarding the difficulty of
designing and implementing through a
national rule an effective surface water
monitoring program that would be
capable of detecting, isolating, and
quantifying the pollutant contributions
reaching surface waters from individual
CAFOs; and because the addition of in-
stream monitoring does not by itself
achieve any better controls on the .
discharges from CAFOs than the
controls imposed by this rule. In-stream
monitoring could be an indicator of
discharges occurring from the CAFO;
however, unless conditions are
appropriate and a well-designed
sampling protocol is established, it is
equally possible that the ih-stream
monitoring considered at proposal
would measure discharges occurring
from adjacent non-CAFO agricultural
sources. These non-CAFO sources
would likely be contributing many of
the same pollutants considered under
the sampling option. EPA considered
alternative parameters that would
isolate constituents from CAFO manure
and wastewater from other possible
sources contributing pollutants to a
stream. Pathogens were considered as
potential indicator parameters that
could be used if adjacent operations do
not also have livestock or are not using
manure or biosolids as fertilizer sources.
As discussed in the preamble for the
proposed rule, however, there are
concerns about the ability'of CAFOs to
collect and analyze samples for these
pollutants (unless the sampling program
is appropriately designed and tailored to
the CAFO) because of the technical
difficulty in obtaining representative
samples and because of holding time
constraints on collected samples
associated with the analytical methods
for these parameters. Accordingly, EPA
believes that the imposition of in-stream
monitoring requirements is more
appropriately addressed through NPDES
permit conditions established by the
permitting authority. Although EPA has
rejected the inclusion of in-stream
monitoring requirements in this rule,
the permitting authority retains the
authority to include them in NPDES
permits as either technology-based
requirements based on BPJ, or water
quality-based requirements, where the
permitting authority determines they are
necessary.
Another option considered, and
rejected, at proposal would have
required large dairy (and swine)
operations to install anaerobic digester
systems to treat their manure. Requiring
anaerobic digester systems was not
considered for beef and heifer
operations because the wastes from
these facilities would not support the
operation of digester systems. (Refer to
the'Technical Development Document
for more information on the operation of
digester systems.) As discussed at
proposal, anaerobic digesters offer
certain benefits to CAFOs (e.g., energy-
recovery, control of methane emissions),
but they would not necessarily lead to
significant reductions for many of the
pollutants discharged to surface waters
from CAFOs. Mandating the use of
anaerobic digesters could divert
resources from or complicate the
installation of other technologies that
can achieve even better performance.
Further, use of an anaerobic digester
does not eliminate the need for liquid
impoundments to store dairy parlor
water and barn flush water and to
capture storm water runoff from the
open areas at the dairy. Digesters do not
necessarily reduce the nutrients in
animal wastes. Most of the phosphorus
removed from the effluent is
concentrated in the digested solids,
which are still subject to land
application requirements. Similarly,
metals present in the animal waste are
not reduced and remain in the digester
effluent and solids.
Although the ELG requirements in
this rule are not specifically designed to
reduce the pathogens in animal wastes,
today's rule may achieve some
reductions of pathogens in CAFO
discharges by applying manure at rates
that ensure appropriate agricultural
utilization of nutrient and establishing
setbacks or buffers where manure, litter,
and other process wastewater are not
applied. Pathogen die-off can also occur
during the period manure is stored prior
to land application, and further die-off
of pathogens is expected to occur when
the animal waste is exposed to sunlight
following application to land. Because
of the presence of pathogens in anim'al
wastes and the potential risk they pose
to human health and the environment,
EPA continues to be concerned about
the potential for transmission of
pathogenic disease from CAFOs. This
concern is substantiated by information
in the rulemaking record regarding
instances of foodborne and waterborne
disease outbreaks. However, based on
the current state of the science, a •'
quantified link has not been established
between pathogenic diseases outbreaks
and CAFO discharges and runoff. EPA
has a number of research efforts
underway to better understand and
reduce the environmental impact
resulting from the discharge and runoff
of manure from these facilities. This
research will help inform future
decisions to address pathogens in CAFO
discharges.
d. What are the production area
requirements for Large swine, poultry,
and veal CAFOs (Part 412, SubpartD)?.
(1) Existing Large swine, poultry and
veal CAFOs. Today's final rule
establishes ELGs for existing swine,
poultry, and veal operations that are the
same as those described above in
Section IV.C.2.C. for beef and dairy
operations. Consistent with the 1974
ELG regulation, EPA is continuing to
establish BMPs for the CAFO
production area, which includes the
animal confinement areas and the
manure storage and containment iareas.
These BPT, BCT, and BAT requirements
are being established for the reasons
discussed in this section, and consistent
with the factors for consideration:under
the Clean Water Act, as discussed in
Sections II.A.2 and IV.C.2.f of this
preamble.
EPA is retaining the current effluent
guidelines that apply to swine, poultry,
and veal operations, and adding
language extending these requirements
to immature swine, and to chicken
operations with dry litter management
practices. These regulations, which are
codified at 40 CFR Part 412, Subpart D,
prohibit the discharge of manure,: litter,
and other process wastewater, except for
allowing discharge when rainfall causes
an overflow from a facility designed,
maintained, and operated to contain all
manure, litter, and process wastewaters,
including storm water, plus runoff from
the 25-year, 24-hour rainfall event. In
addition, today's rule requires Large
CAFOs to comply with certain BMPs
described above in Section IV.C.2.C.
What did EPA propose? EPA
proposed to establish production .area
effluent guidelines for existing sWine,
poultry, and veal operations that Would
prohibit all discharges from CAFO
production areas. Under the proposed
rule, existing operations subject to the
requirements of Part 412, SubpartD,
would not have been allowed to
discharge any manure, litter, or other
process wastewaters, including the
overflow of manure and other process
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7218 Fedieral Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
wastewaters from their containment
systems. I ' ' •
What were the key comments? EPA
received comments both opposing and
supporting the proposed requirements
that would have eliminated the
allowance for overflows for swine,
poultry, and veal CAFOs. Many
commenters opposed to eliminating the
overflow allowance argued that the cost
to comply with such requirements
would threaten the viability of !their
operations. Some stakeholders also
stated that the use of impermeable
lagoon covers (as a means for achieving
compliance with the proposed'
requirements) wjould pose a number of
operational challenges: freezing, biogas
collection, clean storm water
management, wind shear, cover repair,
and disposal of spent covers. For these
reasons, these stakeholders concluded
the proposed zero discharge standard
was technologically infeasible.
Rationale. The production area
requirements established today for
existing Large swine, poultry, and veal
CAFOs will provide effective qontrol of
discharges of manure and other process
wastewaters to surface water, consistent
with the statutory factors the Clean
Water Act requires EPA to consider in
establishing effljuent guidelines for
existing sources' (BPT, BCT, and BAT).
These requirements are widely
demonstrated as technologically
achievable for these operations, and the
containment requirements included in
this rule have been applicable to Large
CAFOs since th^y were promulgated in
the 1974 ELGs. Further, USDA and
ASAE cite the 2l5-year, 24-hour rainfall
event as part of pie standard to which
storage structures should be [ '
constructed. ;
CAFOs must properly design, operate,
and maintain storage structures to
contain all manure, litter, and process
wastewater including the runoff from a
25-year, 24-hour rainfall event. The
determination of the necessary storage
volume should reflect the maximum
length of time anticipated between
emptying events. The design storage
volume must rejflect manure,
wastewater, and other wastes (
accumulated .during the storage period;
normal precipitation less evaporation on
the surface area during the entire storage
period; normal runoff from the facility's
drainage area during the storage period;
25-year, 24-hour precipitation on the
surface (at the required design storage
volume level) of the facility; 25-year,
24-hour runoff from the facility's
drainage area; residual solids after
liquids have bejen removed; necessary
freeboard (NRGS recommends a
minimum of 1 foot of freeboard); and, in
the case of treatment lagoons, a
minimum treatment volume necessary
to allow anaerobic treatment to occur.
Additional storage may also be required
to meet management goals or other
regulatory requirements. EPA
encourages CAFOs to use relevant
ASAE and NRCS standards as one
method to ensure appropriate design
and construction. This is also consistent
with EPA's approach to estimating the
costs of compliance with today's rule.
CAFOs should actively operate and
maintain the manure storage structure,
including solids removal or dewatering
when appropriate, to retain the capacity
for die 25-year, 24-hour rainfall event.
Recent studies suggest proper operation
and maintenance will prevent most, if
not all, overflows and discharges from
manure storage areas. One recent study
from Iowa State University suggested 76
percent of earthen manure structures
lacked appropriate accompanying
management and maintenance
activities. Another study in North
Carolina stated more than 90 percent of
violations were attributed to operation
and management deficiencies. Other
studies also list typical shortcomings as
including: careless transfer of manure to
application equipment; improper
manure agitation practices; inadequate
controls to prevent burrowing animals
and plants from eroding the storage
berms and sidewalls; lack of routine
inspection of land application and
dewatering equipment during lagoon
drawdown; and infrequent visual
confirmation of adequate freeboard.
Therefore this rule establishes certain
recordkeeping requirements that
document the design basis for the
Structurest inspection and other
maintenance activities related to the
operation of the structures, and any
overflows that occur. These records will
help the CAFO operator to demonstrate
that any overflows that do occur are
consistent with the proper operation
and maintenance of storage structures
designed to contain all manure, litter,
and process wastewater, including the
runoff from a 25-year, 24-hour rainfall
event.
As with the land application
requirements, effluent limitations in the
form of BMPs are particularly suited to
the regulation of CAFOs. For many
CAFOs, controlling discharges to
surface waters is largely associated with
controlling runoff and controlling
overflows from manure storage
structures. CAFO runoff can be highly
intermittent and is usually characterized
by very high flows occurring over
relatively short time intervals. Whether
the runoff or overflow will lead to a
discharge, as well as the volume of any
discharge that does occur and the nature
of t|he pollutants present in the
discharge, can vary substantially
depending on the operating practices
and physical characteristics of the
operation (e.g., paved vs unpaved
surfaces, manure handling practices,
climate, amount of area exposed to the
precipitation).
EPA believes the production area
BMPs included in this rule are
necessary to ensure proper maintenance
of the production area and prevent
discharges except whenever
precipitation causes an overflow of
process wastewater from a facility
designed, constructed, and operated to
contain all manure, litter, and process
wastewaters plus the runoff from a
25-year, 24-hour rainfall event. There
are' numerous reports of operations
discharging pollutants from the
production area during dry weather,
discharges from CAFOs that failed to
maintain the required storage capacity
to contain the 25-year, 24-hour rainfall,
and instances of leakage and
catastrophic failure of lagoons and other
manure storage structures. Information
in jthe record for this rule indicates that
many of the discharges could have been
avoided if CAFOs had practiced the
BlvilPs in this rule frequently enough to
detect and correct discrepancies before
tiiey led to discharges.
For today's rule, EPA has determined
that the cost to retrofit the many manure
storage structures with covers, or to
convert wet manure systems to dry
manure systems, or to install other
control techniques to achieve total
containment of. manure, litter, and other
process wastewaters is not economically
achievable for this subcategory.
According to EPA's cost and economic
impact analyses, requiring existing
Large CAFOs subject to Part 412,
Subpart D to comply with requirements
for total containment (with no
allowance for overflows) would result in
facility closures at 11 percent of the
CAFOs in Subpart D. (See the Economic
Analysis.] EPA disagrees, however, with
the comments that lagoon covers are
technologically infeasible. EPA does
agree that retrofitting existing lagoon
systems with covers can pose
substantial design challenges and some
existing lagoons might need to be
redesigned to accommodate a cover,
substantially increasing the retrofit cost
fot existing sources. In spite of these
design challenges and the operational
challenges that covering lagoons can
pose, EPA believes the record
information on the demonstration status
of impermeable lagoon covers
adequately addresses these feasibility
concerns. EPA has data from several
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7219
vendors; one such vendor has
developed more than a dozen such
systems ranging in size from 3 acres to
almost 20 acres. Covered lagoon systems
have been successfully implemented in
areas with cold climates such as
northern Illinois, South Dakota, and
Wisconsin, and in high-rainfall areas
such as South Carolina, North Carolina,
and Georgia. These systems are
routinely exposed to and resist freezing,
high winds, and other extreme weather
events. EPA believes the information in
the record demonstrates the
technological feasibility of covering
lagoons, but is rejecting BPT/BCT/BAT
requirements based on such technology
because they are not economically
achievable.
EPA is not including ground water
controls and monitoring requirements,
or surface water monitoring
requirements for Subpart D facilities for
the same reasons described in Section
IV.C.2.C for beef and dairy operations.
EPA also rejected basing the effluent
guidelines for swine operations on
anaerobic digesters for the same reasons
given above for dairies, and as discussed
in the preamble for the proposed rule.
(2) New Large swine, poultry and veal
CAFOs, In today's rule, EPA is
establishing effluent guidelines for new
swine, poultry, and veal operations
based on zero discharge from CAFO
production areas, subject to the
provision that if a new source's waste
management and storage facilities are
designed, constructed, operated, and
maintained to contain all manure, litter,
and process wastewater including the
runoff and direct precipitation from a
100-year, 24-hour rainfall event, it will
satisfy the requirements of the NSPS. In
addition, today's rule requires Large
CAFOs to comply with certain BMPs
described above in Section IV.C.2.C for
the reasons given in Section IV.C. The
NSPS requirements are being
established for the reasons discussed in
this section, and consistent with the
factors for consideration under the
Clean Water Act, as discussed in
Sections II.A.2 and IV.C.2.f of this
preamble.
What did EPA propose? EPA
proposed to establish production area
requirements for new sources that
would have required zero discharge,
and that would also have required all
new Large swine, poultry, and veal
CAFOs with a direct hydrologic
connection to surface waters to prevent
discharges to the ground water beneath
the production area (animal
confinement areas, manure stockpiles,
and impoundments).
What were the key comments? Most
comments received focused on the
technological feasibility of total
containment and the appropriateness of
establishing ground water controls as
part of the effluent guidelines. EPA
received numerous comments in
opposition to the proposed ground
water requirements, stating that EPA
lacks the authority to regulate ground
water contamination in this rule and
that the cost to comply with the
proposed requirements would threaten
the viability of these operations. The
commenters also felt that EPA would
need to define the term "direct
hydrologic connection to surface water"
if ground water requirements were to be
implemented. EPA also received
comments supporting the inclusion of
ground water requirements in this rule,
arguing that individual State programs
are not always protective of these types
of discharges.
Many commenters were also opposed
to the proposed requirement that
eliminates the allowance for overflows
for swine, poultry, and veal CAFOs.
Many commenters argued that the cost
to comply with these requirements
would threaten the viability of their
operations. Some stakeholders felt
impermeable lagoon covers in particular
posed a number of operational
challenges: Freezing, biogas collection,
clean storm water management, wind
shear, cover repair, and disposal of
spent covers. For these reasons, these
stakeholders concluded the proposed
zero discharge standard was
technologically infeasible.
Rationale. EPA has determined that
the NSPS requirements included in this
rule for the production area at new
swine, poultry, and veal sources are
technologically feasible and Will not
pose a barrier to entry, for the reasons
discussed below and in the Technical
Development Document.
A number of the comments opposed
to establishing zero discharge
limitations (with no allowance for the
discharge of overflows) were related to
concerns that unforeseeable events
could eventually lead to a discharge
from a facility and result, in the
commenters' view, in a situation of
noncompliance that the CAFO would be
unable to prevent. EPA disagrees with
these comments and believes the
NPDES permitting regulations already
address this concern. Consistent with
existing provisions included in the
NPDES regulations at 40 CFR 122.41,
upset and bypass provisions are
included as standard conditions in
NPDES permits to address the potential
for unforeseen circumstances and
provide CAFOs with a reasonable
defense. In other words, even though
the NSPS for Subpart D operations
prohibits discharges from the
production area, a CAFO can claim an
upset/bypass defense for events that are
beyond reasonable control, including
extreme weather events as well as other
uncontrollable or unforeseen
conditions.
An upset is an unintentional
noncompliance event occurring for
reasons beyond the reasonable control
of the permittee. The upset provision in
the NPDES permit operates as an
affirmative defense to prosecution for
violation of technology-based effluent
limitations, provided certain specified
criteria are met. See 40 CFR 122.41(n).
For example, flood damage or other
severe weather damage to containment
structures that cannot reasonably-be
avoided or controlled by the permittee
could be a basis for an affirmative!
defense for an upset. A bypass, on the
other hand, is an act of intentional
noncompliance during which waste
treatment facilities are circumvented
under certain specified circumstances,
including emergency situations. The
bypass provision authorizes bypassing
to prevent loss of life, personal injury,
or severe property damage where ithere
are no feasible alternatives to the bypass
and where the permitting authority is
properly notified. See 40 CFR
122.41(m).
EPA has added a reference at 40 CFR
412.46(3) to the existing regulatory
provisions at 40 CFR 122.41(m) and (n)
for upset and bypass. The upset and
bypass provisions apply by existing
regulation to all NPDES permits. In light
of the more stringent requirement's for
new sources subject to Subpart Dj EPA
added this cross-reference to ensure that
CAFO operators and permit writers
were aware that the upset and bypass
provisions are available. Upset and
bypass conditions are applicable to all
NPDES permits, for new and existing
sources.
EPA has determined that total
containment for the production area for
new swine, poultry, and veal sources is
technologically feasible and should not
pose a barrier to entry for new sources .
subject to Subpart D. It is commoii for
new poultry, veal, and swine operations
to construct facilities that keep the
animals in total confinement (covered
housing) that is not exposed to rainfall
or storm water runoff. In addition, many
new operations are based on manure
handling systems that greatly reduce or
eliminate water use, such as hog and
poultry high-rise houses, or that qontain
manure in covered or indoor facilities,
such as underhouse pit storage systems
and litter storage sheds. Other new
facilities may choose flush systems with
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7220 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
lagoons that are covered or sited and
designed to achieve total containment.
EPA recognize's that CAFOs may use
different technologies to meet the zero
discharge standard and that these
technologies may have slightly different
vulnerabilities to extreme weather
events. Therefore, EPA is clarifying in
today's rule that a CAFO may meet the
zero discharge standard by designing,
constructing, operating, and
maintaining its tiraste management and
storage facilities to contain all manure,
litter, and process wastewater including
the direct precipitation and runoff from
a 100-year, 24-hour rainfall event.
By definition, a 100-year, 24-hour
storm is an event which occurs^ on
average once every 100 years. EPA
believes that the 100-year, 24-hour
rainfall event criteria provides the
protection of the! resource that the
Agency intended under the zero
discharge limitation, while providing
clarity for the regulated community. The
principle of tying regulatory or program
requirements to precipitation-related
events that happfen with a frequency of
once every 100 years is also usqd in
other federal programs. For example, the
Federal Emergency Management Agency
uses the 100-year flood as the standard
for floodplain management and to
determine the ne|ed for flood insurance
in the National E^lood Insurance
Program. The USDA Natural Resources
Conservation Service (NRCS) uses the
100-year design criteria for flood
protection structures. For instance, if
the potential failure of a water control
structure is likely to cause loss of life or
extensive high value crop or property
damage, NRCS ujses the 100-year
frequency storm jas the basis for design.
CAFOs may choose to meet the zero
discharge requirement through any
technology designed to achieve this
threshold. If a facility is designed,
constructed, operated, and maintained
to meet the 100-^ear, 24-hour rainfall
criterion, and it nonetheless has a
discharge due to extreme weather, this
would not be considered a violation of
its permit conditions. This provision is
separate from an upset defense'
discussed above] j
EPA has carefully evaluated the
concerns raised in comments regarding
the technical feasibility of total
containment at sjwine, poultry, and veal
operations. The concerns raised by
commenters are primarily associated
with operarionaljfactors and the effect of
climate on the use of lagoon covers.
Although the effluent guideline does not
require the use of any specific
technology, EPAj concludes that the total
containment requirements of this rule
could be met at new sources through the
use of lagoon covers or other
appropriate technologies. New sources
will avoid the design challenges and
retrofit costs that existing sources would
face with the use of lagoon covers,
should they choose that technology to
comply. Based on the information in the
record, and as discussed above in this
section, EPA has received data to
demonstrate that each of these factors
has been successfully handled at CAFOs
and other facilities. Furthermore, by
retaining all manure, litter, and other
process wastewaters within the building
(for example, by using underhouse pits)
and not using an outdoor liquid
impoundment, or by using other
appropriate technologies, such as a
lagoon designed to contain the
precipitation and runoff from a
100-year, 24-hour rainfall event, new
sources can avoid the operational
challenges posed by covers.
In many instances, CAFOs are
expected to construct swine and poultry-
housing that maintains the manure in
dry form and stores the dry manure
under cover until it is hauled off-site or
land applied. Dry manures are generally
more marketable and easier to transport,
important considerations for facilities
with insufficient land for agronomic use
of the manures. The majority of poultry
operations use total confinement
housing practices, generating a dry
manure that is collected within the
poultry houses. The manure/litter is
removed periodically from the poultry
houses and is either taken directly to the
land application area, transported to
off-site fields or centralized processing
facilities (e.g., pelletizing operations),
stored on-site within a roofed facility, or
stored in temporary field stacks which
can be covered and configured to
prevent contact with precipitation.
There has also been a great deal of
interest in dry manure systems for
swine operations in recent years, as
evidenced by the current use of hoop
structures and other designs described
in the Technical Development
Document. Dry manure systems are
widely used at swine operations in
Europe and are also being used at some
operations in Canada. Some operations
in the U.S. already use dry manure
systems and EPA expects that the U.S.
swine industry will choose to construct
dry manure systems at new operations
with greater frequency as they gain
greater experience with these designs.
In other instances, new swine
operations will likely choose
underhouse deep pit systems to comply.
Contrary to standard practice 30 years
ago, closed buildings with underhouse
deep pits are currently the predominant
production technology used at swine
operations. By 1995, approximately half
of all large swine operations were using
under floor pits with slotted floors. In
200'0, more than 2,200 large swine
operations nationwide utilized under
floor pits, with several hundred :
additional operations using slurry
storage. EPA has learned through :site
visits, as supported by meetings With
the |National Pork Producers Council (a
trade association) that, because of
further technological advancements,
newly constructed systems rarely
include lagoons, and that closed ;
buildings with under floor pits are now
the jpredominant production technology.
Given the widespread use of this design,
EPA anticipates that a number of new
operations constructed in the next five
to ten years will choose to use deep pit
systems.
Spme new swine operations may
cho|ose to use lagoon-based or other wet
systems, depending on the factors
spepific to their situation. For example,
sonje new operations may choose to rely
on covered lagoon systems (with gas
flaring or energy recovery). Another
alternative technology that may be
selected would be to install an
anaerobic digester followed by a
covered lagoon for storing the digester
effluent. Benefits to operators using
anaerobic digesters include the cost
savings (or even revenue, in some cases)
from electricity generation, a better-
stabilized waste, significant odor;
reduction, and improved marketability
of the digester solids. During site visits
conducted during the rulemaking EPA
hasjobserved the use of aboveground
fiberglass-lined steel tanks to store
swine wastes. When configured to
exclude direct precipitation or to •
corrtain all direct precipitation arid
runpff from a 100-year, 24-hour rainfall
event, these tanks are able to meet the
zero discharge requirement. As noted
below in section IV.C.2.e, in order to
provide appropriate flexibility to i
CAFOs, alternative technologies that
achieve overall environmental
performance across all media equal or
superior to the reductions that would be
achieved under the zero discharge
standard may also be authorized by the
Director.
EPA is aware of some interest by the
swine industry in achieving total
containment by using uncovered
lagoons that would not be expected to
disqharge to surface waters based upon
siting and lagoon design. For example,
by providing additional freeboard in the
design, a facility with sufficient
containment to retain all manure,; litter,
and process wastewater plus the direct
precipitation and runoff from a
100-year, 24-hour rainfall event would
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7221
be able to demonstrate that it complies
with the rule requirements, assuming
proper operation and management.
Such facilities would be considered to
achieve zero discharge. As discussed
above, an upset defense could also
apply when unforeseen and
uncontrollable conditions result in a
discharge.
The production area BMPs
established today for Large swine,
poultry, and veal CAFOs are necessary
to ensure proper operation and
maintenance of the production area and
provide effective control of discharges
of manure, litter, and other process
wastewaters to surface water. There are
numerous reports of operations
discharging pollutants from the
production area during dry weather,
discharges from CAFOs that failed to
maintain the required storage capacity,
and instances of leakage and
catastrophic failure of lagoons and other
manure storage structures. CAFOs
should actively operate and maintain
the manure storage structure, including
solids removal or dewatering when
appropriate, to retain the capacity to
accommodate continued generation of
process wastewater. Information in the
record for this rule indicates that many
of the discharges could have been
avoided if CAFOs had practiced the
BMPs in this rule frequently enough to
detect and correct discrepancies before
they led to discharges.
EPA is not including ground water
controls and monitoring requirements,
or surface water monitoring
requirements for Subpart D facilities for
the same reasons described in Section
IV.C.2.C for beef and dairy operations.
EPA also rejected basing the effluent
guidelines for swine operations on
anaerobic digesters for the same reasons
described above for dairies, and as
discussed in the preamble for the
proposed rule.
e. Voluntary alternative performance
standards to encourage innovative
technologies. EPA's long-term
environmental vision for CAFOs
includes continuing research and
progress toward environmental
improvement. The Agency believes that
certain individual CAFOs will
voluntarily develop and install new
technologies and management practices
equal to or better than those required by
baseline technology-based effluent
guidelines (BPT, BCT, and BAT) and
standards (NSPS) promulgated in
today's rule. Furthermore, EPA
recognizes that some CAFOs, as well as
land grant universities, State agencies,
equipment vendors, and agricultural
organizations, are working to develop
new technologies that achieve
reductions in nutrient and pathogen
losses to surface water, ammonia and
other air emissions, and ground water
contamination. The development of new
technologies offers the potential to
match or surpass the pollutant
reduction that would be achieved by
compliance with the baseline
production area effluent guidelines and
standards (discussed above in Section
IV.C.2.C for Large CAFOs subject to Part
412, Subpart C, and Section IV.C.2.d for
Large CAFOs subject to Part 412,
Subpart D). The term "baseline effluent
guidelines" "as used here is defined
below in the following section of this
preamble.
In addition to the production area
effluent guidelines promulgated by
today's rule (the "baseline effluent
guidelines"), EPA is establishing
provisions for the development of
alternative performance standards for
discharges from the production area of
Large CAFOs. The effluent guidelines
promulgated today also establish BMPs
that apply to the production area and
land application areas at Large CAFOs..
These BMP requirements are applicable
to all Large CAFOs (both existing and
new sources), regardless of whether
their NPDES permit limitations are
based on the baseline effluent
guidelines or the alternative
performance standards.
In establishing the ELG provisions for
alternative performance standards, this
rule creates a framework that enables
new and existing Large CAFOs in
Subpart C and existing Large CAFOs in
Subpart D to develop and implement
new technologies and management
practices that perform as well as or
better than the baseline effluent
guidelines at reducing pollutant
discharges to surface waters from the
production area. For new Large CAFOs
in Subpart D, the rule allows for
alternative permit limitations based
upon site-specific innovative
technologies that achieve environmental
performance across all media which is
equal or superior to the baseline
standards. An added benefit of
providing for alternative performance
standards is the potential for new or
alternative technologies and practices to
help address the multimedia
environmental issues confronting
CAFOs. A key tenet of these programs
is that CAFOs will now have the option
to either accept NPDES permit
limitations based on the baseline
effluent guidelines or voluntarily
request the permitting authority to
establish an alternative BPT/BCT/BAT/
NSPS performance standard as the basis
for their technology-based NPDES
permit limits (e.g., inclusion of effluent
limitations in their NPDES permits that
are different from those based on the
baseline effluent guidelines).
EPA received suggestions from a
number of stakeholders on the merits of
creating a framework for alternative
performance standards. Several
stakeholders believe that the effluent
guidelines established by the 1974 ELG
regulation, as well as the baseline
effluent guidelines promulgated in
today's rule, discourage the use of
innovative treatment and pollution
prevention technologies because they
are based on containment rather than
treating the wastes to particular targets
of effluent quality. A number of
commenters expressed support for
alternative wastewater treatment
technologies that are equivalent to or
better than baseline effluent guidelines,
and they specifically requested that EPA
establish provisions in the rule to: allow
CAFOs to discharge treated process
wastewater generated from the
production area of the CAFO.
Commenters also suggested that EPA's
regulatory framework should provide
incentives encouraging CAFOs to use
technologies that would protect all
environmental media, including air,
ground water, and surface water.
Commenters suggested that adding
flexibility in the rule to allow for the
discharge of treated process wastewater
could lead to better approaches for
addressing multimedia environmental
concerns. On a related note, a number
of stakeholders commented that EPA
should include controls for pathogens or
antibiotics, as well as atmospheric
emissions of ammonia, methane, and
hydrogen sulfide.
In view of these comments and
recognizing the potential environmental
gains presented by the ongoing research
and development of new treatment
technologies for CAFO wastes, today's
rule establishes provisions providing for
the development of alternative
performance standards for discharges
from Large CAFOs. As noted above,
CAFOs retain the option to either accept
NPDES permit limitations based on the
baseline effluent guidelines or
voluntarily request the permitting
authority to establish an alternative
performance standard as the basis for
their technology-based NPDES permit
limits. The specific requirements
imposed by the alternative performance
standard would be established by the
NPDES permitting authority based on
the technical analysis and other
information submitted by the CAFO, as
required under the alternative
performance standards provisions
included in Part 412. CAFOs would not
be required to enter the alternative
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7222 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
performance standards program. A
Large CAFO choosijng not to participate
in the alternative performance standards
program would insiead be subject to the
baseline effluent guidelines discussed
above in Section rvi.C.2.c (for Subpart C)
or Section IV.C.2.d (for Subpart D). EPA
previously used a similar approach in
establishing the effluent guidelines
regulations for the Pesticide
Formulating, Packaging, and
Repackaging (PFPRj) industry. In that
rule,.PFPR facilities are subject to ,
effluent guidelines requirements that
prohibit all discharges, but they may
voluntarily elect to Instead adopt certain
regulatory requirements (mandatory
BMPs and treatment of discharged
wastes) and be allowed to discharge a
"pollution prevention allowable !
discharge." (See40[CFRPart 455. See
a7so 61 FR 57518; November 6, 19J36.) In
another rulemakingi, EPA established
effluent guidelines for the pulp, paper,
and paperboard (Pujlp & Paper) industry
that provide incentives for mills to'
voluntarily implement advanced
process technologies. For the Pulp' &
Paper effluent guidelines, mills
accepting more stringent NPDES permit
limitations based on the performance of
the advanced technologies and other
process improvements are granted;
incentives such as public recognition
and substantially extended compliance
periods. (See 40 CFR Part 430. Also see
63 FR 18504, 185931-18611; April 15,
1998). -' ]
(1) Baseline effluent guidelines. The
effluent guidelines regulations
promulgated in today's rule for all1
existing Large CAFOs, and for new,
source Large beef, dairy and heifer
CAFOs, prohibit the discharge of
process wastewaters, except when'
rainfall events cause an overflow from a
facility designed, constructed, and
operated to contain all manure, litter,
and process wastewaters plus the runoff
from a 25-year, 24-hour rainfall event.
These limitations are based on the.use
of storage ponds and lagoons to contain
the process wastes and runoff, although
they do not preclude CAFOs from using
alternative technologies. The NSPS
requirements for new source Large
swine, poultry, and veal CAFOs require
zero discharge from the production area,
subject to a provision that compliance
with the standard can be met if the
waste management tnd storage facilities
are designed, constructed, operated, and
maintained to contain all manure, litter,
and process wastewater including the
runoff and direct precipitation from a
100-year, 24-hour rainfall event. The
ELGs were established on the basis of
factors specified in CWA sections 304(b)
and 306, including the cost of achieving
the effluent reductions and any non-
water quality environmental impacts.
These limitations are referred to in this
preamble as the "baseline effluent
guidelines" for the purpose of clarifying
which effluent guidelines requirements
may be replaced by the alternative
performance standards provisions
included in today's rule.
The effluent guidelines promulgated
today also establish BMPs that apply to
the production area and land
application areas at Large CAFOs. These
BMP requirements are applicable to all
Large CAFOs (both existing and new
sources), regardless of whether their
NPDES permit limitations are based on
the baseline effluent guidelines or the
alternative performance standards. As
discussed in Sections IV.C.2.C and
IV.C.2.d, the production area BMPs are
necessary to ensure that manure storage
structures and other production area
components associated with controlling
process wastewaters (e.g., storm water
diversions) are properly designed,
operated, and maintained to prevent
overflows or catastrophic failure of the
system.
(2) Voluntary alternative performance
standards for all Large beef/dairy/heifer
CAFOs and existing Large swine/
poultry/veal CAFOs, The alternative
performance standards promulgated
today for new and existing sources in
Subpart C and existing sources in
Subpart D, apply to discharges of
manure, litter, and other process
wastewaters from the CAFO production
area. Under the provisions included in
the final rule, these Large CAFOs will be
allowed to discharge process wastewater
that has been treated by technologies
that the CAFO demonstrates will result
in equivalent or better pollutant
removals than would otherwise be
achieved by the baseline effluent
guidelines. These regulatory provisions
are targeted toward the CAFO's
wastewater discharges, but EPA
encourages operations electing to
participate in the alternative
performance standards program to
consider environmental releases
holistically, including opportunities for
achieving improvement in multiple
environmental media.
. As discussed above, the baseline
effluent guidelines, though nominally
zero discharge, allow for untreated
overflow discharges if the system is
designed, constructed, and operated to
contain manure, litter, and process
wastewater plus the runoff from a
25-year, 24-hour rainfall, (Large swine,
poultry, and veal CAFOs that are new
sources are subject to a different
performance standard.) To demonstrate
that an alternative control technology
would achieve equivalent or better
pollutant reductions than the baseline
effluent guidelines, the CAFO must
submijt a technical analysis, which
includes calculating the pollutant
reductions based on the site-specific
modeled performance of a system
designed to comply with the baseline
effluent guidelines (e.g., a storage;lagoon
designed, constructed, and operated to
contain all manure, litter, and process
wastewaters plus the runoff from a
. 25-yeejr, 24-hour rainfall event). For
many pollutants (e.g., nitrogen,
phosphorus,.BOD, metals), the mass of
pollutants discharged will usually be
the most appropriate measure for
assessing treatment system performance
and determining whether the alternative
control technology will achieve equal or
better pollutant reductions. For some
pollutants such as pathogens, however,
pollutant mass may not be the most
appropriate measure of pollutant
reductions and alternative measures
will need to be used.
One! approach for making such a
demonstration is to use a computer
simulation model to evaluate siter
specific or region-specific climate data,
along with wastewater characterisation
data, to determine the pollutant ;
discharge that would be projected for a
system designed, constructed, and
operated to achieve compliance with the
baseline effluent guidelines. The model
would! evaluate the daily inputs to the
storage system, including all process
wastes, direct precipitation, and runoff.
It would also evaluate the daily outputs
from the storage system, including
losses ;due to evaporation, sludge
removal, and the removal of wastewater
for use on cropland at the CAFO or
transport off site. The model would be
used to predict the overflow from the
storage system that would occur over a
25-year period, and these overflow
predictions would be used to determine
the median annual predicted overflow
over the 25 years evaluated by the
model!
Precipitation patterns for a given
location are inherently variable from
year-tq-year. As a result, the volume of
water entering the storage system* either
through direct precipitation or as
collected runoff, will vary substantially
from one year to another. The potential
for the; storage system to overflow and
the volume of the overflow is a function
of site-;specific variables, including the
rate and total volume of wastes entering
and leaving the storage system. To
enable; the development of alternative
performance standards that achieve
pollutant reductions comparable to
those that, would be achieved by the
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7223
baseline effluent guidelines, CAFOs
must perform a technical analysis that
includes a prediction of the volume of
overflows from the storage system. If the
technical analysis were to be performed
using climate data from a period of
unusually high precipitation, then the
CAFO's analysis would tend to
overestimate the overflow volume and
result in alternative performance
standards that do not achieve pollutant
reductions equal to the baseline effluent
guidelines. Conversely, if the technical
analysis were to be performed using
climate data from a period of unusually
low precipitation (e.g., drought periods),
then the CAFO's analysis would tend to
underestimate the overflow volume. By
requiring the CAFO to use precipitation
data for a 25-year period, the technical
analysis will minimize the bias
introduced by short-term variations in
climate patterns.
The site-specific or other appropriate
pollutant characterization data for the
wastewater from the waste storage
system (i.e., the overflow) would be
coupled with the overflow volume
output from the model described above
to predict the quantity of pollutant
discharge that would occur from a
system designed to comply with the
baseline effluent guidelines. CAFOs
would be required to meet NPDES
permit conditions that result in
equivalent or improved pollutant
reductions, as compared to the
predicted quantity of pollutant
discharge from overflow of the baseline
system. If a CAFO elected to use this
approach, it would be meeting the same
limitations as a CAFO under the
baseline effluent guidelines, but
expressed in a different fashion (e.g.,
numeric limits on a continuous
discharge versus a limit of zero
discharge with an allowance for
discontinuous overflows). To illustrate
this type of analysis, EPA prepared an
example evaluation using model farm
characteristics. This example is
available in the Technical Development
Document and in section 19.6.2 of the
rulemaking record.
(3) Voluntary superior environmental
performance standards for new Large
s\vine/poultry/veal CAFOs. The NSPS
requirements that apply to production
area discharges at new Large swine,
poultry, and veal CAFOs are more
stringent than the NSPS established for
other new sources and the BAT
requirements for existing sources. EPA
is endeavoring to ensure that this rule
does not inadvertently discourage
approaches that are superior from a
multimedia environmental perspective.
Therefore, for new sources subject to
Subpart D (Large swine, poultry, and
veal CAFOs), EPA is establishing
alternative performance standards that
provide additional compliance
flexibilities specifically designed to
encourage CAFOs to adopt innovative
technologies for managing and/or
treating manure, litter, and process
wastewater. Specifically, the NSPS
includes a provision that allows for the •
CAFO to request the Director to
establish alternative NPDES permit
limitations based upon a demonstration
that site-specific innovative
technologies will achieve overall
environmental performance across all
media which is equal to or superior to
the reductions achieved by baseline
standards. The quantity of pollutants
discharged from the production area
must be accompanied by an equivalent
or greater reduction in the quantity of
pollutants released to other media from
the production area (e.g., air emissions
from housing and storage), the land
application areas for all manure, litter,
and process wastewater at on-site and
off-site locations, or both. In making the
demonstration that the innovative
technologies will achieve an equivalent
or greater reduction, the comparison of
quantity of pollutants is to be made on
a mass basis where appropriate.
In general, EPA expects CAFOs will
conduct a whole-farm audit to evaluate
releases that occur at the point of
generation to minimize or eliminate
waste production and air emissions,
followed by an evaluation of the waste
handling and management systems, and
ending with an evaluation of land
application and off-site transfer
operations. The specific technologies
that CAFOs will select and adopt to
achieve the pollutant reductions are
expected to be most effective for the
particular operation. As part of the
demonstration the CAFO will need to
present information that describes how
the innovative technologies will
generate improvement across multiple
environmental media. The Director has
the discretion to request additional
supporting information to supplement
such a request where necessary. Such
information could include criteria and
data that demonstrate effective
performance of the technologies and
that could be used to establish the
alternative NPDES permit limitations.
(4) Process and incentives for
participating in alternative performance
standards. CAFOs interested in
pursuing the alternative performance
standards should have a good
compliance history, e.g., no ongoing
violations of existing permit
performance standards or history of
significant noncompliance. These
facilities must conduct an analysis of
their operation (as described above in
Sections IV.C.2.e.(2) and IV.C.2.e.(3))
and prepare a proposed alternative
program plan including the results of
the analysis; the proposed method for
implementing new technologies and
practices, including an approach for
monitoring performance; and the results
demonstrating that these technologies
and practices perform equivalent to or
better than the baseline effluent
guidelines. This plan must be included
with the CAFO's NPDES permit .
application or renewal, and it will be
incorporated into the permit upon
approval by the permitting authority.
CAFOs are expected to derive
substantial benefits from participation
in the alternative standards approach,
through greater flexibility in operation,
increased good will of neighbors,
reduced odor emissions, and potentially
lower costs. EPA is considering future
opportunities for other possible
incentives to encourage participation in
this program.
/. How did EPA consider the Clean
Water Act statutory factors in
establishing the ELGs? (1) BPT. In
establishing BPT effluent guidelines for
an industry category, EPA looks at a
number of factors in determining the
appropriate effluent limits for
conventional, toxic, and non-
conventional pollutants. EPA first
considers the cost of achieving effluent
reductions in relation to the effluent
reduction benefits. The Agency also
considers the age of the equipment and
facilities, the processes employed and
any required process changes,
engineering aspects of the control
technologies, non-water quality
environmental impacts (including
energy requirements), and such other
factors as the Agency deems :
appropriate. 33 U.S.C. 304(b)(l)(B).
Traditionally, EPA establishes BPT
effluent limitations based on the average
of the best performances of facilities
within the industry of various ages,
sizes, processes or other common:
characteristics. EPA's consideration of
these factors and how they affected this
rulemaking is presented in the
Technical Development Document.
One way that EPA takes these factors
into account is by breaking down
categories of industries into separate
classes of similar characteristics. The
division of a point source category into
groups called "subcategories" provides
a mechanism for addressing variations
among products, raw materials,
processes, and other parameters that can
result in distinct effluent characteristics.
This provides each subcategory with a
uniform set of ELGs that take into
account technology achievability and
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7224 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
economic impacts pnique to that
subcategory. In this rule, EPA has
addressed such considerations by!
establishing two new subcategories,
codified at Subpari: C (beef, dairy, and
heifers) and Subpart D (swine, poultry,
and veal) of 40 CFR 412. See Section
IV.C.2.a of the preamble for a discussion
of these subcategoikes.
The requirements established in this
rule for BPT effluent guidelines reflect
consideration of the total cost of
applying these technologies (including
BMPs) in relation to the effluent
reduction benefits that will be achieved.
The ELGs promulgated today are ,
expected to cost Large CAFOs $283
million per year (pjre-tax). The ELGs will
reduce discharges of sediment by 2.1
billion pounds, nujrients by 155 million
pounds, and metals by one million
pounds annually. This results in an
overall ratio of $0.12 per pound of
pollutant removed (using reductions of
sediment, nutrients, and metals). •
Excluding sedimerit reductions, the rule
achieves an overall ratio of $1.75 per
pound of pollutanlj removed (nutrients
and metals). j
The technologies upon which BPT is
based are ones thai: are readily
applicable to all CAFOs and will;
provide effective cpntrol of discharges
of manure, litter, and other process
wastewaters to surface water. The,se
requirements are vjidely demonstrated
as achievable and represent the level of
control achieved by the majority of
Large CAFOs. The (containment ,
requirements included in this rule have
been applicable to Large CAFOs since
they were promulgated in the 19 74
ELGs, and most existing lagoons and
other containment structures are built to
these standards. Furthermore, USDA
and ASAE cite the|25-year, 24-hour
rainfall event as part of the standard to
which containment structures should be
constructed. I |
As described in Section W.C.2.]} of
this preamble, the land application
requirements included in this rule
represent practices that will ensure that
CAFOs apply manure, litter, and other
process wastewaters at a rate and in a
manner consistent with the appropriate
agricultural utilization of nutrienfis.
Limits on the rate at which manure can
be applied and certain other constraints
on application practices, such as
setbacks and vegetated buffers, are
widely demonstralled as achievable and
have been imposed by a number of
States and through' NPDES permits.
(2) BCT. In evaluating the possible
BCT standards in tlhis rulemaking, EPA
first considered whether there are any
candidate technologies (i.e., technology
options) that are technologically feasible
and achieve greater reductions in
conventional pollutants than are
achieved by the BPT requirements
promulgated today. (Conventional
pollutants are defined as TSS, BOD, pH,
fecal coliforni, and oil and grease.)
EPA's analyses of pollutant reductions
that can be achieved by the candidate
options (including the BPT, BAT, and
NSPS options) has focused largely on
the control of nutrients, sediments,
metals, and pathogens, but to the extent
possible have also assessed the
effectiveness of the control options, at
reducing discharges of conventional
pollutants. Although animal wastes
contain BOD because of the organic
material present in these wastes, the
data available for estimating reductions
of BOD from application of the
candidate technologies are limited.
Therefore, EPA based its estimates of
conventional .pollutant reductions on
TSS, using estimated reductions in
sediment discharges as a surrogate for
TSS. Following this approach, EPA
identified no BCT technology option
that achieves greater TSS removals than
the BPT requirements promulgated
today, and EPA does not believe the
candidate BCT options would
substantially teduce discharges of BOD.
EPA therefore concluded that there are
no candidate BCT technologies for
establishing limits on conventional
pollutants that are more stringent than
BPT, and is establishing BCT
requirements in this rule equal to BPT.
If EPA had identified technology
options appropriate for a national rule
that achieve greater reductions of
conventional pollutants than are
achieved by BPT, then EPA would have
performed the two-part BCT cost test.
(See 51 FR 24974 for a description of the
methodology EPA employs when setting
BCT standards.)
(3) BAT. In general, BAT represents
the best available economically
achievable performance of direct
discharging facilities in the industrial
subcategory or category. The Clean
Water Act requires EPA to consider a
number of different factors when
developing ELGs that represent the BAT
level of control for discharges of toxic
and nonconventional pollutants by a
particular industry category. These
factors include the cost of achieving
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
other factors as the Administrator deems
appropriate. EPA's consideration of
these factors and how they affected this
rulemaking is presented in the
Technical Development Document
An (additional statutory factor
considered in setting the BAT
requirements is economic achievability.
Generally, the achievability is
determined on the basis of the total cost
to the| industrial subcategory and the
overall effect of the rule on the
industry's financial health. The BAT
requirements promulgated today are
economically achievable and represent
the best available technology for Large
CAFOs. As was discussed above for
BPT, EPA estimates the cost for Large
CAFOs to comply with the ELGs at $283
million per year (pre-tax, $2001). The
ELGs |will reduce discharges of sediment
by 2.1 billion pounds, nutrients by 155
million pounds, and metals by one
million pounds annually. (These costs
and pollutant reductions are not
additional costs beyond that of BPT.
Because the BPT and BAT requirements
promulgated today are identical, the
costs knd pollutant reductions for each
level of control are presented
incremental to the baseline of current
practices and current regulatory
requirements.) :
The technologies upon which BAT is
based are ones that are readily
applicable to all CAFOs and will
provijie effective control of discharges
of manure, litter, and other process
wastewaters to surface water. The
containment requirements, in
conjunction-with the production area
BMPs included in this rule, are widely
demonstrated as achievable and
represent the .level of control :
demonstrated to be achievable by
well-performing Large CAFOs. The
containment requirements included in
this rule have been applicable to Large
CAFOs since they were promulgated in
the 1974 ELGs, and most existing
lagoons and other containment
structures are built to these standards.
Furthermore, USDA and ASAE cite the
25-ye|ar, 24-hour rainfall event as part of
the standard to which storage structures
should be constructed.
As 'described in Section IV.C.2.b of
this preamble, the land application
requirements included in this rule are
consistent with appropriate agricultural
utilization of nutrients and will ensure
that GAFOs apply manure, litter, and
other process wastewaters at a rate and
in a manner necessary to meet the
requirements of the crops grown ind not
exceqd the ability of the soil and crop
to absorb nutrients. Limits on theirate at
which manure can be applied and
certain other constraints on application
practices, such as setbacks and
vegetated buffers, are widely
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7225
demonstrated as achievable and have
been imposed by a number of States and
through NPDES permits.
To determine economic achievability,
EPA analyzed how many facilities
affected by this rule would experience
financial stress severe enough to make
them vulnerable to closure. As
explained in more detail in Section Yin
of this preamble and in the Economic
Analysis, the number of facilities
experiencing stress might indicate
whether certain regulatory options
considered during the rulemaking are
economically achievable, subject to
other considerations.
For the veal, dairy, turkey, and egg
laying sectors, the final regulations are
not expected to result in any CAFO-
level business closures. In the beef
cattle, heifer, swine and broiler sectors,
however, the final rule is expected to
cause some existing CAFOs to
experience financial stress. These
operations may be vulnerable to closure
as a result of complying with the final
rule. Across all sectors, an estimated
285 existing Large CAFOs may be
vulnerable to facility closure. This
accounts for approximately 3 percent of
all Large CAFOs. By sector, EPA
estimates that 49 beef operations (3
percent of affected beef CAFOs), 204
hog operations (5 percent of affected hog
CAFOs), 10 broiler operations
(1 percent), and 22 heifer operations (9
percent) may close as a result of
complying with the final rule.
(3) NSPS. NSPS reflect effluent
reductions that are achievable based on
the best available demonstrated control
technology. New facilities have the
opportunity to install the best and most
efficient production processes and
wastewater treatment technologies. As a
result, NSPS represents the greatest
degree of effluent reduction attainable
through the application of the best
available demonstrated control
technology for all pollutants (i.e.,
conventional, non-conventional, and
priority pollutants). In establishing
NSPS, EPA is directed to take into
consideration the cost of achieving the
effluent reduction and any non-water
quality environmental impacts and
energy requirements. In addition, EPA
evaluates whether the requirements
would impose a barrier to :entry to new
operations.
The technologies upon which the
production area NSPS for Large beef,
dairy, and heifer CAFOs are ones that
are readily applicable to all CAFOs in
that subcategory and will provide
effective control of discharges of
manure, litter, and other process
wastewaters to surface water. The
containment requirements, in
conjunction with the production area
BMPs included in this rule, are widely
demonstrated as achievable and
represent the level,of control
demonstrated to be achievable by well-
performing Large CAFOs covered.by
Part 412, Subpart C. The containment
requirements included in this rule have
been applicable to Large CAFOs since
they were promulgated in the 1974
ELGs, and most existing lagoons and
other containment structures are built to
these standards. Furthermore, USDA
and ASAE cite the 25-year, 24-hour
rainfall event as part of the standard to
which containment structures should be
constructed.
EPA has determined that total
containment (with a compliance option
to design, operate, and maintain the
facility to contain the runoff from a
100-year, 24-hour rainfall event) for the
production area for new swine, poultry,
and veal sources (and the production
area BMPs) is technologically feasible
and will not pose a barrier to entry for
new sources subject to Subpart D. It is
common for new poultry, veal, and
swine operations to construct facilities
that keep the animals in total
confinement. In addition, many new
operations are based on manure
handling systems that greatly reduce or
eliminate water use, such as hog and
poultry high-rise houses, or that contain
manure in covered or indoor facilities,
such as underpit storage systems and
litter storage sheds. EPA has carefully
evaluated the concerns raised in
comments regarding the technical
feasibility of total containment at swine,
poultry, and veal operations. The
concerns raised by commenters are
primarily associated with operational
factors and the effect of climate on the
use of lagoon covers. New sources will
avoid the design challenges and retrofit
costs that existing sources would face
with these requirements. Based on the
information in the record, and as
discussed above, EPA has received data
to demonstrate that each of these factors
has been successfully handled at CAFOs
and other facilities. Therefore, EPA
concludes that the total containment
requirements of this rule could be met
through the use of lagoon covers if
facilities choose to do so. However, by
retaining all manure and process
wastewater within the building (for
example, by using underhouse pits) and
not using an outdoor liquid
impoundment, these operations will
avoid the operational challenges posed
by covers. Additional compliance
flexibility is provided by the provision
that allows the zero discharge standard
to be met by designing, constructing,
operating, and maintaining waste
management and storage facilities to
contain all manure, litter, and process
wastewater including the runoff and the
direct precipitation from a 100-year,
24-hour rainfall event.
The land application requirements
included in this rule for all Large
CAFOs that are new sources are
identical to those established under
BAT for existing sources and are
consistent with appropriate agricultural
utilization of nutrients. These land
application requirements will ensure
that CAFOs apply manure, litter, and
other process wastewaters at a rate and
in the manner necessary to meet the
requirements of the crops grown and not
exceed the ability of the soil and crop
to absorb nutrients. Limits on the rate at
which manure can be applied and
certain other constraints on application
practices, such as setbacks and
vegetated buffers, are widely
demonstrated as achievable and as the
best available demonstrated control
technology, and have been imposed by
a number of States and through NPDES
permits.
EPA evaluated economic impacts to
new source CAFOs by comparing the
costs borne by new source CAFOs to
those estimated for existing sources.
That is, if the expected cost to new-
sources is similar to or less than the
expected cost borne by existing sources
(and that cost was considered
economically achievable for existing
sources), then EPA considers the
regulations for new sources do not
impose requirements that might grant
existing operators a cost advantage over
new CAFO operators and further
determines that the NSPS is affordable
and does not present a barrier to entry
for new facilities. In general, costs to
new sources for complying with a given
set of regulatory requirements are lower
than the costs for existing sources to
comply with the same requirements
since new sources are able to apply
control technologies more efficiently
than existing sources that may incur
high retrofit cost. New source CAFOs
will be able to avoid the retrofit costs
that will be incurred by existing
sources. For example, the cost of a
model total containment system for
swine that would meet the no discharge
requirement (e.g., incremental cost of
deep pit swine house, including land
application) typically is less than the
cost for an existing source to retrofit
water intensive lagoon-based systems
that are exposed to precipitation.
Among the primary reasons for the
capital cost difference for a new source
with total containment is that it does
not include an impoundment lagoon,
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7226 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
and it experiences reduced operating
costs because it handles less waste with
substantially lower water and higher
solids content than a water-intensive
lagoon-based system. New sources may
be able to avoid many of the other
control costs facing some existing
producers through careful site selection,
such as choosing to locate at a site with
sufficient available land nearby for
applying manure. Furthermore, other
technologies are available to new
sources, that have been implemented by
existing sources, that are also capable of
achieving the no discharge standard.
See section IV C above for further
discussion of other technologies. Since
the new source requirements for
Subpart C are the same as the
corresponding existing source
requirements, EPA concludes that the
NSPS requirements promulgated today
do not present a barrier to entry for new
facilities. For Subpart D facilities, where
the new source requirements are more
stringent than the existing source
requirements, EPA concludes that the
NSPS requirements do not pose a barrier
to entry because of the currently
widespread use of animal confinement
practices and waste management
technologies that can comply with the
zero discharge standard, and because
these total containment technologies
and practices are less costly to
implement than water-intensive systems
(e.g., such as water flush waste
management) that are exposed to
precipitation. EPA costed for zero
discharge technologies and showed that
these would pose no barrier to entry.
Now that operations can choose an
alternative option that might be cheaper
to implement, EPA believes that there is
even less likelihood that there is a
barrier to entry. More information is
provided in the Technical Development
Document and the Economic Analysis
supporting the final regulations.
3. What Technology-Based Limitations
Apply to Small and Medium CAFOs?
In today's final rule, small and
medium-size AFOs that have been
defined or designated as CAFOs by the
permitting authority would not be
subject to the effluent limitations
guidelines and standards specified in
part 412. (Refer to section IV.C.2.a. of
this preamble for a discussion of the key
public comments and EPA's final
analysis for applying the effluent
limitations guidelines only to Large
CAFOs.) Rather, for Small and Medium
CAFOs the permit writer would use BPJ
to establish, case by case, the
appropriate technology-based
requirements for each permit. The
technology-based requirements must
address the production area and the
land application area(s). Establishing
permit limits for these facilities on a BPJ
basis, using 40 CFR 125.3 as a guide for
the types of factors to consider, allows
for the establishment of permit
conditions that are tailored to and more
directly address the site-specific
conditions that led to the facility being
defined or designated as a CAFO. In
instances where technology-based
requirements are not protective of water
quality, the permit writer will also
establish water quality-based effluent
limits.
For the production area, the
permitting authority must establish the
technology-based limitations on the
discharge of manure, litter, and process
wastewater, including limitations where
applicable based on the minimum
duration and intensity rainfall event for
which the CAFO can design and
construct a system to contain all
manure, litter, and process wastewater
and storm water. Technical references
from USDA and the American Society of
Agricultural Engineers should be
consulted for appropriate design factors
to consider for containment structures.
Typical design factors are: (1) Sludge
volume, (2) treatment volume, (3)
volume of manure and wastewater
between drawdown events, (4) total
volume for runoff and precipitation, and
(5) the minimum duration and intensity
rainfall event portion of (4).
For the land application area, the
permitting authority must consider
permit requirements that place
technology-based limits on discharges
resulting from the application of
manure, litter, and process wastewater
to land under the control of the CAFO
owner or operator, including restrictions
on the rates of application to ensure
appropriate agricultural utilization of
nutrients. In today's final rule, all
CAFOs must develop and implement a
nutrient management plan (as described
in the next section).
4. Will CAFOs Be Required To Develop
and Implement a Nutrient Management
Plan?
Under today's final rule, NPDES
permits for all CAFOs will require the
development and implementation of a
nutrient management plan. At a
minimum, a nutrient management plan
must include BMPs and procedures
necessary to achieve effluent limitations
and standards. The plan must, to the
extent applicable, address the following
minimum elements:
• Ensure adequate storage of manure,
litter, and process wastewater, including
procedures to ensure proper operation
and maintenance of the storage
facilities;
« Ensure proper management of
animal mortalities (i.e., dead animals) to
ensure that they are not disposed of in
any liquid manure, storm water, or
process wastewater storage or treatment
system that is not specifically designed
to treat animal mortalities;
• Ensure that clean water is diverted,
as appropriate, from the production
area;
• Prevent direct contact of confined
animals with waters of the United
States;
« Ensure that chemicals and other
contaminants handled on-site are not
disposed of in any manure, litter, or
process wastewater, or storm water
storage or treatment system, unless
specifically designed to treat such
chemicals and other contaminants;
• Identify appropriate site specific
conservation practices to be
implemented, including as appropriate
buffers or equivalent practices, to
control runoff of pollutants to waters of
the United States;
o Identify protocols for appropriate
testing of manure, litter, process
wastewater, and soil;
o Establish protocols to land ap; ply
manure, litter, or process wastewater in
accordance with site specific nutrient
management practices that ensure
appropriate agricultural utilization of
the nutrients in the manure, litter, or
process wastewater; and
« Identify specific records that will be
maintained to document the
implementation and management of the
minimum elements described above.
For Large CAFOs these minimum
elements of a nutrient management plan
must also meet the more detailed,
requirements in the part 412 effluent
guidelines. For Small and Medium
CAFOs,. or other operations not
otherwise subject to part 412
requirements for land application, the
minimum elements of a nutrient
management plan will be further
specified in the permit, on a site specific
basis, based on the best professional
judgment of the permitting authority.
What did EPA propose? In the
proposed rule, EPA introduced the
concept of a "Permit Nutrient Plan"
("PNP"), and proposed that permits for
all CAFOs would require the
development and implementation of a
PNP. For CAFOs not subject to the
ELGs, the proposal called for the
permitting authority to consider the
need for a PNP.
The concept of a PNP, as opposed to
the use of the term CNMP, was used by
EPA to identify those specific aspects of
a CNMP that would be required under
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations . 7227
the proposed regulator}' program. In the
proposal EPA included a discussion
documenting the relationship between a
CNMP and a PNP. EPA also prepared,
and made available for public review as
a supporting document, a draft guidance
document entitled Managing Manure
Nutrients at Concentrated Animal
Feeding Operations which provided
information concerning the content of a
PNP. The PNP was considered to be the
subset of activities in a USDA defined .
CNMP that relate to compliance with
the effluent discharge limitations and
other requirements of the NPDES
permit. EPA also proposed that it be
developed, or reviewed and modified,
by a certified specialist. The proposal
would have required the PNP to be
developed within 3 months of
submitting either an NOI for coverage
under an NPDES general permit or an
application for an NPDES individual
permit. CAFO operators would be
required to notify the permitting
authority when the PNP had been
developed, EPA's position was that the
content of a PNP was consistent with
that of a CNMP and could be addressed
in a single plan for a given operation.
What were the key comments? In
general, commenters supported the
concept of requiring the development
and implementation of nutrient
management plans by CAFOs. Although
commenters generally supported the
overall concept, many did not endorse
Uie specific approach taken by EPA in
the proposed rule. There was significant
comment from stakeholders that the
PNP would require the development of
a separate plan in addition to a CNMP.
Although EPA had intended the PNP to
be a subset of information contained
within a typical CNMP, not an
Independent or separate plan, a number
of commenters misunderstood that
point, and otherwise felt that the
proposal would result in confusion in
the regulated community.
The SBAR Panel noted the concerns
of some small business representatives
regarding the practical difficulties of
ensuring that manure is always applied
at agronomic rates. The Panel
recommended that EPA continue to
work with USDA to explore ways to
limit permitting requirements to the
minimum necessary to deal with such
threats and to define what is
"appropriate" land application
consistent with the agricultural storm
water exemption. The Panel agreed that
if manure and wastewater are applied to
land at agronomic rates and a facility is
designed to contain the discharge from
a 25-year, 24-hour storm, that facility
would have minimal potential to
discharge or adversely affect water
quality. However, it is also possible that
an operation might land apply in excess
of agronomic rates but still not
discharge, depending on such factors as
annual rainfall, local topography, and
distance to the nearest stream. The
Panel recommended that EPA consider
such factors as it develops requirements
related to land application.
The SBAR Panel also raised concerns
related to the development and
implementation of CNMPs, as well as
specific requirements for applying
nutrients at a phosphorous-based rather
than a nitrogen-based rate in certain
circumstances. Small business
representatives expressed concerns
about application of manure at
phosphorus-based rates. The Panel
noted the high cost of phosphorus-based
application relative to nitrogen-based
application and supported EPA's intent
to require the use of phosphorus-based
application rates only where necessary
to protect water quality, if at all, keeping
in mind its legal obligations under the
Clean Water Act. If the soil is not
phosphorus-limited, nitrogen-based
application should be allowed. The
Panel recommended that EPA consider
leaving the determination of whether to
require the use of phosphorus-based
rates to BPJ, and continue to work with
USDA in exploring such an option.
Rationale. In the March 1999 USDA/
EPA Unified National Strategy for
Animal Feeding Operations EPA and
USDA endorsed the concept of CNMPs
for all AFOs. The Strategy
acknowledged that the vast majority of
these plans would be developed under
voluntary programs while a limited
number would be prepared under the
regulatory program. In today's final rule,
CAFOs, which represent only a small
proportion of all AFOs, are required to
have a nutrient management plan, and
the nutrient management plan
represents a subset of activities within
a CNMP that are necessary for CWA
regulatory purposes. EPA believes that
this approach is consistent with the
concepts in the Strategy.
EPA explained in section IV.C.2.b
above that the BMPs specified in today's
regulation, including the requirement to
develop and implement a nutrient
management plan, represent the
minimum elements of an effective BMP
program and are necessary to control the
discharges of pollutants to surface
waters. As discussed there, non-numeric
effluent limitations consisting of BMPs .
are particularly suited to the regulation
of CAFOs. In particular, EPA believes
that it is generally infeasible to establish
a numeric effluent limitation for
discharges of land-applied CAFO waste.
The factors that make a numeric
limitation infeasible include, among
other things, that storm water discharges
can be highly intermittent, are usually
characterized by very high flows
occurring over relatively short time
intervals, and carry a variety of
pollutants whose nature and extent vary
according to geography and local land
use. Accordingly, the final regulations at
section 122.42(e) specify the need for a
nutrient management plan for all;
CAFOs and the general elements that
the plan must address.
For Large CAFOs, EPA has specified
the need for a nutrient management
plan as a non-numeric effluent
limitation in the form of a BMP
requirement under the final ELGs. For
Small and Medium CAFOs, and other
operations that are not subject to the
CAFO effluent guidelines, authority to
require a nutrient management plan
exists under Clean Water Act sections
402(a)(l) and (2) and 40 CFR 122.44(k).
EPA believes that a nutrient
management plan requirement for the
Small and Medium CAFOs is necessary
in order to appropriately control
discharges of pollutants and otherwise
carry out the purposes and intentbf the
CWA. For these operations, EPA found
it was appropriate for the final rule to
specify, on a national basis, the
requirement for a nutrient management
plan and the general elements that the
plan must address. In turn, the filial rule
allows the permitting authority to
include, on a best professional judgment
basis in light of more localized factors,
more specific nutrient management plan
requirements as necessary to ensure
appropriate agricultural utilization of
nutrients at the operation.
EPA has addressed the SBAR panel
concerns by defining the scope of a
nutrient management plan with
reference to those elements necessary to
ensure that manure is managed
effectively insofar as they are related to
possible discharges to surface water.
Further, today's final rule requires land
application rates based on the site-
specific technical standards established
by the Director.
EPA agrees that the use of the term
PNP created unintended confusion.
While EPA remains a strong advocate of
the development of CNMPs the Agency
recognized the need to address this
confusion. In response to comments,
EPA is relying on the more generic term,
"nutrient management plan" in today's
rule. By way of clarification, the
nutrient management plan is a separate
and distinct term that applies to die
subset of activities in a USDA-defined
CNMP that are required by the CAFO
effluent guidelines or NPDES permit
regulations. These requirements are
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defined in today's rule as the minimum
elements that all nutrient management
plans, developed as a special condition
of an NPDES permit, must meet. EPA
expects that many CAFOs will satisfy
the requirement to develop a nutrient
management plan by developing a full
CNMP, although a full CNMP is not
required in today's regulations. The
minimum measures of a nutrient
management plan in today's final rule
are consistent with the content of both
the PNP as proposed by EPA and the
CNMP as denned by USD A. EPA's
position remains that the development
and implementation of a full CNMP is
one of the most effective methods for a
permitted operation to demonstrate
compliance with the nutrient
management plan requirements required
by this rule.
In today's rule, EPA is requiring all
CAFOs to develop and implement a
nutrient management plan by December
31, 2006, except that CAFOs seeking to
obtain coverage under a permit ;
subsequent to that date must have a
nutrient management plan developed
and implemented upon the date of
permit coverage. This is consistent with
the dates being established for the ELG.
As discussed in section IV.C.2.b of this
preamble, the ELGs promulgated today
require Large CAFOs that are existing
sources to implement trie land
application requirements at 40 CFR
412.4(c) by December 31, 2006 because
that is the date when EPA is assured
that the required planning is in fact
available to the great number of
regulated sources. For Large CAFOs that
are new sources (i.e., those commencing
construction after the effective date of
this rule], the land application
requirements at 40 CFR 412.4(c) apply
immediately.
EPA has similarly concluded that
Small and Medium CAFOs subject to
the NPDES provisions for nutrient
management plans also, in general, will
be unable to develop and implement a
nutrient management plan by the date
they will need to seek permit coverage
under the requirements of this rule, for
reasons of insufficient infrastructure.
Therefore, EPA is requiring Small and
Medium CAFOs to develop and
implement NMP plans by December 31,
2006. As discussed in section IV.C.2.b,
among other things, this time frame
allows reasonable time for States to
update their NPDES programs and issue
permits to reflect the nutrient
management plan requirements of
today's rule and provides flexibility for
permit authorities to establish permit
schedules based on specific
circumstances, including prioritization
of nutrient management plan
development iuid implementation based
on site-specific water quality risks and
the available infrastructure for
development of nutrient management
plans. Refer to section IV.C.2.b for
additional discussion on the time frame
by which CAFOs must implement the
land application requirements of 40 CFR
412.4(c).
Through the permit application
process (every five years), a nutrient
management plan will have to be
reviewed and updated by the CAFO
owner or operator. EPA recognizes that
the nutrient management plan will be a
dynamic document that might require
updates more 'frequently than every five
years. A site-specific nutrient
management plan that reflects the
current CAFO operation must be
maintained oil-site by the CAFO owner/
operator. The most obvious factor that
would necessitate an update to the
nutrient management plan is a
substantial change in the number of
animals at the CAFO. A substantial
increase in animal numbers (for
example an increase of greater than 20
percent) would significantly increase
the volume of manure and total nitrogen
and phosphoius produced on the CAFO.
As a result, the CAFO would need to
reevaluate animal waste storage
facilities to ensure adequate capacity
and may need to reexamine the land
application sites and rates. Another
example of a reason for updating the
nutrient management plan is a change .
in a CAFO's cropping program, which
could significantly alter land
application of animal waste. Changes in
crop rotation or crop acreage, for
instance, could significantly alter land
application rates for fields receiving
animal waste, .
5. Does EPA Require Nutrient ,
Management Plans To Be Developed or
Reviewed by a Certified Planner?
Although EPA promotes and supports
the use of certified specialists to help
ensure the quality of nutrient
management plans, the Agency is not
requiring such plans to be developed or
reviewed by a certified planner as part
of this final rale.
What did EPA propose? EPA
proposed the Permit Nutrient Plans be
developed, OK reviewed and modified,
by a certified specialist. A certified
planner was defined as someone who
has been certified to prepare CNMPs by
USDA or a USDA sanctioned
organization.
What were the key comments? EPA
received a number of comments on this
provision. Many States support a State
certification program where they would
have the flexibility to develop their own
program. Some producers and
environmental groups supported
certified plans as outlined in the :
proposal. Many comments related to the
cost of having a specialist develop or
review a plan and whether there are
enough specialists across the country to
handle the volume of work. Some said
that a certified plan would not achieve
the goal of improved water quality.
Others said that operators should.be
able to develop their own plan, noting
that USDA tools and other resources are
available to operators and a specialist is
not needed. There was also concern that
EPA was limiting the type of specialist
by listing, in the proposal, examples of
who might be a specialist.
Rationale. EPA agrees that
certification programs are more
appropriately developed by USDA or at
the State level. State resources,
coordination with local stakeholders,
and State requirements relating to
nutrient management are some of the
factors that may influence State specific
certification programs. EPA shares the
concerns regarding the current capacity
to develop up to 15,500 certified plans
for CAFOs and meet the demands from
a universe of 222,000 other AFOs'
requesting CNMPs through USDA's
voluntary program. Currently, EPA does
not have a reliable estimate on the
number of certified specialists available
for developing and implementing
nutrient management plans. However,
EPA recognizes that some States already
have certification programs in place for
nutrient management planning, and
expects that the USDA and EPA '.
guidance for AFOs and CAFOs will
provide additional impetus for new and
improved State certification programs.
These programs provide an excellent
foundation for producing qualified
specialists for nutrient management
planning. When all of these State
certification programs are in place, EPA
expects that there will be sufficient
capacity to develop and implement the
required nutrient management plans by
the required regulation implementation
date of December 31, 2006.
Although not required, EPA
encourages CAFOs to make use of
certified specialists with the expertise to
develop high quality nutrient
management plans. The purpose of
using certified specialists is to ensure
that effective nutrient management
plans are developed and/or reviewed
and modified by persons who have the
requisite knowledge and expertise to
develop nutrient management plans that
meet the regulatory requirements ^and
that are appropriately tailored to the
site-specific needs and conditions at
each CAFO. Interested parties should
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consult with USDA, State Agricultural
Departments, and their NPDES
permitting authority regarding the
availability of certified specialists and
opportunities to be certified.
Under today's final rule operators
may develop and implement their own
nutrient management plan, and may
themselves become certified nutrient
management planners. In fact, EPA
indicated in the SBAR Panel Report that
it expected that many operators could
become certified through USDA or land
grant universities to prepare their own
nutrient management plans. While no
definitive number is currently available,
results from preliminary draft studies
indicate that the average CNMP cost per
farm was S7.276 per year. The list of
sources in the proposal of who can
provide CNMP certified specialists is
mere only as a sample list. It in no way
precludes or prevents an operator from
obtaining a CNMP from an alternate
source.
0. What Are the Special Conditions
Applicable to All NPDES CAFO
Permits?
In today's rule EPA is defining two
special conditions that are to be
required in all NPDES CAFO permits:
(1) CAFO owners or operators must
develop and implement a nutrient
management plan that addresses
specific minimum elements and (2) the
CAFO owner or operator must maintain
permit coverage for the CAFO until
there is no remaining potential for a
discharge of manure, litter, or associated
process wastewater other than
agricultural storm water from land
application areas, that was generated
while the operation was a CAFO (i.e.
proper closure). The special conditions
in an NPDES permit are used primarily
to supplement effluent limitations and
ensure compliance with the Clean Water
Acl.
A discussion of the specific nutrient
management plan requirements of
today's rule, the key public comments
and EPA rationale for requiring nutrient
management plans is included in
section IV.C.4 of this preamble.
In today's rule, EPA is adopting as
final the proposal to require permitted
CAFOs that lose their status as CAFOs
(e.g., they cease operations, or reduce
thoir number of animals below the
regulatory thresholds) to retain an
NPDES permit until there is no
remaining potential for a CAFO-
generated discharge other than
agricultural storm water from the land
application areas. Should the facility's
permit expire, the owner/operator
would be required to reapply for an
NPDES permit if the facility has not
been properly closed (i.e., the facility
still has a potential to discharge). Proper
facility closure includes but is not
limited to removal of water from
lagoons and proper disposal or reuse of
manure removed from storage areas
such as pens, lagoons, and stockpiles.
For CAFO facilities that down-size to
become AFOs, proper closure of the
CAFO is achieved when there is no
longer a potential to discharge any
manure, litter, or process wastewater
generated while the operation was a
CAFO.
What did EPA propose? In the
proposal, the Agency discussed a
variety of options for ensuring proper
closure of CAFOs, including applying
financial instruments, preparing closure
plans, and, as adopted today, retaining
an NPDES permit until the facility is
properly closed.
EPA proposed two additional special
conditions that are not being included
in today's final rule. EPA proposed that
the permit writer must consider whether
to include special conditions to address
(1) Timing restrictions on land
application of manure or litter and
wastewater to frozen, snow-covered, or
saturated ground, and (2) conditions to
control discharges to ground water with
a direct hydrologic connection to
surface water. Although today's rule
does not include a national requirement
for either of these issues to be regulated
in the permit, the permitting authority
may impose permit terms and
conditions that address either of these
issues on a case-by-case basis as
appropriate. See section IV.C.2.b above
for a discussion of the key comments on
these two issues and EPA's reasons for
not including 'either of them as national
requirements in today's rule.
What were the key comments?
Industry comments largely supported
the proposal to require facilities to
retain an NPDES permit until properly
closed. Some environmental groups,
U.S. Fish and Wildlife Service, some
States and citizens preferred a closure
plan with financial assurance,
expressing concern that taxpayers end
up paying to clean up abandoned
lagoons, whereas this should be the
responsibility of the CAFO operator.
Some commenters opposed the closure
requirement, stating that it was
inconsistent with and more restrictive
than NPDES requirements for other
industry sectors. Others questioned the
practical meaning of closure, as well as
the practical ability of permit authorities
to track such closed facilities.
Rationale. EPA's establishment of a
minimum national standard for closure
will help ensure the environmental risks
associated with CAFO manure and
wastewater are minimized upon closure.
Although EPA is not establishing
financial surety measures, States may
want to implement them as appropriate
under their own authorities to prevent
the environmental damage caused by
facilities that are no longer in business.
EPA concluded that requiring retention
of an NPDES permit provides a far more
effective tool for environmental
protection than would simply requiring
a closure plan that might, or might not,
be effectively implemented.
In practical terms, how clean a facility
must be to meet closure requirements
that the operation no longer has a
potential to discharge will be left to the
permitting authority. EPA is not
requiring CAFO facilities to post bonds
to obtain an NPDES permit, nor does
EPA calculate that closure costs are
necessarily high. EPA assumes that
disposal methods normal to the
operation will be used to close ouc the
facility.
The need to maintain NPDES
coverage until proper closure of the
CAFO is a result of the unique nature of
CAFO facilities. As a part of their
normal operation CAFOs may, among
other things, have manure and litter
storage structures, lagoons, and feed
storage areas. The abandonment of any
one of these has the potential for
catastrophic environmental damage to
waters of the U.S. As a result, to protect
against unauthorized discharges, there
is a need to maintain coverage of the
facility under the NPDES permit until
the facility is properly closed. Upon
verification of the proper closure of the
facility by the permitting authority there
will be no need to retain the NPDES
permit. The NPDES permit can then be
terminated and there would be no
longer any need to track the facility.
EPA expects that the State permitting
authority will cease to issue a permit
based on evidence that the facility is
properly closed. It is not expected that
this will be a major burden to the States.
7. Standard Conditions Applicable to
All NPDES CAFO Permits
Standard conditions in an NPDES
permit are preestablished conditions
that apply to all NPDES permits, as
specified in 40 CFR 122.41. They
include Duty to Comply, Duty to
Reapply, Need to Halt or Reduce
Activity Not a Defense, Duty to Mitigate,
Proper Operation and Maintenance,
Permit Actions, Property Rights, Duty to
Provide Information, Inspection and
Entry, Monitoring and Records,
Signatory Requirement, Reporting
Requirements, Bypass and Upset.
Today's action does not make any
changes to the standard permit
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72,30 federal Register/Vol. 68, No. 29 / Wednesday, February 1.2, 2003/Rules and Regulations
conditions,'with respect to NPDES
permits issued to CAFOs.
D. What Records and Reports Must Be
Kept On-Site or Submitted?.
Today's rule specifies the types of
records to be kept on-site at the CAFO
in accordance with the recordkeeping
requirements section of the permit.
Today's rule also specifies the types of
monitoring to be performed, the
frequencies for collecting samples or
data, and how to record, maintain, and
transmit the data and information to the
permitting authority in accordance with
the monitoring and reporting section of
the permit.
The specific recordkeeping,
monitoring, and reporting requirements
in today's rule balance the need for
information documenting permit
compliance and minimizing the burden
on the permittee to collect and record
data. State permit authorities have the
option to include more stringent
requirements if they find such an action
necessary. The minimum
recordkeeping, monitoring, and
reporting requirements that must be
included in each NPDES permit are as
follows:
Recordkeeping requirements. All
CAFO operators must maintain a copy
of the site specific nutrient management
plan on site, and records documenting
the implementation of the best
management practices and procedures
identified in the nutrient management
plan.
In addition, Large CAFOs must
maintain operation and maintenance
records that document (a) visual
inspections, inspection findings, and
preventive maintenance needed or
undertaken in response to the findings;
(b) the date, rate, location, and methods
used to apply manure or litter and
wastewater to land under the control of
the CAFO operator; (c) the results of
annual manure or litter and wastewater
sampling and analysis to determine the
nutrient content; and (d) the results of
representative soil sampling and
analyses conducted at least every five
years to determine nutrient content.
Large CAFOs must also maintain
records of manure transferred to other
persons that demonstrate the amount of
manure and/or wastewater that leaves
the operation and record the date, name,
and address of the recipient(s);
Today's rule requires all CAFOs to
submit an annual report that includes
the following information:
• Number and type of animals
confined (open confinement arid housed
under roof). '.
• Estimated amount of total manure,
litter, and process wastewater generated
by the CAFO in the previous 12 months
(tons/gallons);
• Estimated amount of total manure,
litter, and process wastewater
transferred to other persons by the
CAFO in the previous 12 months (tons/
gallons);
• Total number of acres for land
application covered by the nutrient
management plan;
• Total number of acres under control
of the CAFO that were used for land
application of manure, litter, and
process wastewater in the previous 12
months;
• Summary of all manure and
wastewater discharges from the
production area that have occurred in
the previous 12 months, including date, '
time, and approximate volume; and
• A statement indicating whether the
current version of the CAFO's nutrient
management plan was developed or
approved by a certified nutrient
management planner.
What did EPA propose? EPA
proposed requirements to keep,
maintain for five years, and make
available to the Director or the Regional
Administrator, records of inspections
and manure sampling and analysis,
records related to the development and
implementation of a PNP, and records of
off-site transfers of manure. EPA
proposed that CAFO operators maintain
records of off-site transfer and provide
the recipient with a brochure on proper
land application practices. EPA also
proposed a small quantity exemption
limit below which an operator would
not have to keep records of manure
transfers. EPA proposed operators
submit a cover sheet and executive •
summary of their permit nutrient plans
to the permitting authority. In addition,
the Agency proposed to require
operators to submit a written
notification to the permitting authority,
signed by a certified planner, that the
PNP has been developed or amended
and is being implemented. The proposal
required annual review of the PNP and
re-submission of the executive summary
if there were any changes to the PNP.
Today's final rule changes the
recordkeeping and reporting
requirements that were proposed in the
following ways: EPA is not requiring the
CAFO owner or operator to provide the
recipient of the manure with a brochure
that describes the recipient's
responsibilities for appropriate manure
management, and EPA is not adopting
the proposal to set a minimum quantity
exemption, such that records of manure
transfer would not be required below a
certain quantity. In addition, EPA is no
longer requiring CAFO operators to
submit with the NOI a copy of the cover
sheet and executive summary of the
CAFO operator's current Permit
Nutrient Plan (PNP).
What were the key comments? EPA
received a number of comments qn the
proposed recordkeeping, monitoring,
and reporting requirements. The
operators commented that monitoring
and reporting programs are difficult to
establish, expensive, and burdensome
on the operator. They also claimed that
these requirements would necessitate a
significant amount of operator time and
labor, and would provide opportunities
for "technical" permit violations,: with
no benefit to water quality.
Environmental groups and a majority of
citizen commenters stated that these
provisions are long overdue and any
records submitted should be made
available for public review.
The SBAR Panel recommended that
EPA give careful consideration to all
proposed recordkeeping requirements
and explore options to streamline these
requirements for small entities.
Regarding the requirement to provide
nutrient content information to manure
recipients, the Panel believed that this
would be minimally burdensomeaf
analysis of this content is already.
required as part of the CNMP to ensure
proper land application. The Panel
suggested that EPA consider limiting
any requirement to provide nutrient
content analysis to situations where
such analysis is required as part of the
CNMP to ensure proper on-site land
application, or possibly where the
operator transfers manure to multiple
recipients. Finally, the Panel noted that
under the Paperwork Reduction Act and
its implementing regulations, all
reporting and recordkeeping
requirements must be certified by the
issuing agency to have practical utility
and to reduce, to the extent practicable
and appropriate, the burden on those
required to comply, including small
entities (5 CFR 1320.9).
Rationale. The recordkeeping,
reporting, and monitoring requirements
adopted today are necessary to
demonstrate compliance with the
requirements of today's rule and assure
protection of water quality.
EPA is not requiring Small and
Medium CAFOs to maintain records of
the of the manure transferred off-site, or
provide the recipient with an analysis of
the nutrient content of the manure. As
a result, these categories of CAFOs are
relieved of the burden of keeping.
records of off-site transfer. EPA chose to
provide regulatory relief for the Medium
CAFOs by not requiring them to keep
records of their manure transferred to
third parties. EPA believes these CAFOs
have more land and therefore ship less
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manure off-site. EPA's goal is to track
the majority of the manure that is
transferred to third parties. This
information kept by the large operations
is sufficient for EPA needs.
EPA decided not to include a small
quantity exemption for off-site transfer
of manure in the final rule. The reason •
for the proposed exemption was to ;
provide record keeping relief to small
operators. However, EPA determined
that effective implementation of the
small-quantity exemption would itself
have required considerable
rocordkeeping by the operator.
Practically, then, including this
exemption would not have significantly
reduced the record keeping burden to
small operators.
The annual report, which includes
seven elements that are readily available
to the CAFO owner/operator in the
nutrient management plan, is being
required in today's rule rather than the
proposed PNP written notification,
cover sheet and executive summary.
The annual report gives the permitting
authority information on the number of
overflows occurring in a year (in order
to verify compliance with the
production area design requirements),
tho amount of manure generated, the
amount of manure transferred off-site,
and the number of acres available for
land application. The annual report also
provides information, such as the degree
to which CAFOs are expanding and
accounting for increased manure
production, which is important to
evaluate changes that might be needed
to comply with permitting
requirements. The final rule requires the
permittee to indicate whether its plan
was either written or reviewed by a
certified CNMP planner. EPA is not
requiring that a certified planner be
used to develop or review the plan
required under this rule. However, EPA
bcaeves that certified planners provide
a valuable service in plan development
such as consistency and improved plan
quality. Knowledge of which plans were
developed by a certified planner will
help EPA focus its compliance
assistance efforts and help States
determine level of permit review needed
for each facility. EPA has concluded
that the annual report is a more effective
method for ensuring permitting
authorities and EPA have basic
information documenting CAFO
performance relative to permit
requirements.
EPA disagrees with the public
comments suggesting that the
monitoring and reporting requirements
do not provide any benefit to water
quality. Monitoring and reporting
provide the basis for CAFO operators
and permitting authorities to evaluate
compliance with the requirements of
today's rule and the associated
environmental implications. Monitoring
provides valuable benchmark
information and subsequent data that a
permittee can use to adjust its activities,
better comply with the requirements of
the permit, and thereby better control its
runoff or potential runoff. Monitoring
also provides documentation of the
operation's activities, which is essential
to determine whether regulatory
requirements are being implemented
effectively and the success of those
activities in protecting water quality.
Monitoring allows the permittee and the
permitting authority to know what, if
any, contribution the permittee is
making to the degradation of water
quality. Such information is also helpful
in determining the improvements in
water quality as a result of permit
compliance activities.
In this final rule, EPA has made great
efforts to reduce burden beyond what is
noted above. EPA has eliminated all
certifications that were proposed, which
include middle category certification
that a facility is not a CAFO,
certification of off-site manure
recipients, and the use of certified
CNMP planners. In addition, EPA is not
including a national requirement for
operators to document that there is no
direct hydrological connection from ,
groundwater beneath their production
area to surface waters (or add controls
where there is such a connection).
V. States' Roles and Responsibilities
A. What Are the Key Roles of the States?
State regulatory agencies with
authorized NPDES programs are
principally responsible for
implementing and enforcing today's
rule. This final rule obligates NPDES
permit authorities to revise their NPDES
programs expeditiously and to issue
new or revised NPDES permits to
include the revised effluent guidelines
and other permit requirements adopted
today. In authorized States, their role.
would also include determinations for
no potential to discharge (see section
IV.B.2 of this preamble) and CAFO
designation (see section IV.A.7 of this
preamble) of AFOs as CAFOs.
Various State organizations, such as
environmental agencies, agricultural
agencies, conservation districts, play a
central role in implementing voluntary
and other programs (e.g., technical
assistance, funding, public involvement,
legal access to information, and setting
protocols) that support the goal of
protecting water quality through proper
management of animal manure. EPA
fully expects and promotes effective
cooperation between voluntary and
regulatory programs to achieve this goal.
In designing this final rule, EPA has
placed the principal emphasis on Large
CAFOs which are part of the base
NPDES program. With this in mind,
EPA is promoting and encouraging
States to use the full range of voluntary
and regulatory tools to address medium
and small operations.
B. Who Will Implement These New
Regulations?
The requirements of today's rule will
be implemented by issuing NPDES
permits. Today's rule will be
implemented by States with authorized
NPDES permit programs for CAFOs. As
of the date of this final rule, there are
45 States and 1 Territory with
authorized NPDES permit programs for
CAFOs. In States without an authorized
NPDES program for CAFOs and in
Indian Country, EPA will implement the
rule.
C. When and How Must a State Revise
Its NPDES Permit Program ?
NPDES regulations require State
NPDES permitting programs to be
revised to reflect today's changes within
one year of the date of promulgation of
final changes to the Federal CAFO
regulations (see 40 CFR 123.62(e)). In
cases where a State must amend or
enact a statute to conform with the
revised CAFO requirements, such
revisions must take place within two
years of promulgation of today's
regulations. States that do not have an
existing authorized NPDES permitting
program but who seek NPDES
authorization after these CAFO :
regulatory provisions are promulgated
must have authorities that meet or
exceed the revised federal CAFO
regulations at the time authorization is
requested.
Today's regulation requires States to
have technical standards for nutrient
management consistent with 40 CFR
412.4(c)(3). If the State already has
nutrient management standards in
place, it is sufficient to provide those to
EPA along with the State's submission
of regulatory revisions to conform to
today's changes. If the State has not
already established technical standards
for nutrient management, the Director
shall establish such standards by the
date specified in § 123.62(e) and provide
those to EPA along with the State's
submission of regulatory revisions.
The NPDES program modification
process is described at 40 CFR 123.62.
Opportunities for public input into the
process of review and approval of State
program revisions and approvals is
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7232 Federal Register/Vol.; 68, No. 29 / Wednesday, February 12, 2003/Rules and Regulations
effect of these proposed changes to the
structure and definition of a CAFO was
to require a substantially larger number
of medium and small operations to be
brought into the NPDES regulatory
program. EPA estimated that as many as
30,000 medium and small AFOs could
be brought into the regulatory program
under this option. Another option
presented in the proposal was to ;
structure the permitting requirements to
build in inherent flexibility for the
medium facilities. In addition, the
proposal and the subsequent 2001
Notice introduced a variety of more
specific options for State flexibility,
including one under which a State with
an effective non-NPDES program could
request to operate under a simplified
permitting structure.
What were the key comments? The
proposed expansion of the NPDES
program for medium and small
operations caused great concern,.
particularly among the States. Many
comments from both States and facility
operators centered on the desire that
EPA recognize the effectiveness of
existing State CAFO programs. More
specifically, many States wanted EPA to
allow effective State non-NPDES ;
programs to operate in lieu of a State-
run NPDES program, particularly: in the
event that EPA in the final rule
expanded the criteria for defining
medium facilities as CAFOs.
In general, comments from
environmental groups expressed [
opposition to most types of flexibility
because of concerns regarding potential
loss of accountability at facilities and
reduced public participation. Industry
commenters generally supported State
flexibility as necessary to address
factors such as soil, climate, and site
and regional characteristics that vary
within and among States. Commenters
maintained that State flexibility :
promotes those program elements States
have found to be most effective and
allows States and industry to achieve
workable solutions to water quality
issues. States also supported
maintaining a high degree of flexibility
both to accommodate State-specific
characteristics and priorities and to
preserve their investment in existing
good quality programs. Some State and
industry commenters asserted that
EPA's options for flexibility were^too
limited.
Rationale. EPA recognizes that EPA's
proposed expansion of the criteria for
when medium and small AFOs would
be defined or designated as CAFOs
would have had the effect of eliminating
the flexibility for States to use voluntary
and other programs. EPA is also ajware
that many of the States authorized to
described in section V.C of this
preamble.
D. When Must States Issue New CAFO
NPDES Permits?
EPA does not typically establish
requirements for when States must
develop and issue NPDES permits.
However, today's regulations require
CAFOs to seek NPDES permit coverage
under general permits within certain
time frames, and CAFOs may not
discharge any pollutants to waters of the
United States without a permit. Thus, it
is in States' interests to issue new or
revised NPDES permits in a timely
manner. It is EPA's expectation that new
general permits will be available ;no
later than the date on which CAFOs
have a duty to apply for an NPDES
permit. See section IV.B.3 for a full
description of when CAFOs must seek
permit coverage.
E. What Types of NPDES Permits Are
Appropriate for CAFOs?
The NPDES regulations provide the
permitting authority with the discretion
to determine the most appropriate type
of permit for a CAFO. The two basic
types of NPDES permits are individual
and general permits. An individual
permit is a permit specifically tailored
for a specific facility, while a general
permit is developed and issued by a
permitting authority to cover multiple
facilities with similar characteristics.
EPA recognizes that most CAFOs will
likely be covered by NPDES general
permits; however, there are some
circumstances where an individual
permit might be appropriate (e.g.,
exceptionally large facilities, facilities
that have a history of noncompliance, or
facilities applying for approval to use an
alternative performance standard in lieu
of baseline technology-based effluent
guidelines). The decision whether to
issue a general or individual permit lies
with the NPDES permitting authority.
Section VI of the preamble discusses
opportunity for public involvement in
the NPDES permitting process.
As permit authorities explore
innovative permitting approaches, the
use of "watershed-based NPDES
permits" might become more prevalent.
For example, a watershed-based permit
could be issued to CAFOs within a
specific watershed. EPA is currently
promoting pilot projects to help
evaluate the benefits of watershed-based
permitting and encourages States to use
such a flexible tool to address die varied
needs of specific watersheds.
F. What Flexibility Exists for States To
Use Other Programs To Support the
Achievement of the Goals of This
Regulation?
In designing this final rule, EPA has
striven to maximize the flexibility for
States to implement appropriate and
effective programs to protect water
quality and public health by ensuring
proper management of manure and
related wastewater. This rule establishes
binding legal requirements for Large
CAFOs and maintains substantial
flexibility for States to set other site-
specific requirements for CAFOs as
needed to achieve State program
objectives. EPA encourages States to
maximize use of voluntary and other
non-NPDES programs to support efforts
by medium and small operations to
implement appropriate measures and
correct problems that might otherwise
cause them to be defined or designated
as a CAFO. EPA encourages States to
use the flexibility available under the
rale so that their State non-NPDES
programs complement the required
regulatory program. The following
examples cam illustrate opportunities for
this State flexibility:
• States are encouraged to work with
State agriculture agencies, conservation
districts, USD A and other stakeholders
to create proactive programs to fix the
problems of small and medium
operations in advance of compelling the
facilities to apply for NPDES permits.
• Where a small or medium facility
has been covered by an NPDES permit,
the permitting authority may allow the
facility to exit the permit program at the
end of the 5-year permit term if the
problems that caused the facility to be
defined or designated as a CAFO have
been corrected to the satisfaction of the
permitting authority.
• A small or medium AFO might be
taking early voluntary action in good
faith to develop and implement a
comprehensive nutrient management
plan, yet might have an unexpected
situation that could be the basis for the
facility's being defined or designated as
a CAFO. EPA encourages the permitting
authority to provide an opportunity to
address the cause of the discharge
before defining or designating the
operation a CAFO.
These examples are intended to
illustrate the flexibility that EPA is
promoting 'with regard to medium and
small operations. They are not
applicable to Large CAFOs.
What did EPA propose? EPA's
proposed rule included an option to
expand substantially the criteria for
when medium and small AFOs could be
defined or designated as CAFOs. The
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implement the NPDES program
supplement their NPDES CAFO
requirements with additional State
requirements. Some States currently
regulate or manage CAFOs
predominantly under State non-NPDES
programs, or in conjunction with other
water quality protection programs
through participation in the CWA
section 401 certification process (for
permits) as well as through other means
(e.g., development of water quality
standards, development of TMDLs, and
coordination with EPA). Several States
have effective alternative or voluntary
programs that are intended to help small
andmedium operations fix potential
problems that could cause them to he
defined or designated as a CAFO.
EPA is encouraging States to use their
non-NPDES programs to help small and
medium AFOs to reduce water quality
Impacts and to ensure that they do not
become point sources under this
regulation. To the extent the voluntary
program eliminates the practice that
results in the AFO's being defined or
designated a CAFO, the AFO may not be
required to obtain NPDES permit
coverage. Given that EPA has not
expanded the criteria for when AFOs
would be defined as CAFOs, the Agency
believes that States will have the
flexibility necessary to leverage effective
non-NPDES programs for medium and
small AFOs. EPA has also offered
specific examples of flexibility that
permitting authorities can exercise.
Once a facility is determined to be a
CAFO, however, coverage under a
permit issued by a non-NPDES program
will not satisfy the NPDES permit
requirement. EPA is committed to work
with Slates to modify existing non-
NPDES State programs that currently
regulate CAFOs to gain EPA's approval
as NPDES-authorized programs. Such a
change would require a formal
modification of the State's authorized
NPDES program, and the State would
have to demonstrate that its program
moots all of the minimum criteria
specified in 40 CFR part 123, Subpart B,
for substantive and procedural
regulations. Among other things, these
criteria include the restriction that
permit terms may not exceed five years,
procedures for public participation, and
provisions for enforcement, including
third party lawsuits and federal
onforceability.
VI. Public Role and Involvement
The public has an important role in
the entire implementation of the NPDES
Program, including the implementation
of NPDES permitting of CAFOs. The
NPDES regulations in 40 CFR parts 122,
123, and 124 establish public
participation in EPA and State permit
issuance, in enforcement, and in the
approval and modification of State
NPDES Programs. The purpose of this
section is to provide a brief review of
the key areas where the public has
opportunities for substantial
involvement. These opportunities for
public involvement are long-standing
elements of the NPDES Program.
Nothing in today's final rule is intended
to inhibit public involvement in the
NPDES Program.
A. How Can the Public Get Involved in
the Revision and Approval of State
NPDES Programs?
Sections 123.61 and 123.62 of the
NPDES regulations specify procedures
for review and approval of State NPDES
Programs. In the case of State
authorization or a substantial program
modification, EPA is required to issue a
public notice, provide an opportunity
for public comment, and provide for a
public hearing if there is deemed to be
significant public interest. To the extent
that these final regulations require a
substantial modification to a State's
existing NPDES Program authorization,
the public will have an opportunity to
comment on the proposed
modifications.
B. How Can the Public Get Involved if
a State Fails To Implement Its CAFO
NPDES Permit Program?
Section 123.64 of the NPDES
regulations provides that any individual
or organization having an interest may
petition EPA to withdraw a State
NPDES Program for alleged failure of
the State to implement the NPDES
permit program, including failure to
implement the CAFO permit program.
C. How Can the Public Get Involved in
NPDES Permitting of CAFOs?
Section 124.10 establishes public
notice requirements for NPDES permits,
including those issued to CAFOs. Under
these existing regulations, the public
may submit comments on draft
individual and general permits and may
request a public hearing on such a
permit. Various sections of part 122 and
§ 124.52 allow the Director to determine
on a case-by-case basis that certain
operations may be required to obtain an
individual permit rather than coverage
under a general permit. Section 124.52
specifically lists CAFOs as an example
point source where such a decision may
be made. Furthermore, § 122.28(b)(3)
authorizes any interested person to
petition the Director to require an entity
authorized by a general permit to apply
for and obtain an individual permit.
Section 122.28(b)(3) also provides
example cases where an individual
permit may be required, including
where the discharge is a significant
contributor of pollutants. See
§ 122.23(f)(3) for opportunities for
public involvement in the process for
making a "no potential to discharge"
determination (refer to section IV:B.2 of
this preamble for further discussion).
Nothing in today's final rule is intended
to change these provisions.
D. What Information About CAFOs Is
Available to the Public?
Today's rule requires that all CAFOs,
Large, Medium, and Small, and whether
covered by a general or an individual
permit, report annually to the
permitting authority the following
information:
• The number and type of animals,
whether in open confinement or housed
under roof;
• The estimated amount of total
manure, litter and process wastewater
generated by the CAFO in the previous
12 months;
• The estimated amount of total
manure, litter and process wastewater
transferred to other person by thetCAFO
in the previous 12 months;
• The total number of acres for'land
application covered by the nutrient
management plan;
• The total number of acres under
control of the CAFO that were used for
land application of manure, litter, and
process wastewater in the previous 12
months;
• A summary of all manure, litter and
process wastewater discharges from the
production area that have occurred in
the previous 12 months, including date,
time, and approximate volume; and
• A statement indicating whether the
current version of the CAFO's nutrient
management plan was developed or
approved by a certified nutrient
management planner.
EPA expects that the permitting
authority will make this information
available to the public upon request.
This should foster public confidence
that CAFOs are complying with the
requirements of the rale, hi particular,
the information in the annual report
will confirm that CAFOs have obtained
coverage under an NPDES permit' are
appropriately controlling discharges
from the production area, and have
developed and are implementing a
nutrient management plan. The annual
report will also provide summary
information on discharges from the
production area and the extent of
manure production and availableiland
application area. This will help foster
public confidence that the manure is
being land applied at rates that ensure
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7234 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
appropriate agricultural utilization of
nutrients.
Today's rule makes no changes to the
existing regulations concerning how
CAFOs may make Confidential Business
Information (CBI) claims with respect to
information they must submit to the
permitting authority and how those
claims will be evaluated. Under the
existing regulations at 40 CFR Part 2,
Subpart B, a facility may make a claim
of confidentiality for information it
must submit and EPA must evaluate this
claim if it receives a request for the
information from the public. Among the
factors that EPA considers in evaluating
such a claim are:
• Must the information be legally
provided to the public under the Clean
Water Act, its implementing regulations,
or other authorities? If so, a claim of
confidentiality will be denied.
• Has the facility adequately shown
that the information satisfies the
requirements for treatment as'CBI? If
yes, the claim of confidentiality will be
upheld.
Claims of confidentiality with respect
to information submitted to the State
will be processed and evaluated under
State regulations.
What was proposed? In the proposal,
EPA discussed submission of the PNP to
the permitting authority and its
availability to the public. The proposed
regulations would have required the
cover sheet and executive summary of
each CAFO's PNP to be made publicly
available. EPA proposed that the
information contained in these items
could not be claimed as CBI. The
proposed regulations indicated that
anything else in the PNP could be
claimed as confidential by the CAFO,
and any such claim would be subject to
EPA's normal CBI procedures in 40 CFR
Part 2. See § 122.23(1) of the proposal.
Key comments. Industry commenters
claimed that the PNP would contain
proprietary information. They stated
that EPA should protect these plans as
CBI where requested by the CAFO. They
claimed that making the PNP publicly
available would discourage innovation
in developing waste management
technologies and could make CAFOs
vulnerable to unwarranted lawsuits.
Environmental groups stated that the
PNP must be publicly available, or
citizens would have no way of ensuring
that CAFOs are adequately developing
and implementing the PNPs. They also
expressed concerns about the burden of
traveling to the permitting authority's
offices to gain access to the plans. They
stated that the plans should be made
more accessible to them by the
permitting authority, either by mail or
by posting on the internet.
Rationale. The final CAFO regulations
require that various types of information
on the operation and waste management
practices .of the facility be made
available to the permitting authority,
either routinely or upon request. The
permitting authority has discretion,
subject to applicable regulations, to
determine how much of this
information to make available to the
public and in what manner. The Annual
Report that all CAFOs must submit is
designed to provide the permitting
authority with summary information
about the implementation of the
nutrient management plan. EPA
believes that the information the public
is most interested in seeing is contained
in the Annual Reports.
With respect to the contents of the
nutrient management plan, specifically,
today's rule requires that the nutrient
management plan be maintained on-site
at the CAFO and submitted only at the
request of the permitting authority.
Upon submission of the nutrient
management plan to the permitting
authority, the CAFO operator can assert
a confidential business information
claim over the plan, in accordance with
applicable regulations. If the permitting
authority receives a request for the
information, it will determine the
validity of the claim and provide the
requester with information in
accordance with the findings of the
determination and applicable
regulations.
As noted, today's rule makes no
changes to the existing regulations
concerning how facilities may make CBI
claims with respect to information they
must submit to the permitting authority
and how those claims will be evaluated.
Any changes to how the Agency handles
the issue of confidential business
information are beyond the scope of
today's rule and would have broad
implications across a number of EPA
programs. Instead EPA will evaluate
future CBI claims based on the
applicable laws and regulations (see,
e.g., CWA Section 402(j), 40 CFR Part 2,
Subpart B, and 40 CFR 122.7.
VII. Environmental Benefits of the Final
Rule
A. Summary of the Environmental
Benefits
This section presents EPA's estimates
of the environmental and human health
benefits, including pollutant reductions,
that will occur from this rule. Table 7.1
shows the annualized benefits EPA
projects will result from the revised ELG
requirements for Large CAFOs.
(Monetized values for benefits
associated with the revised NPDES
requirements for Small and Medium
CAFOs are not included in the table.)
The total monetized benefits associated
with the ELG requirements for Large
CAFOs range from $204 to $355 million
annually. The values presented in the
range represent those benefits for which
EPA is able to quantify and determine
an economic value. These benefit value
estimates reflect only those pollutant
reductions and water quality
improvements attributable to Large
CAFOs. EPA also developed estimates
of the pollutant reductions that will
occur due to the revised requirements
for Small and Medium CAFOs, but
analysis of the monetized value of the
associated water quality improvements
was not completed in time for benefits
estimates to be presented here. As
discussed later in this section, EPA has
also identified additional environmental
benefits that will result from this rule
but is unable to attribute a specific
economic value to these additional
nonmonetized or nonquantified
benefits.
Detailed information on the estimated
pollutant reductions is provided in the
Technical Development Document,
which is in the docket for today's rule.
EPA's detailed assessment of the
environmental benefits that will be
gained by this rule, as well as the
benefits estimates for other regulatory
options considered during this
rulemaking, is presented in the Benefits
Analysis, which is also available in the
rulemaking docket.
TABLE 7.1.—ANNUALIZED BENEFITS OF ELG REQUIREMENTS FOR LARGE CAFOs
[Millions of 2001$]
Types of benefits
Total for all CAFOs
Recreational and non-use benefits from improved water quality in freshwater rivers, streams, and
lakes.
Reduced fish kills ;., —
Improved shellfish harvests
$166.2 to $298.6.
$0.1. --1
$0.3 to $3.4.
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TABLE 7.1.—ANNUALIZED BENEFITS OF ELG REQUIREMENTS FOR URGE CAFOs—Continued
[Millions of 2001$]
Types of benefits
Total for all CAFOs
Reduced nitrate contamination of private wells
Roducod eutrophication & pathogen contamination of coastal & estuarine waters (Case study of po-
tential fishing benefits to the Albemarle-Pamlico estuary).
Reduced public water treatment costs
Reduced livestock mortality from nitrate arid pathogen contamination of livestock drinking water"!'.!!."!
Reduced pathogen contamination of private & public underground sources of drinking water !!
Reduced human & ecological risks from antibiotics, hormones, metals, salts
Improved soil properties !.!!.!!!!!!!!.'!!!
Reduced cost of commercial fertilizers for non-CAFO operations ....
Total benefits
$30.9 to $45.7.
Not monetized [$0.2].
$1.1 to $1.7.
$5.3.
Not monetized.
Not monetized.
Not monetized.
Not monetized.
$204.1 + [B] to $355.0 + [B],
[BJ represents non-monetized benefits of the rule.
B. What Pollutants Are Present in
Manure and Other CAFO Wastes, and
How Do They Affect Human Health and
the Environment?
I. What Pollutants Are Present in
Animal Waste?
The primary pollutants associated
with animal wastes are nutrients
(particularly nitrogen and phosphorus),
organic matter, solids, pathogens, and
odorous/volatile compounds. Animal
waste is also a source of salts and trace
elements and, to a lesser extent,
antibiotics, pesticides, and hormones.
Tho composition of manure at a
particular operation depends on the
animal species, size, maturity, and
health, as well as on the composition
(e.g., protein content) of animal feed.
The sections below introduce the main
constituents in animal manure and
include information from the National
Water Quality Inventory: 2000 Report
(hereinafter the "2000 Inventory"]. This
report is prepared every 2 years under
section 305(6) of the Clean Water Act,
and it summarizes State reports of
impairment to their water bodies and
the suspected sources of those
impairments.
a. Nutrients. Animal wastes contain
significant quantities of nutrients,
particularly nitrogen and phosphorus.
Tho 2000 Inventory lists nutrients as the
loading stressor of impaired lakes,
ponds, and reservoirs. Nutrients are also
ranked as the fifth leading stressor for
impaired rivers and streams, are among
the top 10 stressors of impaired
estuaries, and are the second leading
stressor reported for the Great Lakes.
Manure nitrogen occurs in several
forms, including ammonia and nitrate.
Ammonia and nitrate have fertilizer
value for crop growth, but these forms
of nitrogen can also produce adverse
environmental impacts when they are
transported in excess quantities to the
environment. Ammonia is of
environmental concern because it is
toxic to aquatic life and it exerts a direct
BOD on the receiving water, thereby
reducing dissolved oxygen levels and
the ability of a water body to support
aquatic life. Excessive amounts of
ammonia can lead to eutrophication, or
nutrient overenrichment, of surface
waters. Nitrate is a valuable fertilizer
because it is biologically available to
plants. Excessive levels of nitrate in
drinking water, however, can produce
adverse human health impacts.
Phosphorus is of concern in surface
waters because it is a nutrient that can
lead to eutrophication and the resulting
adverse impacts—fish kills, reduced
biodiversity, objectionable tastes and
odors, increased drinking water
treatment costs, and growth of toxic
organisms. At concentrations greater
than 1.0 milligrams per liter,
phosphorus can interfere with the
coagulation process in drinking water
treatment plants thus reducing
treatment efficiency. Phosphorus is of
particular concern in fresh waters,
where plant growth is typically limited
by phosphorus levels. Under high
pollutant loads, however, fresh water
may become nitrogen-limited. Thus,
both, nitrogen and phosphorus loads can
contribute to eutrophication.
b. Organic matter. Livestock manures
contain many carbon-based,
biodegradable compounds. Once these
compounds reach surface water, they
are decomposed by aquatic bacteria and
other microorganisms. During this
process dissolved oxygen is consumed,
which in turn reduces the amount of
oxygen available for aquatic animals.
The 2000 Inventory indicates that low
dissolved oxygen levels caused by
organic enrichment (oxygen-depleting
substances) are the third leading stressor
in impaired estuaries. They are the
fourth greatest stressor in impaired
rivers and streams, and the fifth leading
stressor in impaired lakes, ponds, and
reservoirs. Severe reductions in
dissolved oxygen levels can lead to fish
kills. Even moderate decreases in
oxygen levels can adversely affect water
bodies through decreases in biodiversity
characterized by the loss offish and
other aquatic animal populations, and a
dominance of species that can tolerate
low levels of dissolved oxygen.
c. Solids. The 2000 Inventory-
indicates that dissolved solids are the
fourth leading stressor in impaired
lakes, ponds, and reservoirs. Solids from
animal manure include the manure
itself and any other elements that have
been mixed with it. These elements can
include spilled feed, bedding and litter
materials, hair, and feathers. In general,
the impacts of solids include increasing
the turbidity of surface waters,
physically hindering the functioning of
aquatic plants and animals, and
providing a protected environment for
pathogens. Increased turbidity reduces
penetration of light through the water
column, thereby limiting the growth of
desirable aquatic plants that serve as a
critical habitat for fish, shellfish, and
other aquatic organisms. Solids that
settle out as bottom deposits can alter or
destroy habitat for fish and benthic
organisms. Solids also provide a ;
medium for the accumulation, transport,
and storage of other pollutants,
including nutrients, pathogens, and
trace elements.
d. Pathogens. Pathogens are defined
as disease-causing microorganisms. A
subset of microorganisms, including
species of bacteria, viruses, and •
parasites, can cause sickness and •
disease in humans and are known as
human pathogens. The 2000 Inventory
indicates that pathogens (specifically
bacteria) are the leading stressor in
impaired rivers and streams and the
fourth leading stressor in impaired
estuaries. Livestock manure may
contain a variety of microorganism
species, some of which are human
pathogens. Multiple species of .
pathogens can be transmitted directly
from a host animal's manure to surface
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7236 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
water, and pathogens already in surface
water can increase in number because of
loadings of animal manure nutrients
and organic matter. ..
More than 150 pathogens found in
livestock manure are associated with
risks to humans, including the six
human pathogens that account for more
than 90% of food and waterborne
diseases in humans. These organisms
are: Campylobacter spp., Salmonella
spp. (non-typhoid), Listeria
monocytogenes, Escherichia coli
Ol57:H7, Cryptosporidium parvum, and
Giardia lamblia. All of these organisms
may be rapidly transmitted from one
animal to another in CAFO settings. An
important feature relating to the;
potential for disease transmission for
each of these organisms is the relatively
low infectious dose in humans. The
protozoan species Cryptosporidium
parvum and Giardia lamblia are
frequently found in animal manure.
Bacteria such as Escherichia coli
O157:H7 and Salmonella spp. are also
often found in livestock manure and
have been associated.with waterborne
disease. The bacteria Listeria
monocytogenes is ubiquitous in nature
and is commonly found in the intestines
of wild and domestic animals.
e. Other potential contaminants.
Animal wastes can contain other
chemical constituents that could
adversely affect the environment. These
constituents include salts, trace
elements, and pharmaceuticals,
including antibiotics and hormones.
Although salts are usually present in
waste regardless of animal or feed type,
trace elements and pharmaceuticals are
typically the result of feed additives to
help prevent disease or promote growth.
Accordingly, concentrations of these
constituents vary with operation type
and from facility to facility. The other
constituents present in animal wastes
are summarized below. Additional
information on animal wastes is
presented in the preamble for the
proposed rule (see 66 FR 2976-42979)
and the Technical Development
Document.
Salts. The salinity of animal manure
is directly related to the presence of
dissolved mineral salts. In particular,
significant concentrations of soluble
salts containing sodium and pqtassium
remain from undigested feed that passes
unabsorbed through animals. Other
major constituents contributing to
manure salinity are calcium,
magnesium, chloride, sulfate,
bicarbonate, carbonate, and nitrate. Salt
buildup may deteriorate soil structure,
reduce permeability, contaminate
ground water, and reduce crop yields. In
fresh waters, increasing salinity can
disrupt the balance of the ecosystem,
making it difficult for resident species to
remain. Salts may also contribute to
degradation: of drinking water supplies.
Trace elements. The 2000 Inventory
indicates that metals are the leading
stressor in impaired estuaries and the
second leading stressor in impaired
lakes. Trace elements in manure that are
of environmental concern include
arsenic, copper, selenium, zinc,
cadmium, molybdenum, nickel, lead,
iron, manganese, aluminum, and boron.
Of these, arsenic, copper, selenium, and
zinc are often added to animal feed as
growth stimulants or biocides. Trace
elements can also end up in manure
through use of pesticides, which are
applied to livestock to suppress
houseflies and other pests. Trace
elements have been found in manure
lagoons and in drainage ditches,
agricultural drainage wells, and tile line
inlets and outlets. They have also been
found in rivers adjacent to hog and
cattle operations. Trace elements in
agronomically applied manures are
generally expected to pose little risk to
human health and the environment
However, repeated application of
manures above agronomic rates could
result in cximulative metal loadings to
levels that potentially affect human
health and the environment. There is
some evidence that this is happening.
For example, in 1995, zinc and copper
were found building to potentially
harmful levels on the fields of a hog
farm in North Carolina.
Antibiotics. Antibiotics are used in
AFOs and can be expected to appear in
animal wastes. Antibiotics are used both
to treat illness and as feed additives to
promote growth or to improve feed
conversion efficiency. Between 60 and
80 percent of all livestock and poultry
receive antibiotics during their
productive-life'span. The primary
mechanisms of elimination are in urine
and bile, so 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 then-
fate and transport in the environment.
One concern regarding the widespread
use of antibiotics in animal manure is
the development of antibiotic-resistant
pathogens. Use of antibiotics, especially
broad-spectrum antibiotics, in raising
animals is' increasing. This could be
contributing to the emergence of more
strains of antibiotic-resistant pathogens,
along with strains that are growing more
resistant.
Pesticides and hormones. Pesticides
and hormones are compounds used at
AFOs and they can be expected to
appear in animal wastes. These types of
pollutants may be linked with
endocrine disruption. The 2000 .
Inventory indicates that pesticides are
the second leading stressor in impaired
estuaries. Pesticides are applied to
livestock to suppress houseflies and
other pests. There has been very little
research on losses of pesticides in runoff
from manured lands. A 1994 study
showed that losses of cyromazine: (used
to control flies in poultry litter) in
runoff increased with the rate of joultry
manure and litter applied and the.
intensity of rainfall. Specific hormones
are used to increase productivity in the
beef and dairy industries. Several
studies have shown hormones are
present in animal manures. Poultry
manure has been shown to contain both
estrogen and testosterone. 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.
2. How Do These Pollutants Reach
Surface Waters?
Pollutants in animal waste and
manure can enter the environment
through a number of pathways,
including surface runoff and erosion,
direct discharges to surface water, spills
and other dry-weather discharges,
leaching into soil and ground water, and
volatilization of compounds (e.g.,
ammonia) and subsequent redepdsition
to the landscape. These discharge's of
manure pollutants can originate from
animal confinement areas, manure
handling and containment systems,
manure stockpiles, and cropland where
manure is spread.
Runoff and erosion occur during
rainfall when rainwater fails to be
absorbed into the ground and when the
soil surface is worn away by water or
wind. Runoff of animal wastes is more
likely when rainfall occurs soon after
application (particularly if the manure
was not injected or incorporated) and
when manure is overapplied or
misapplied. Erosion can be a significant
transport mechanism for land applied
pollutants, such as phosphorus, that are
strongly bonded to soils.
Pollutants are directly discharged to
surface water when animals are allowed
access to water bodies and wjien
manure storage areas overflow. Dry
weather discharges to surface waters
associated with CAFOs have been
reported to occur through spills or other
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7237'
accidental discharges from lagoons and
irrigation systems, or through
intentional releases. Other reported
causes of discharge to surface waters are
overflows from containment systems
following rainfall, catastrophic spills
from failure of manure containment
systems, and washouts from floodwaters
when lagoons are sited on floodplains or
from equipment malfunction, such as
pump or irrigation gun failure, and
breakage of pipes or retaining walls.
It is well established that in many
agricultural areas shallow ground water
can become contaminated with manure
pollutants. This occurs as a result of
water traveling through the soil to the
ground water and taking with it
pollutants such as nitrate from livestock
and poultry wastes on the surface.
Leaking lagoons are also a potential
source of manure pollutants in ground
water, based on findings reported in the
scientific and technical literature.
Pollutants from CAFO wastes are
released to air through volatilization of
manure constituents and the products of
manure decomposition. Other ways that
manure pollutants can enter the air is
from spray irrigation systems and as
wind-borne particulates in dust. Once
airborne, these pollutants can find their
way into nearby streams, rivers, and
lakes as they are subsequently
rodeposited on the landscape. More
detailed information on the transport of
animal wastes is presented in the
Benefits Analysis and the record.
3. How Is Water Quality Impaired by
Animal Wastes?
EPA has made significant progress in
implementing Clean Water Act
programs and in reducing water
pollution. Despite such progress,
however, serious water quality problems
persist throughout the country. Sources
of information on these problems
include reports from States to EPA,
documented in the 2000 Inventory, and
the U.S. Geological Survey's National
Water Quality Assessment (NAWQA)
Program.
a. EPA's national water quality
Inventory. Agricultural operations,
including CAFOs, are a significant
contributor to the remaining water
pollution problems in the United States,
as reported by the 2000 Inventory. EPA's
2000 Inventory data indicate that the
agricultural sector—including crop
production, pasture and range grazing,
concentrated and confined animal
feeding operations, and aquaculture—is
the leading contributor to identified
water quality impairments in the
nation's rivers and streams, lakes,
ponds, and reservoirs. Agriculture is
also identified as the fifth leading
contributor to identified water quality
impairments in the nation's estuaries.
While the 2000 Inventory does not
generally separate effects of CAFOs from
agriculture generally, EPA's data
indicate that water quality concerns
tend to be greatest in regions where
crops are intensively cultivated and
where livestock operations are
concentrated.
The 2000 Inventory data indicate that
the agricultural sector contributes to the
impairment of at least 129,000 river
miles, 3.2 million lake acres, and more
than 2,800 estuarine square miles.
Forty-eight States and tribes identified
agricultural sector activities
contributing to water quality impacts on
rivers; 40 States identified such impacts
to lakes, ponds, and reservoirs; and 14
States reported such impacts on
estuaries. AFOs are only a subset of the
agriculture category, but 29 States
specifically identified them as
contributing to water quality
impairment.
The leading pollutants impairing
surface water quality in the United
States as identified in the 2000
/nvantory data include nutrients,
pathogens, sediment/siltation, and
oxygen-depleting substances. These
pollutants can originate from various
sources, including the animal
production industry. Animal production
facilities may also discharge other
pollutants, such as metals and
pesticides, and can contribute to the
growth of noxious aquatic plants due to
the discharge of excess nutrients.
These data provide a general
indication of national surface water
quality, highlighting the magnitude of
water quality impairment from
agriculture and the relative contribution
compared to other sources. Moreover,
the findings of this report are
corroborated by numerous reports and
studies conducted by government and
independent researchers that identify
agriculture's predominance as an
important contributor of surface water
pollution, as summarized in the
Environmental Assessment of Revisions
to the National Pollutant Discharge
Elimination System Regulation and the
Effluent Guidelines for Concentrated
Animal Feeding Operations, which is
available in EPA's rulemaking record.
b. Other documented impacts on
water quality. Data collected by
NAWQA also identify agriculture
among the leading contributor of
nutrients to U.S. watersheds. A national
water quality assessment program
conducted by the U.S. Geologic Survey
found that agricultural use of fertilizers,
manure, and pesticides has degraded
stream and shallow ground water
quality in agricultural areas and has
resulted in high concentrations of
nitrogen. Subsequent measurements in
specific major river basins suggest that
animal feeding operations may play a
significant role in observed water:
quality degradation in those basins (e.g.,
Kalkhoff et al, 2000; Groschen etal,
2000). Finally, a 1997 study by Smith et
al. characterizing spatial and temporal
patterns in water quality identified
animal waste as a significant source of
in-stream nutrient concentrations: in
many watershed outlets, relative to
other local sources, particularly in the
central and eastern United States. The
findings of this report suggest that
livestock waste contributes more than
commercial fertilizer use to local total
phosphorus yield, whereas the use of
commercial fertilizer is the leading
source of local total nitrogen yield.
Numerous local, regional, and
national evaluations also indicate that
animal manure can be a significant
source of pollutants that contribute to
water quality degradation. A literature
survey conducted for the proposed rule
identified more than 150 reports of
discharges to surface waters from hog,
poultry, dairy, and cattle operations.
Over 30 separate incidents of discharges
from swine operations between the
years 1992 and 1997 in Iowa alone were
reported by that State's Department of
Natural Resources. The incidents!
resulted in fish kills ranging from about
500 to more than 500,000 fish killed per
event. Fish kills or other environmental
impacts have also been reported by
agencies in other States, including
Nebraska, Maryland, Ohio, Michigan,
and North Carolina.
Runoff of nutrients and other
contaminants in animal manure and
wastewater also contributes to
degradation of U.S. waters. For example,
nutrients originating from livestock and
poultry operations in the Mississippi
River Basin have been identified as
contributing to the largest hypoxi'c zone
in U.S. coastal waters in the northern
Gulf of Mexico. (Hypoxia is the
condition in which dissolved oxygen is
below the level necessary to sustain
most animal life.) According to a report
conducted by the National Science and
Technology Council in 2000, adverse
impacts of eutrophication might be of
concern for ecologically and
commercially important species in the
Gulf, whose fishery resources generate
$2.8 billion annually. Animal manure
also contributes to eutrophication, or
nutrient overenrichment, which is also
a serious concern for the Nation's
coastal and estuarine resources.
More detailed information is
presented in the 2001 proposal (66 FR
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7238 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
2972—2974) and in the record for this
rulemaking.
4. What Ecological and Human Health
Impacts Have Been Caused by CAFO
Wastes?
Among the reported environmental
problems associated with animal
manure are surface and ground water
quality degradation, adverse effects on
estuarine water quality and resources in
coastal areas, and effects on soil and air
quality. The scientific literature, which
.spans more than 30 years, documents
how these problems can contribute to
increased risk to aquatic and wildlife
ecosystems, for example, the large
number of fish kills in recent years.
Human health might also be affected, for
example, by high nitrate levels in
drinking water and exposure to
waterborne human pathogens and other
pollutants in manure. The record for
this rule provides more detailed ••
information on the scientific and
technical research to support these
findings.
a. Ecological impacts. Manure
pollutants in surface waters contribute
to eutrpphication, the disruption of a
water body due to overenrichment.
Eutrophication is the most documented
impact of nutrient pollution and is a
serious concern for coastal and
estuarine resources. Another negative
impact generated by excess nutrients in
surface water is algae blooms, which
also result from overenrichment from
nutrients. Such blooms depress oxygen
levels and contribute further to
eutrophication. Many lake and coastal
problems are linked to eutrophication,
including red tides, fish kills, outbreaks
of shellfish poisonings, loss of habitat,
coral reef destruction, and.hypoxia.
Many of the constituents in manure,
especially organic matter, also decrease
the oxygen concentrations in surface
waters, sometimes below the levels fish
and invertebrates require to survive.
Nitrites and pathogens in manure can
also pose risks to aquatic life. If
sediments are enriched by nutrients, the
concentrations of nitrites in the
overlying water may be raised enough to
cause nitrite poisoning in fish. There is
substantial information in the record for
this rule that describes local, regional,
and national evaluations indicating that
animal manure is a significant source of
pollutants that contribute to water
quality degradation. Many of these
evaluations note a high incidence of fish
kills. EPA's analysis shows that between
1981 and 1999, 19 States reported 4
million fish killed from both runoff and
spills at CAFOs.
In addition, excess nitrogen can
• contribute to water quality decline by
increasing the acidity of surface waters.
Pathogens can accumulate in fish and
shellfish, resulting in a pathway for
transmission to higher trophic
organisms; they can also contribute to
avian botulism and avian cholera.
Additional information on fish kills and
other adverse impacts is presented in
the 2001 proposal (66 FR 2972-2974)
and in the record for this rulemaking.
b. Human health impacts from
affected drinldng water. Pollution
originating from an animal production
facility can have multiple impacts on
drinking water. Nitrogen in manure is
easily transformed into the nitrate form,
which can be transported to drinldng
water sources and present a range of
health risks. These health risks include
methemoglobinemia in infants,
spontaneous abortions, and increased
incidence of stomach and esophageal
cancers. Nitrate is not removed by
conventional drinking water treatment
processes but. requires additional,
relatively expensive treatment units.
California's Chino Basin estimates a cost
of more than $1 million per year to
remove nitrates from drinking water due
to loadings from local dairies. Generally,
people drawing water from domestic
wells are at greater risk of nitrate
poisoning than those drawing from
public water sources, because domestic
wells are typically shallower and not
subject to wellhead protection
monitoring or treatment requirements.
Salts in animal wastes can also pose
a health hazaucd. At low levels, salts can
increase blood pressure in salt-sensitive
individuals, increasing their risk of
stroke and heart attacks. The salt load
into the Chino Basin from local dairies
is more than 1,500 tons per year, which
costs the drinking water treatment
system between $320 and $690 per ton
to remove.
To the extent that nutrients contribute
to algae blooms in surface water through
accelerated eutrophication, algae can
affect drinking water by clogging
treatment plant intakes, producing
objectionable tastes and odors,,and
increasing production of harmful
chlorinated by-products (e.g.,
trihalomethanesj by reacting with
chlorine used to disinfect drinking
water. In Wisconsin, the City of
Oshkosh has spent an extra $30,000 per
year on copper sulfate treatment to kill
the algae in the waters from Lake
Winnebago, which is attributed to
excess nutrients from animal manure,
commercial fertilizers, and soil. In
Tulsa, Oklahoma, excessive algae
growth in Lake Eucha, associated with
poultry farming, costs the city $100,000
per year to address taste and odor
problems in the drinking water.
c. Other human health impacts. In
addition to threats to human health
through drinking water exposures,
pathogens from animal manure can also
threaten human health through shellfish
consumption and recreational contact
such as swimming in contaminated
waters. Relatively low-dose exposures to
Cryptosporidium parvum and Giqrdia
spp. can cause infection iri humans.
Other bacteria found in livestock;
manure have also been associated with
waterborne disease. Pathogens from
animal wastes can readily enter water
sources, resulting in contamination of
surface waters. Some pathogens are able
to survive and remain infectious in the
environment for relatively long periods
of time. U.S. federal agencies and! other
independent researchers have
recognized'the potential public health
risks from pathogens originating from
CAFOs. At this time, however, the
magnitude of the human health risk
from pathogenic organisms that directly
originate from CAFOs and are
transported through U.S. waters has not
been established.
According to a United Nations report,
the use of antibiotics in food-producing
animals has the potential to affect
human health because of the presence of
drug residues in foods and also because
of the selection of resistant bacteria in
animals. However, the impact of
antimicrobial metabolic products and
nonmetabolized drugs in animal wastes
that are released into the environment
remains unclear. The emergence of
resistant bacteria is of particular
concern because such infections are
more difficult to treat and require drugs
that are often less readily available,
more expensive, and more toxic. In the
U.S., pilot studies coordinated by EPA,
USDA, and the Centers for Disease
Control have been initiated to assess the
extent of environmental contamination
by antimicrobial drug residues and
drug-resistant organisms that enter the
soil or water from human and animal
waste.
C. How Will Water Quality and Human
Health Be Improved by This Rule?
1. What Reductions in Pollutant
Discharges Will Result From This. Rule?
EPA's pollutant reductions for this
rule focus to a large degree on
estimating the amount of pollutants in
the runoff from land where manure has
been applied. These estimates of :
pollutant discharges, referred to as the
"edge-of-field" loadings, were made for
nutrients, metals, pathogens, and
sediment for both pre-rule conditions
(baseline) and post-rule conditions. The
reductions in pollutant discharges were
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7239
estimated using an environmental
model (Groundwater Loading Effects of
Agricultural Management Systems, or
GLEAMS) that simulates hydrologic
transport, erosion, and biochemical
processes such as chemical
transformation and plant uptake. The
GLEAMS model uses information on
soil characteristics and climate,'along
with characteristics of the applied
manure and commercial fertilizers, to
model losses of nutrients, metals,
pathogens, and sediment in surface
runoff, sediment, and ground water
Icachate. EPA's analysis also developed
estimates of changes in pollutant
discharges occurring at the production
area.
The pollutant reduction estimates
were developed for each type of model
farm included in EPA's cost models.
The model farms were developed to
represent the various animal types, farm
sizes, and geographic regions. Model
farms were developed for each animal
type across a range of size classes, and
model farms were located in each
geographic region. The pollutant
estimates for the model farms were
combined with published data from
USDA's 1997 Census of Agriculture and
then refined into national, regional,
State, and county level pollutant
loading estimates that were used to
determine in-stream surface water and
ground water concentrations. These
values were then used in the water
quality models and other environmental
benefits assessment models to estimate
the human health and environmental
benefits accruing from this rule. ',
EPA quantified the reduction of
nitrogen and phosphorus loads
associated with this rule. Reductions of
discharges of the metals zinc, copper,
cadmium, nickel, lead, and arsenic were
also analyzed for the final rule. Fecal
coliform and fecal streptococcus were
used as surrogates to estimate pathogen
reductions that would be achieved by
this rule. Other pathogens would likely
be reduced to a similar degree. Table,7.2
presents the pollutant reductions
expected to result from this rule.
TABLE 7.2.—POLLUTANT REDUCTIONS: COMBINED TOTAL FOR ALL ANIMAL SECTORS
Parameter
Large CAFOs:
Nutrients (million to)
Metals (million Ib)
Pathogens (101» cfu)
Sediment (million Ib)
Medium CAFOs:
Nutrients (million Ib)
Metals (million Ib)
= Pathogens (1018 cfu)
Sediment (million Ib)
Baseline pol-
lutant loading
(Pre-
regulation)
658
20
5784
35,493
65
20
1 456
3 119
Post-regulation
pollutant
loading
503
19
3 129
33434
54
1 9
779
3 015
Pollutant
reduction
155 (24%)
1 (5%)
2 655 (46%)
2 059 (6%)
11 (17%)
0 1 (5%)
677 (46%)
t04 (3%)
2. Approach for Determining the
Bonofits of This Rule
EPA has analyzed the water quality
improvements expected to result from
tho new requirements being
promulgated today and has estimated
tho environmental and human health
benefits of the pollutant reductions that
will result. The benefits described in
this section are primarily associated
with direct improvements in water
quality (both surface water and ground
water), but this new rule will also create
certain non-water quality environmental
effects, such as improved soil
conditions, changes in energy
consumption, and changes in emissions
of air pollutants.
For this rule, EPA conducted seven
benefit studies to estimate the impacts
of reductions in pollutant discharges
from CAFOs. The first study used a
national water quality model (National
Water Pollution Control Assessment
Model, or NWPCAM) that estimates
runoff from land application areas to
rivers,* streams, and, to a lesser extent,
lakes in the U.S. This study estimated
tho value society places on
improvements in surface water quality
associated with today's rule. The second
study examined the expected
improvements in shellfish harvesting
resulting from the new CAFO rule. A
third study looked at incidences of fish
kills that are attributed to AFOs and
estimated the cost of replacing the lost
fish stocks. The fourth study estimated
the benefits associated with reduced
ground water contamination. Reduced
public water treatment costs were
evaluated in the fifth study, and
reduced livestock mortality from nitrate
and pathogen contamination of
livestock drinking water was evaluated
in the sixth study. In the seventh study,
a case study of potential fishing benefits
for the Albemarle-Pamlico estuary is
presented to provide some insight to the
potential benefits for estuaries and
coastal waters. Each of the seven
studies, as well as benefits results, are
briefly described in the following
sections. Benefits results associated
with reduced pollutant discharges from
Large CAFOs are also summarized in
Table 7.1. The benefit value estimates
presented in this section reflect only
those pollutant reductions and water
quality improvements attributable to
Large CAFOs. EPA also developed
estimates of the pollutant reductions
that will occur due to the revised
requirements for Small and Medium
CAFOs, but analysis of the monetized
value of the associated water quality
improvements was not completed in
time for benefits estimates to be
presented here.
In this analysis, EPA estimates the
effect of pollutant reductions and other
environmental improvements on human
health and the ecosystem and assigns a
monetary value to these benefits to the
extent possible. In some cases, EPA was
able to identify certain types of
improvements that will result from this
rule, but was unable to either estimate
the monetary value of the improvement
or quantify the amount of improvement
that will occur. These non-monetized
and non-quantified benefits are
included in the discussion below; Given
the limitations in assigning monetary
values to some of the improvements, the
economic benefit values described
below and in the Benefits Analysis
should be considered a subset of the
total benefits of this rule. These
monetized benefits should be evaluated
along with descriptive qualitative
assessments of the non-monetized
benefits. For example, the economic
valuation used for this rule assigns
monetary values to the water quality
improvements due to reductions of the
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724O Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
most significant pollutants originating
from CAFOs (e.g., nitrogen, phosphorus,
pathogens, and sediment), but it does
not include values for potential water
quality improvements expected due to
reduced discharges of certain other .
pollutants discharged in lesser amounts,
such as metals or hormones.
Research documented in the record
and summarized in the Benefits
Analysis shows that CAFO wastes may
affect the environment and human
health in a variety of ways beyond those
for which benefits have been monetized.
The following are examples of other
types of potential impacts or potential
benefits:
• Human health and ecological effects
of metals, antibiotics, hormones, salts,
and other pollutants associated with
CAFO manure.
• Eutrophication of coastal and
estuarine •waters due to both nutrients in
runoff and deposition of ammonia
volatilized from CAFOs.
• Reduced human illness due to
pathogen exposure during recreational
activities in estuaries and coastal
waters.
• Improvements to soil properties due
to reduced overapplication of manure,
together with increased acreage '
receiving manure applications at •
agronomic rates.
• Reduced pathogen contamination in
private drinking water wells.
• Reduced cost of commercial •
fertilizers for non-CAFO operations.
EPA's Benefits Analysis does not
include monetary values for these other
areas of environmental improvements
because data limitations preclude1
quantifiable estimates of the magnitude
of improvement or it is difficult to
ascribe an economic value to these
benefits. Nevertheless, these
environmental benefits may result in
improved ecological conditions and
reduced risk to human health.
3. Benefits From Improved Surface
Water Quality
a. Freshwater recreational benefits.
EPA used NWPCAM to estimate the
national economic benefits to surface
water quality that will result as CAFOs
implement the requirements of this rule.
NWPCAM is a national-scale water
quality model that simulates the water
quality and benefits for various water
pollution control approaches. NWPCAM
is designed to characterize water quality
for the Nation's network of rivers and
streams, and, to a more limited extent,
its lakes. NWPCAM can translate
spatially varying water quality changes
(improvements or degradation) resulting
from different pollution control policies
into terms that reflect the value !
individuals place on water quality
improvements. In this way, NWPCAM is
able to derive the economic benefit of
the water quality improvements that
will result from reducing CAFO
discharges.
For this rule, EPA used NWPCAM to
simulate impacts due to reductions in
pollutant loadings from Large CAFOs
(nitrogen, phosphorus, pathogen
indicators, BODS, and TSS) on water
quality in the Nation's surface waters.
NWPCAM's national-scale framework
allows hydraulic transport, routing, and
connectivity of surface waters to be
simulated for the entire continental
United States with the exception of
coastal and estuarine waters. Pollutant
loadings from the CAFOs were used as
inputs to NWPCAM. The CAFO,
loadings were processed through the
NWPCAM water quality modeling
system to estimate in-stream pollutant
concentrations on a detailed spatial
scale to provide estimates of changes in
water quality that will result as CAFOs
implement this new rule. The
NWPCAM modeling output, simulating
the improved water quality in the
Nation's surface waters, was used as the
basis for monetizing improvements to
water quality, and as input to several of
the other benefits analyses described
later in this section. ;
The monetary value of the benefits
associated wi.th the changes in water
quality are estimated using two
valuation techniques. The first
technique relates water quality changes
to changes in the category of use the
water quality can support (e.g., boatable
uses versus fishable uses, or fishable
uses versus swimmable uses), also
referred to as the "water quality ladder"
approach, and also considers the size of
population benefitting from the changes
in the types of use the water quality can
support. The second method is similar
to the first, but it uses a composite
measure of water quality that is
calculated from six water quality
parameters (referred to as the "water
quality index" approach). A key
difference in the two approaches is that
the water quality ladder approach
assesses improvements using a step-
function that, attributes a monetary
value to the water quality improvement
only when changing from one use
category to another (e.g., a change from
boatable use to fishable use), while the
water quality index method assigns
values along a continuum of water
quality improvement (e.g., the water use
may remain designated as "boatable
use," but improvements within that use
category are assigned a monetary value).
For both valuation approaches, the
monetary value assigned to the benefits
is based on what the public is willing
to pay for improvements to water:
quality.
Based on the NWPCAM analysis
using.the water quality ladder approach,
the benefits of improved surface water
quality resulting from reduced pollutant
discharges from Large CAFOs are
estimated to be $166 million annually
(2001 dollars). Using the water quality
index approach, the benefits of
improved surface water quality are
estimated at $298 million annually
(2001 dollars).
b. Shellfish beds. Pathogen
contamination of coastal waters i§ a
leading cause of shellfish bed harvest
restrictions and closures. Sources of
pathogens include runoff from ;
agricultural land and activities. Using
The 1995 National Shellfish Register of
Classified Growing Waters published by
the National Oceanic and Atmospheric
Administration, EPA estimated the
improvements to shellfish bed
harvesting that will result as CAFO
discharges of pathogens are reduced by
this rule. These data were used to:
determine the average per-acre yield of
shellfish from harvested waters and to
estimate the area of shellfish-growing
waters that are currently unharvested as
a result of pollution from AFOs. By
combining the per-acre yield data with
estimates of the acreage of currently
unharvested shellfish beds that will
become available for harvesting as
discharges of pathogens from Large
CAFOs are reduced, EPA calculates the
value of improved shellfish harvests at
$0.3 to $3.4 million annually.
c. Fish kills. Episodic fish kill events
resulting from spills, manure runoff,
and other discharges of manure from
AFOs continue to remain a serious
' problem in the United States. The
impacts from these incidents range from
immediate and dramatic kill events to
less dramatic but more widespread
events. Manure dumped into and,:along
the West Branch of the Pecatonica River
in Wisconsin resulted in a complete kill
of smallmouth bass, catfish, forage fish,
and all but the hardiest insects in a 13-
mile stretch of the river. Less
immediate, but equally important,
catastrophic impacts on water quality
from manure runoff are increased algae
growth or algae blooms, which remove
oxygen from the water and can result in
the death of fish. Manure runoff into a
shallow lake in Arkansas resulted in a
heavy algae bloom that depleted the
lake of oxygen, killing many fish..
While the modeled estimates of
surface water quality improvements
have been used to monetize benefits
associated with freshwater bodies, water
quality modeling (i.e., NWPCAM) does
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7241
not include estuaries, coastal areas or
other marine water bodies, and fish kills
are noted to occur in these areas as well.
Parts of the Eastern Shore of the United
States have been plagued with problems
rotated to Pfiesteria, a dinoflagellate
algae that exist in rivers at all times, but
is known to cause fish kills in estuarine
and coastal environments under certain
conditions. Fish attacked by Pfiesteria
have lesions or large, gaping holes on
thorn as their skin tissue is broken
down; the lesions often result in death.
The conditions under which Pfiesteria
can harm fish are believed to be related
to high levels of nutrients. Fish kills
related to Pfiesteria in the Neuse River
in North Carolina have been blamed on
the booming hog industry and the
associated waste spills and runoff from
the hog farms. Preliminary evidence
suggests that human health problems
might also be associated with exposure
to Pfiesteria. As a result, people most
likely would limit or avoid recreational
activities in coastal waters with
P/fesler/a-related fish kills. The town of
Nexv Bern, a popular summer vacation
spot along the Neuse River in North
Carolina, experienced several major fish
kills in the summer of 1995. During this
event, people became ill after swimming
and fishing in the impacted areas, and
there were reports that people
swimming in the waters reported welts
and sores on their bodies. Summer
camps canceled boating classes,
children were urged to stay out of the
•water, and warnings were issued about
swimming and eating fish that were
diseased. Many blame the heavy
rainfall, which pumped pollutants from
overflowing sewage plants and hog
lagoons into the river, creating algae
blooms, low oxygen, and Pfiesteria
outbreaks as the cause of the fish kills.
EPA obtained reports on fish kill
events in the United States, with data
for nineteen States showing historical
and current fish kills. Using these data,
EPA estimates the benefits of reducing
fish kills through implementation of the
ELG requirements in today's rule for
Large CAFOs at SO.l million annually.
a. Reduced public water treatment
costs. Total suspended solids (TSS)
entering the surface waters from CAFOs
can hinder effective drinking water
treatment by interfering with
coagulation, filtration, and disinfection
processes. EPA used the NWPCAM
model to predict how pollutant
reductions from Large CAFOs would
affect the ambient concentration of TSS
in the source waters of public water
supply systems. To measure the value of
reductions in TSS concentrations, EPA
estimated the extent to which lower TSS
concentrations reduce the operation and
maintenance (O&M) costs associated
with the conventional treatment
technique of gravity filtration. EPA
estimates reduced drinking water
treatment costs of $1.1 to $1.7 million
annually due to reduced discharges of
pollutants at Large CAFOs.
4. Benefits From Improved Ground
Water Quality
a. Human health benefits. CAFO
wastes can contaminate ground water
and thereby cause health risks and
welfare losses to people relying on
ground water sources for their potable
supplies or other uses. Of particular
concern are nitrogen and other
constituents that leach through the soils
and the unsaturated zone and ultimately
reach ground waters. Nitrogen loadings
convert to elevated nitrate
concentrations at household and
community system wells, and elevated
nitrate levels in turn pose a risk to
human health in households with
private wells. (Nitrate levels in
community wells are regulated to
protect human health.]
This rule is expected to reduce nitrate
levels in private drinking wells by
reducing the rate at which manure is
spread on cropland, thus reducing the
rate at which pollutants will leach
through soils and reach ground water.
The federal health-based National
Primary Drinking Water Standard for
nitrate is 10 milligrams per liter (mg/L),
and this Maximum Contaminant Level
(MCL) applies to all community water -
supply systems. Households relying on
Erivate wells are not subject to the
sderal MCL for nitrate, but levels above
10 mg/L are considered unsafe for
sensitive subpopulations (e.g., infants).
Several economic studies indicate a
considerable willingness-to-pay by
households to reduce the likelihood of
nitrate levels exceeding 10 mg/L, and to
reduce nitrate levels even when baseline
concentrations are considerably below
the MCL.
EPA used U.S. Geological Survey data
on nitrate levels in wells throughout the
country to predict how nitrate
concentrations in private drinking wells
would be reduced by this rule. Based on
these data, EPA estimates that 9.2
percent of households that currently
rely on private wells with nitrate
concentrations exceeding the MCL will
have these concentrations reduced to
levels below the MCL because of the
ELG requirements for Large CAFOs.
EPA estimates the value of these
reductions based on willingness-to-pay
studies to be $583 annually per
household (2001$) resulting in benefit
estimates of $30.2 to $44.6 million
nationally on an annual basis for this
component of ground water
improvements. Another 5.8 million
households that currently have nitrate
levels in their private wells below the
MCL will experience further reductions
in nitrate levels because of the ELG
requirements for Large CAFOs. Studies
also show that people are willing|to pay
$2.09 per mg/L reduced annually
(2001$) to get these additional
reductions once 'they are already below
the MCL for nitrate. This gives benefits
estimates of $0.7 million to $1.1 million
annually for the nation for this
component of ground water
improvements. The total benefits of
reduced nitrate contamination of private
drinking wells as a result of reducing
pollutant discharges at Large CAFOs are
estimated to range from approximately
$30.9 to $45.7 million annually (2001$).
Research documented in the record
and summarized in the Benefits
Analysis shows that CAFO wastes affect
the environment and human health in
ways beyond those for which benefits
have been monetized. Additional
ground water benefits that may result
from this rule include reduced pathogen
contamination of private drinking water
wells and community drinking water
supplies. EPA's Benefits Analysis, does
not include monetary values for these
additional ground water improvements
because data limitations preclude
quantifiable estimates of the magnitude
of improvement or because it is difficult
to ascribe an economic value to these
benefits. EPA also recognizes that CAFO
operators have strong private incentives
to avoid contaminating their own
private drinking water sources.
b. Animal health benefits. Land
application of manure can result in
leaching of nitrates and enteric
pathogens to ground water, which in
many cases is used as the source of
drinking water for livestock in rural
communities. Excessive nitrate in
livestock watering sources, particularly
in conjunction with feeds containing
nitrogen such as alfalfa, can contribute
to increased morbidity and mortality
due to acute and chronic nitrate
poisoning in cattle which would have
the ability to convert nitrate to toxic
nitrite. In addition, studies have found
that nearly 20% of rural water wells are
contaminated with enteric pathogens
such as fecal coliform and fecal
streptococcus, common indicators of
enteric pathogens, at ratios which
suggest the source of contamination may
be animal waste. Consumption of water
by livestock contaminated with enteric
pathogens could result in increased
morbidity and mortality due to
waterborne illness, particularly
gastrointestinal disorders.
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7242 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003,/ Rules and Regulations
EPA used data from scientific
literature, USDA data on beef and dairy
mortality from poisoning and
gastrointestinal illness, EPA data on
rural groundwater quality, and
published recommendations for
livestock drinking water quality, to
estimate the potential to reduce on-farm
beef and dairy cattle mortality
associated with pathogens and nitrates
in ground water. From this, EPA ;
estimated the avoided cost of replacing
'cattle mortalities. The ELG requirements
are expected to reduce nitrate and
pathogen contamination of ground
water at Large CAFOs and, as a,result,
reduce annual cattle mortality from'
nitrate poisoning and pathogens at Large
CAFOs by approximately 4,300 mature
cattle and 3,900 calves. Using a
replacement value of $1,185 for mature
cattle and $54 for day-old calves (2002
dollars), the monetary benefit of
reduced on-farm beef and dairy cattle
mortality at Large CAFOs is estimated at
$5.3 million annually. ;
D. Other (Non-Water Quality)
Environmental Impacts and Benefit^
In analyzing the effects of this rule,
EPA also considered how the
requirements promulgated today would
affect the amount and form of ;
compounds released to air, as well as
the energy that is required to operatp the
CAFO. In addition to the water quality
impacts and benefits discussed above,
EPA's analyses for this rule have also
evaluated these other types of
environmental impacts, often referred to
as non-water quality environmental
impacts. These non-water quality
environmental impacts include changes
in air emissions from CAFO production
areas and land where CAFO-generated
manure is spread, changes in energy
use, and improvements in soil
properties. EPA's estimates of changes
in air emissions and energy use are
described in more detail in the
Technical Development Document.
To assess the potential changes in air
emissions resulting from this rule, EPA
quantified the releases from the :
production area, including animal
housing and animal waste storage and
treatment areas; land application
activities; and emissions from vehicles,
including the off-site transport of waste
and on-site composting operations.'
EPA projects increased emissions of
criteria air pollutants (particulate
matter, volatile organic compounds,
nitrogen oxides, and carbon monoxide)
related to increased fuel consumption as
excess manure is transported away from
the CAFO. The contribution of these
projected increases is limited compared
to the national criteria pollutant
inventory. For example, for the year
2000, the total national inventory for
nitrogen oxides was 25 million tons.
The contribution of the projected
increase in CAFO emissions of nitrogen
oxides is less than 0.01 percent of that
amount. The national inventory values
for other criteria pollutants are also
much larger than the projected changes
in emissions from CAFOs.
CAFOs are a source of ammonia,
which is a contributor to the formation
of fine particulate matter. This rule is
not expected to significantly alter
ammonia emissions from CAFOs.
During the rulemaking, EPA evaluated a
number of regulatory options and, as
part of those analyses, considered the
potential air quality benefits associated
with changes in ammonia emissions.
For further discussion of those analyses,
refer to Chapter 13 of the Technical
Development Document and Section 22
of the rulemaking record.
CAFOs are also a source of hydrogen
sulfide emissions. EPA's calculations
indicate that today's rule will reduce
hydrogen sulfide emissions from Large
CAFOs by 12 percent nationally.
Reductions in hydrogen sulfide
emissions are expected to lead to human
health benefits, but EPA has not been
able to calculate the economic value of
these reductions.
Finally, CAFOs are a source of
greenhouse gases. Emissions of nitrous
oxide at CAFOs arise mainly from the
feedlot area during denitrification of
nitrogen compounds during waste
storage on the drylot and from fields
where animal wastes are land applied.
Emissions of methane also mainly arise
during waste storage, created during the
anaerobic decomposition of carbon
compounds. CAFOs currently
contribute approximately 3 percent of
all U.S. nitrous oxide emissions and a
similar percentage of U.S. methane
emissions. EPA estimates that emissions
of nitrous oxide at Large CAFOs will
increase by 4 percent as the
requirements of today's rule are
implemented, and emissions of methane
will decrease by 11 percent.
EPA also expects that the properties
of the soil at a number of land
application areas might improve
because of reduced overapplication of
manure. The soil properties of cropland
that does not currently receive manure,
but becomes a recipient as additional
manure is hauled away from CAFOs
that have excess manure are also
expected to benefit from the organic
matter content, (improving tilth) and the
micronutrients present in manure.
VIII. Costs and Economic Impacts
This section presents EPA's estimate
of the total annual costs and the
economic impacts that would be
incurred by the livestock and poultry
industry as a result of today's rule. This
section also discusses EPA's estimated
effects on small businesses and presents
the results of the Agency's cost- I
effectiveness and cost-benefit analysis.
All costs presented in this section are
reported in pre-tax 2001 dollars (unless
otherwise indicated).
EPA estimates the total monetized
social costs of the final regulations at
about $335 million annually. These
costs include compliance costs borne by
CAFOs and also administrative costs to
federal and State governments. EPA
estimates the total compliance cost for
Large CAFOs at $283 million per year
(pre-tax, $2001). Costs to Medium
CAFOs are estimated at $39 million per
year. Costs to Medium and Small
operations that are designated as CAFOs
are estimated at $4 million per year.
EPA estimates that the administrative
cost to federal and State governments to
implement this rule is $9 million ;per
year.
For the veal, dairy, turkey, and egg
laying sectors, the final regulations are
not expected to result in any CAFO
level business closures. In the beef
cattle,- heifer, hog, and broiler sectors,
however, the final rule is expected to
cause some existing CAFOs to
experience financial stress. These
operations might be vulnerable to
closure as a result of complying with the
final regulations. Across all sectors, an
estimated 285 existing Large CAFOs
might be vulnerable to facility closure.
This accounts for approximately 3
percent of all Large CAFOs. By seccor,
EPA estimates that 49 beef operations (3
percent of affected beef CAFOs), 22
heifer operations (9 percent), 204 Log
operations (5 percent of affected hog
CAFOs), and 10 broiler operations (1
percent) might close as a result of
complying with the final regulations.
These results are based on an analysis
that does not consider the longer-term
effects on market adjustment and also
available cost share assistance froin
federal and State governments.
Detailed information on estimated
compliance costs are provided in the
Technical Development Document and
the Cost Support Document, which are
in the administrative record for today's
rule. EPA's detailed economic
assessment can be found in Economic
Analysis which is also in the
administrative record.
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules'and Regulations 7243!
A. Costs of the Final Rule
1. Method for Estimating the Costs of
This Rulo
For the purpose of estimating the total
costs and economic impacts CAFOs will
boar in complying with this rule, EPA
estimated costs associated with four
broad cost components: nutrient
management planning, facility
upgrades, land application, and
technologies for balancing on-fann
nutrients. Nutrient management
planning costs include manure and soil
testing, record-keeping, and plan
development. Facility upgrades reflect
costs for additional or improved manure
storage, mortality handling, runoff
controls, reduction of fresh water use
where appropriate, and additional farm
management practices. Land application
costs address agricultural application of
nutrients, including hauling of excess
manure off-site and adjusting for
changes in commercial fertilizer needs,
and reflect differences among operations
based on cropland availability for
manure application.
EPA evaluated compliance costs using
a representative facility approach based
on approximately 1,600 farm level cost
models to depict conditions and to
evaluate compliance costs for select
representative CAFOs. The major factors
used to differentiate individual model
CAFOs include the commodity sector,
the farm production region, and the
facility size (based on herd or flock size
or the number of animals on-site). EPA's
model CAFOs primarily reflect the
major animal sector groups, including
beef cattle, dairy, hog, broiler, turkey,
and egg laying operations. Practices at
other subsector operations are also
reflected in the cost models, such as
replacement heifer operations, veal
operations, flushed-cage layers, and hog
grow-finish and farrow-finish facilities.
Another key distinguishing factor
incorporated into EPA's cost models is
Information on the availability of
cropland and pastureland for land
application of manure nutrients. For
this analysis, nitrogen and phosphorus
rates of land application were evaluated
for three categories of cropland
availability: (1) CAFOs with sufficient
cropland for all manure generated on-
site; (2) CAFOs with some, but not
enough, cropland to accommodate all of
the manure produced at the facility; and
(3) CAFOs with no cropland. EPA used
IJSDA data to determine the number of
CAFOs within each of these categories.
This information takes into account
which nutrient (nitrogen or phosphorus)
is used as the basis to assess land
application and nutrient management
costs.
The data and information used to
develop EPA's cost estimates were
compiled with the assistance of USDA,
in combination with other information
collected by EPA from extensive
literature searches, more than 100 farm
site visits, and numerous consultations
with industry, universities, and
agricultural extension agencies.
Additional detailed information on the
data and assumptions used to develop
EPA's cost estimates is provided in the
Technical Development Document.
Refer to the preamble for the proposed
rule for a summary of EPA's data
collection activities and the sources of
data that the Agency used to estimate
compliance costs (66 FR 3079-3080].
For the purpose of estimating costs
and financial effects to Medium CAFOs,
EPA assumes that costs that will be
incurred by those sized operations to
comply with BPJ-based limitations
under the revised NPDES regulations
are similar to the estimated costs that
would be incurred if Medium CAFOs
had to comply with the ELG.
2. Estimated Annual Costs of the Final
CAFO Regulations
a. Costs borne by CAFOs. Table 8.1
summarizes the total annualized
compliance costs to CAFOs. The table
shows these costs broken out by sector
and broad facility size category. As
shown in the table, EPA estimates the
total cost of the final rule to CAFCs at
$326 million annually. (Total monetized
estimated social costs of the rule
include an additional $9 million to
federal and State governments.) Roughly
one-half of this cost is incurred by the
dairy sector, with another roughly 30
percent incurred within the cattlej
sectors (including the beef, veal, and
heifer sectors).
Of this total, EPA estimates that Large
CAFOs will incur costs of $283 million
per year. Total annualized costs to
facilities defined as Medium CAFOs are
estimated at $39 million annually. Table
8.1 also shows estimated total cost to
Small and Medium AFOs that might
incur costs if designated as CAFOs,
which EPA estimates at about $4
million annually. More information on
these costs and how they were
calculated is provided in the Economic
Analysis.
EPA has estimated the cost of land
application based on nitrogen-based
application rates, except in those;
instances where EPA believes that
phosphorus-based rates are likely to be
appropriate. The final rule specifies that
the determination of application rates is
to be based on the technical standards
established by the Director and EPA
expects that these standards will require
phosphorus-based application, where
appropriate. The rule also provides for
these standards to include appropriate
flexibilities in the use of phosphorus-
based rates, such as multi-year
phosphorus application, but the
potential costs savings resulting from
these flexibilities are not reflected in the
analysis. As a result, the cost and:
economic impacts of this rule may have
been overestimated.
TABLE 8.1.—ANNUAL PRE-TAX COST OF THE RULE, $2001
Sector
Fed Cattle
Veal
Heifer
Daley
Hogs
Broilers
Layers: Dty 1
Layers: Wet1
Turkeys
No. operations
Large CAFOs
Medium
CAFOs
(number)
1,766
12
242
1,450
3,924
1,632
729
383
388
174
230
7
1,949
1,485
520
26
24
37
Aggregate incremental costs
Total
Large CAFOs
Medium
CAFOs
Designated
CAFOs
($2001, millions, pre-tax)
$88.2
0.0
6.3
151.1
34.8
20.5
7.5
8.9
8.7
$85.8
<0.1
3.8
128.2
24.9
16.8
7.2
8.4
8.1
$1.9
<0.1
2.4
22.0
9.5
2.4
0.1
0.5
0.3
$0.5
0.0
0.1
0.9
0.4
1.3
0.2
<0.1
- 0.3
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7244 Federal Register /Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
TABLE 8.1 .—ANNUAL PRE-TAX COST OF THE RULE, $2001—Continued
Sector
Total
No. operations
Large CAFOs
10.526
Medium
CAFOs
4.452
Aggregate incremental costs
Total
326.0
Large CAFOs
283.2
Medium
CAFOs
39.1
Designated
CAFOs
3.8
Source: USEPA. May not add due to rounding. Number of operations do not include designated facilities. Assumes that the estimated costs for
Medium CAFOs to comply with BPJ-based limitations under the revised NPDES regulations are similar to the costs that would be incurred by
those sized operations if they had to comply with the ELG.
1 "Layers: dry" are operations with dry manure systems. "Layers: wet" are operations with liquid manure systems.
b. Costs to the NPDES permitting
authority. The NPDES permitting
authority will incur additional costs to
alter existing State programs and obtain
EPA approval to develop new permits,
review new permit applications, and
issue revised permits that meet the final
regulatory requirements. EPA expects
that NPDES permitting authorities will
incur administrative costs related to the
development, issuance, and tracking of
general or individual permits.
State and federal administrative costs
to issue a general permit include costs
for permit development, public notice
and response to comments, and public
hearings. States and EPA may also incur
costs each time a facility operator
applies for coverage under a general
permit due to the expenses associated
with a NOI. These per-facility
administrative costs include initial
facility inspections and annual record-
keeping expenses associated with
tracking NOIs. Administrative costs for
an individual permit include
application review by a permit writer,
public notice, and response to
comments. An initial facility inspection
might also be necessary.
EPA assumes that under the final
regulations an estimated 15,500 CAFOs
would be permitted. This estimate
consists of about 15,000 CAFOs covered
by State permits and about 500 CAFOs
covered by federal permits. ,
Administrative costs, incurred by State
permitting authorities are expected to be
$8.7 million. EPA permitting authorities
will incur the remaining $0.3 million.
EPA has expressed these costs in 2001
dollars, annualized over the 5-year
permit term using a 7 percent discount
rate. A summary of this analysis is
available in section X.D of this
preamble. More detailed information is
in the Technical Development
Document.
B. Economic Effects
1. Effects on the CAFO Operation
To estimate the impacts of the final
regulations, EPA examined the
economic effects on regulated CAFOs
and national markets. This section
presents EPA's analysis of financial
impacts on both existing and new
CAFOs that will be affected by the final
regulations. Results presented here
focus on economic effects from the
CAFO regulations affecting Large
CAFOs because only large facilities will
be subject to the effluent guidelines and
NSPS. This section also presents EPA's
analysis of the economic effects on
existing operations that are small
businesses. More detailed information
on those effects are presented in the
Economic Analysis.
The preamble to the proposed rule
summarizes EPA's data collection
activities and the sources of data that
the Agency used to estimate economic
effects for the final regulations (66 FR
3079-3080). Both the 2001 Notice (66
FR 58556) and the 2002 Notice (67 FR
48099) describe the public comments
received by EPA on the baseline
financial data and the methodological
approach developed by the Agency to
evaluate financial effects. More detailed
information on these comments and
how EPA addressed them is in section
2 of the final Economic Analysis. EPA's
detailed responses to these public
comments, and the comments
themselves, are contained in the
Comment Response Document in the
administrative record for today's rule.
Both Notices also present new data
received following proposal that EPA
used in conducting its final analysis.
a. Methodology used to assess impacts
to the CAFO operation. EPA assessed
financial effects on regulated CAFOs
based on predicted changes to select
financial criteria. The economic model
that EPA used to evaluate financial
impacts on CAFOs uses a representative
farm approach. Under this general
framework, EPA constructed a series of
model facilities ("model CAFOs") that
reflect EPA's estimated compliance
costs and readily available financial
data. EPA used these model CAFOs to
develop an average characterization for
a group of operations based on certain
distinguishing characteristics for each
sector, such as facility size and
production region, that can be shared
across a broad range of facilities.
EPA evaluated the economic
achievability of the rule at existing
operations based on changes in
representative financial conditions
across three financial criteria: (1) An
initial screening comparing increjnental
post-tax costs to total gross revenue
("sales test"), (2) projected post-
compliance cash flow over a 10-year
period ("discounted cash flow ;
analysis"), and (3) an assessment of an
operation's debt-to-asset ratio under a
post-compliance scenario ("debt-asset
test"). EPA notes that its discounted
cash flow analysis likely understates
impacts because it does not include any
allowance for depreciation or
replacement of capital in its definition
of cash flow. However, EPA has .
conducted a sensitivity analysis that
shows that the number of estimated
CAFO closures would not be different if
allowances for replacement of capital
are made (see section 3.3 of the
Economic Analysis).
EPA used the results from these
analyses to divide affected CAFOs into
three financial impact categories:
Affordable, Moderate, and Stress:
CAFOs experiencing affordable or
moderate impacts are considered 'to
have some financial impact on
operations, but EPA does not expect the
costs of complying with this rule to
make these operations vulnerable to
closure. EPA considers that for CAFOs
in both the "Affordable" and
"Moderate" impact categories the final
requirements are likely to be
economically achievable. Operations
experiencing financial stress, however,
are considered to be vulnerable tp
closure because of the costs of this rule.
EPA considers that for CAFOs in the
"Stress" impact category, the final
requirements are likely not
economically achievable. EPA notes, as
discussed below, that there may be
mitigating factors that could reduce the
number of facilities experiencing.
financial stress, such as the availability
of cost-share assistance and long-run
market adjustment.
EPA conducted its analysis first at the
farm level based on data reflecting
financial conditions for the entire, farm
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7245
operation (e.g., reflecting income and
cost information spanning the entire
operation, thus considering the
operation's primary livestock
production, along with other income
sources such as secondary livestock and
crop production, government payments,
and other farm-related income). Based
on the farm level results, EPA also .
assessed the financial effects on CAFOs
at the enterprise level (e.g., limiting the
scope of the assessment to the
operation's livestock or poultry
enterprise, and excluding other non
CAFO-relatcd sources of income from
the analysis). By evaluating the financial
criteria at both the farm level and the
enterprise level, EPA's analyses address
comments expressed by many
commenters, including FAPRI, other
land grant university researchers, and
industry, as well as USDA.
Starting with the farm level analysis,
EPA considers the regulations to be
economically achievable for a
representative model CAFO if the
average operation has a post-compliance
sales test estimate within an acceptable
range, a positive post-compliance cash
flow over a 10-year period, and a post-
compliance debt-to-asset ratio not
exceeding a benchmark value.
Specifically, if the sales test shows that
compliance costs are less than 3 percent
of sales, or if post-compliance cash flow
is positive and the post-compliance
deot-to-asset ratio does not exceed a
benchmark (depending on the baseline
data) and compliance costs are less than
5 percent of sales, EPA considers the
options to be "Affordable" for the
representative CAFO group. (Although a
sales test result of less than 3 percent
does indicate "Affordable" hi the farm
level analysis, further analysis is
conducted to determine the effects at
the operation's livestock or poultry
enterprise.) The benchmark values
assumed for the debt-asset test are
sector-specific. EPA assumes a 70
percent benchmark value for the debt-
asset test to indicate financial stress in
the hog and dairy sectors, and an 80
percent benchmark for the debt-asset
lost to indicate financial stress in the
beef cattle sector. These benchmark
values address public comment received
and alternative debt and asset data
submitted for the livestock sectors. For
the poultry sectors, however, EPA did
not obtain alternative debt and asset
data and continues to evaluate data used
for proposal against a 40 percent
benchmark value. See the Economic
Analysis and EPA response to comment
on this issue for more information.
A sales test of greater than 5 percent
but less than 10 percent of sales with
positive cash flow and a debt-to-asset
ratio of less than these sector-specific
debt-asset benchmark values is
considered indicative of some impact at
the CAFO level, but at a level not as
severe as those indicative of financial
distress or vulnerability to closure.
These impacts are labeled "Moderate"
for the representative CAFO group. EPA
considers both the "Affordable" and
"Moderate" impact categories to be
economically achievable by the CAFO,
subject to the enterprise analysis (see
below). If, with a sales test of greater
than 3 percent, post-compliance cash
flow is negative or the post-compliance
debt-to-asset ratio exceeds these sector-
specific debt-asset benchmarks, or if the
sales test shows costs equal to or
exceeding 10 percent of sales, EPA
considers the final regulations to be
associated with potential financial stress
for the entire representative CAFO
group. In such cases, each of the
operations represented by that group
might be vulnerable to closure. For
operations that are determined to
experience financial "Stress" at the farm
level, the final requirements are likely
not economically achievable.
The enterprise level analysis builds
on the farm level analysis, evaluating
effects at a farm's livestock or poultry
enterprise. If the farm level analysis
shows that the regulations impose
"Affordable" or "Moderate" effects on
the operation, the enterprise level
analysis is conducted to determine
whether the enterprise's cash flow is
able to cover the cost of regulations.
This analysis uses a discounted cash
flow approach similar to that used to
assess the farm level effects, in which
the net present value of cash flow is
compared to the net present value of the
total cost of the regulatory options over
the 10-year time frame of the analysis.
Over the analysis period, if an
operation's livestock or poultry
enterprise maintains a cash flow stream
that both exceeds the cash costs of the
rule (operating and maintenance costs
plus interest) and covers the net present
value of the principal payments on the
capital, EPA concludes that the
enterprise will likely not close because
of the CAFO rule. This analysis is
conducted on a pass/fail basis. If the net
present value of cash flow minus the net
present value of the rule's costs is
greater than zero, the enterprise passes
the test and the enterprise is assumed to
continue to operate. EPA considers
these results to indicate that the final
requirements are economically
achievable. If the net present value of
cash flow is not sufficient to cover the
net present value of the cost of the rule,
EPA assumes that the CAFO operator
would consider shutting down the
livestock or poultry enterprise. That is,
if an operation fails the enterprise level
analysis, these operations are
determined to experience financial
"Stress" and the final requirements are'
likely not economically achievable.
In response to comments, EPA
conducted additional supplemental
analysis to determine the effects of the
regulation under two different
scenarios. One scenario takes into
consideration the effects of long-run
market adjustment following
implementation of the final regulations.
This analysis is conducted using
simulated changes in producer revenue
given changes in market prices as
depicted by EPA's market model, -.vhich
uses estimates of price and quantity
response in these markets. A seco'nd
scenario takes into consideration
potential cost share assistance under
federal and State conservation
programs, assuming that a portion of
costs are covered by cost sharing subject
to programmatic constraints. Given the
uncertainty of whether CAFO income
will rise in response to long-run market
adjustment or whether available cost
share dollars will effectively offset
compliance costs at regulated CAFOs,
EPA's analysis to determine whether the
regulation is "economically achievable"
does not rely on such assumptions as
part of its regulatory analysis and
therefore reflects the highest level of
impacts projected. However, EPA
presents the results of this analysis
assuming both some degree of cost
passthrough and no cost passthrough, as
well as some degree of cost share
assistance and no cost share assistance,
along with the results of its lead
analysis. Additional detailed
information on this decision framework
is provided in section 2 of the Economic
Analysis.
b. Economic effects on existing CAFOs
affected by the Effluent Guidelines.
Table 8.2 presents the results of EPA's
analysis of the estimated CAFO
financial effects in terms of the number
of operations that will experience
affordable, moderate, or stress impact
because of this rule. Results are shown
by sector for Large CAFOs.
EPA's analysis indicates that, for all
Large CAFOs in the veal, dairy, turkey,
and egg laying sectors, the impacts due
to this rule are characterized as
"Affordable" or "Moderate" and no
facility closures are projected for these
facilities. Therefore, EPA determined
the rule being promulgated todayls
economically achievable for existing
facilities in these animal sectors. In the
beef cattle, heifer, hog and broiler
sectors, however, EPA's analysis
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7246 Federal Register /Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
indicates that the final rule will cause
some existing CAFOs to experience
financial stress, making these operations
vulnerable to facility closure. Across all
sectors, an estimated 285 existing Large
CAFOs might be vulnerable to facility
closure. This accounts for
approximately 3 percent of all Large
CAFOs. By sector, EPA estimates that 49
beef operations (3 percent of affected
beef CAFOs), 22 heifer operations (9
percent), 204 hog operations (5 percent
of affected hog CAFOs), and 10 broiler
operations (1 percent) might close as a
result of complying with the final
regulations. These estimates of the
number of potential CAFO closures are
cumulative and reflect the results of
both the farm level analysis and the
enterprise level analysis. These
estimated closure rates are generally
consistent with the findings of
economic achievability of previous
effluent guidelines for other industrial
point source categories. Based on the
results of this analysis, EPA concludes
that the final rule is economically
achievable for existing CAFOs. More
detailed information is provided in the
Economic Analysis.
The results described above do not
reflect long-run market adjustment and
cost share assistance through federal
and State conservation programs due to
uncertainties associated with these
considerations, for reasons discussed in
the Economic Analysis. Although EPA
concluded, based on the results in Table
8.2, that the final regulation is
economically achievable, the Economic
Analysis presents the results of
alternative analyses under varying
assumptions of long-run market
adjustment and potential cost share
assistance. Under assumptions of long
run market adjustment, as reflected in
eventual increases in CAFO revenue
and producer prices, the number of
potential facility closures is reduced
from 285 closures to a single facility
closure in the beef sector. All operations
in the heifer, hog, and broiler sectors are
expected to be able to absorb the
estimated compliance costs under an
assumption that incorporates long run
market adjustment. Under assumptions
of partial cost share assistance, assumed
for this analysis to cover 50 percent of
the capital expenditure to comply with
the revised regulations, the number of
potential closures is reduced only •
somewhat from 285 closures to 261
closures (comprised of 43 beef, 11
heifer, 204 hog, and 3 broiler
operations). EPA conducted these
analyses only for the beef, heifer, bog
and broiler sectors since all Large
CAFOs in the other sectors are
estimated to be able to absorb costs
associated with the final rule.
TABLE 8.2.—FINANCIAL EFFECTS ON LARGE CAFOs: FINAL REGULATIONS
Sector
Fed Cattle
Veal
Heifer
Dairy
Hogs
Broilers
Layers: Dry1
Layers: Wet1
Turkeys
Total
Number
large
CAFOs
1,766
12
242
1,450
3,924
1,632
729
383
388
10,526
• ; Number
Affordable
1,717
12
220
1,019
3,249
1,032
729
383
388
8,749
Moderate
. 0
0
431
470
590
0
0
0
1,491
Stress
49
0
22
0
204
10
0
0
0
285
Percent of total operations
Affordable
97
100
91
70
83
63
100
100
100
83
Moderate
0
0
0
30
12
36
0
0
0
14
Stress
3
0
9
0
5
1
0
0
0
3
Source: USEPA. See Economic Analysis. May not add due to rounding.
1 "Layers: dry" are operations with dry manure systems. "Layers: wet" are operations with liquid manure systems.
c. Economic effects to existing CAFOs
that are small businesses. (1) Number of
affected small businesses. This section
presents EPA's analysis of the economic
effects on CAFOs that are small
businesses. It summarizes the estimated
number of small entities to which the
rule will apply and describes the
potential effects of the final rule on
these businesses.
The SBA defines a "small business"
in the livestock and poultry sectors in
terms of average annual receipts (or
gross revenue). SBA size standards for
these industries define a "small
business" as one with average annual
revenues over a 3-year period of less
than $0.75 million for dairy, hog,
broiler, and turkey operations; $1.5
million for beef feedlots; and $9.0
million for egg operations. EPA defines
a "small" egg laying operation for
purposes of its regulatory flexibility
assessments as an operation that
generates less than $1.5 million in
annual revenue. EPA consulted with
SBA on the use of this alternative
definition. A summary of EPA's
rationale and supporting analyses
pertaining to this alternative definition
is provided in the administrative record
and in Section 4 of the Economic
Analysis.
Given these considerations, EPA
defines a "small business" for this rule
as an operation that houses or confines
less than 1,400 fed beef cattle (includes
fed beef, veal, and heifers); 300 mature
dairy cattle; 2,100 market hogs; 37,500
turkeys; 61,000 layers; or 375,000
broilers. The approach used to'derive
these estimates is described in the
Economic Analysis and the
administrative record.
EPA estimates that of the
approximately 238,000 animal
confinement facilities in 1997, roughly
95 percent are small businesses. Not all
of these operations will be affected by
the final rule. Table 8.3 shows EPA's
estimates of the number of "small
business CAFOs that are expected to be
affected by this rule. For this analysis,
EPA estimates that about 6,200 affected
CAFOs across all size categories are
small businesses, accounting for more
than 40 percent of the estimated 14,515
affected facilities. EPA estimates that
among Large,CAFOs about 2,330
operations are small businesses
(accounting for about one-fourth of all
Large CAFOs). Most affected small
businesses are in the broiler sector.
Among Medium CAFOs, EPA estimates
about 3,870 operations are small
businesses (accounting for the majority
of operations in this size category), and
most of the affected small businesses are
in the hog, dairy, and broiler sectors.
For reasons noted in the
administrative record, EPA believes that
the number of small broiler operations
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Federal Register/Vol.. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7247
Is overestimated and might actually
include a number of medium and large
broilor operations that should not be
considered small businesses.
(2) Estimated financial effects on
small businesses. For the 2001 proposal,
EPA conducted a preliminary
assessment of the potential impacts on
small business CAFOs based on the
results of a costs-to-sales test (66 FR
3101). This screen test indicated the
need for additional analysis to
characterize the nature and extent of
impacts on small entities. Based on the
results of this initial assessment, EPA
projected that it would likely not certify
that the proposal, if promulgated, would
not impose a significant economic
impact on a substantial number of
entities. Therefore, EPA convened a
SBAR Panel and prepared an Initial
Regulatory Flexibility Analysis (IRFA)
pursuant to sections 609(b) and 603 of
the RFA, respectively. The 2001
proposal provides more information on
EPA's small business outreach and the
Panel activities during the development
of this rulemaking [66 FR 3121). Section
XI of this preamble presents EPA's Final
Regulatory Flexibility Analysis (FRFA),
as required under section 604 of the
RFA. More detailed information on this
analysis is provided in section 4 of the
Economic Analysis.
In examining the effects on small
businesses for the final rule, EPA
followed the same approach used to
evaluate the impacts on other existing
CAFOs, described in section VuI.B.l(a).
For the purposes of this analysis,-EPA
assumes that the costs that will be
incurred by those sized operations to
comply with BPJ-based limitations
under the revised NPDES regulations
are similar to the estimated costs that
would be incurred if Medium CAFOs
had to comply with the ELG.
For past regulations, EPA has often
analyzed the potential impacts to small
businesses by evaluating the results of a
costs-to-sales test, measuring the
number of operations that will incur
compliance costs at varying threshold
levels (including ratios where costs are
less than 1 percent, between 1 and 3
percent, and greater than 3 percent of
gross income). EPA conducted such an
analysis at the time of the 2001
proposal, indicating that about 80
percent of the estimated number of
small businesses directly subject to the
rule as CAFOs might incur costs in
excess of three percent of sales.
EPA believes that its more refined
analysis used for its general analysis
(presented here) better reflects the
potential impacts to regulated small
businesses. Using this approach, EPA's
analysis indicates that the final rule
could cause financial stress to some
small businesses, making these
businesses vulnerable to closure. '•
Among the estimated 6,200 small
businesses, EPA estimates that 262
Large and Medium CAFOs might be
vulnerable to facility closure (Table 8.3).
Thus, EPA estimates that potential
facility closures associated with this
rule constitutes about 4 percent of all
affected small business CAFOs. Medium
CAFOs comprise the majority (about 85
percent) of these estimated number of
closures. These results do not consider
long-run market adjustment or cost
share assistance through federal and
State conservation programs. More
detailed information is provided in the
Economic Analysis.
TABLE 8.3.—FINANCIAL EFFECTS ON SMALL BUSINESS CAFOs
Sector
CAFOs >1,000 All:
Fed Cattle
Veal
Halfer
Dairy
Hogs
Broilers
Layers: Dry1
Layers: Wet1
Turkeys
Total ,
Operations 300-1.000 AU (Defined as
CAFOs):
Fed Cattle ,
Veal ,
Heifer
Dairy
Hogs ,
Broilers
Layers: Dry1
Layers: Wet1
Turkeys
Total
Number of
small
businesses
538
5
97
0
0
1,303
0
383
0
2,326
174
7
230
1,330
1,485
520
24
24
31
3,825
Number
Affordable
522
5
88
763
383
1,795
7
7
189
1,306
1,483
263
24
24
31
3,334
Moderate
0
0
0
532
0
532
0
0
0
24
2
248
0
0
0
274
Stress
16
0
9
9
0
34
167
0
41
0
0
10
0
0
0
228
Percent of total operations1
Affordable
97
100
91
58
100
76
4
100
82
98
100
51
100
100
100
87
Moderate
0
0
0
41
0
23
0
0
0
2
0
48
0
0
0
7
Stress
3
0
9
1
0
1
96
0
18
0
0
1
0
0
0
6
Hi Iif£nD-i1?e Ec™0.™1,? Analysts- May not add due to rounding. Assumes that the costs that will be incurred by those sized operations
OACO • ly iri BPJ-?as?d_ limitations under the revised NPDES regulations are similar to the estimated costs that would be incurred if Medium
CArOs had to comply with the ELG.
layers: dry" are operations with dry manure systems. "Layers: wet" are operations with liquid manure systems.
d. Economic effects to new CAFOs.
EPA evaluated impacts on new source
CAFOs by comparing the costs borne by
new source CAFOs to those estimated
for existing sources. That is, if the
expected cost to new sources is similar
to or less than the expected cost borne
by existing sources (and that cost was
considered economically achievable for
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7248 Federal Register/Vol. 68, No. 29 / Wednesday, February 12, 2003/Rules and Regulations
existing sources), EPA considers that the
regulations for new sources do not
impose requirements that might grant
existing operators a cost advantage over
new CAFO operators and further
determines that the NSPS requirements
are affordable and do not present a
barrier to entry for new facilities. In
general, costs to new sources from NSPS
requirements are lower than the costs
for retrofitting the same technologies at
existing sources since new sources are
able to apply control technologies more
efficiently than existing sources that"
might incur high retrofit cost. New
sources will be able to avoid the retrofit
costs that will be incurred by exis.ting
sources. Furthermore, new sources
might be able to avoid the other various
control costs facing some existing
producers through careful site selection.
The requirements promulgated in
today's rule do not give existing
operators a cost advantage over new
CAFO operators; therefore, the NSPS do
not present a barrier to entry for new
facilities. Examples of avoided retrofit
costs and costs of total containment
systems and waste management,
including land application, for both
existing and new sources are provided
in Section IV.C of this preamble. More
detailed information is provided in the
Cost Report and the Economic Analysis
supporting the final regulations.
2. Market Analysis
EPA's market analysis evaluates the
effects of the final regulations on
national markets. This analysis uses a
linear partial equilibrium model,
adapted from the COSTBEN model
developed by USDA's Economic
Research Service. The modified EPA
model provides a means to conduct a
long-run static analysis to measure the
market effects of the final regulations in
terms of predicted changes in farm and
retail prices and product quantities.
Market data used as inputs to this model
are from a wide range of USDA data and
land grant university research. Once
price and quantity changes are
predicted by the model, EPA uses
national multipliers that relate changes
in sales to changes in total direct and
indirect employment and also to
national economic output. These
estimated relationships are based on the
Regional Input-Output Modeling System
(RIMS II) from the U.S. Department of
Commerce. The details of the market
analysis are described in the Economic
Analysis. . . • '
a. Commodity prices and quantities.
EPA's market model predicts that the
final rule will not result in significant
industry-level changes in production
and prices for most sectors. Predicted
changes in animal production might
raise producer prices as the market
adjusts to the final regulatory
requirements. For most sectors, EPA
estimates that producer price changes
will rise by less than one percent of the
pre-regulation baseline "price. The
exception is in the hog sector, where
estimated compliance costs slightly
exceed one percent of the baseline price.
At the retail level, EPA expects that the
final rule will not have a substantial
impact on overall production or
consumer prices fqr value-added meat,
eggs, and fluid milk and dairy products.
EPA estimates that retail price increases
resulting from this rule will be less than
one percent of baseline prices in all
sectors, averaging below the rate of
general price inflation for all foods. In
terms of retail level price changes, EPA
estimates that poultry and red meat
prices 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.
b. Aggregate employment and
national economic output. EPA does not
expect the final rule to cause 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 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 might be stimulated as a result of
the final rule, such as the construction
and farm services sectors.
Employment losses are measured in
full-time equivalents (FTEs) per year,
including both direct and indirect
employment. EPA estimates that the
reduction in total direct employment is
about 1,600 FTEs. This projected change
is compared to total national
employment of about 129.6 million jobs
in 1997. More detailed information on
these results is presented in the
Economic Analysis.
c. Regional and community impacts.
EPA considered whether die final 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 reduction
in farm production (in- or out-
migration) in different regions and
communities. Ongoing structural and
technological changes in these
industries have influenced where
farmers operate and have contributed to
locational shifts between the traditional
production regions and the emergent,
nontraditiqnal regions. Production is
growing rapidly in the emergent regions
because of competitive pressures and
because specialized producers tend to
have the advantage of lower per-unit
costs of production. This is especially
true in hog and dairy production.
To evaluate the potential for
differential impacts among farm
production regions, EPA examined
employment impacts by region. EPA
also evaluated whether the final
requirements could result in substantial
changes in volume of production, given
predicted facility closures, within a
particular production region. EPA
concludes from these analyses that
regional and community level effects are
estimated to be modest, but do tend to
be concentrated within the more
traditional agricultural regions. This
analysis is discussed in the Economic
Analysis.
EPA does not expect that this rule
will have a significant impact on where
animals are raised. On one hand, on-site
improvements in waste management
and disposal, as required by the final
rule, could accelerate recent shifts in
production to more nontraditional
regions as higher-cost producers in
some regions exit the market to avoid
the relatively high retrofitting costs
associated with bringing existing
facilities into compliance. On the: other
hand, the final regulations might favor
more traditional production systems
where operators grow bofli livestock and
crops, since these operations tend to
have available cropland for land .
application of manure nutrients. These
types of operations tend to be more
diverse and less specialized and,.
generally, smaller in size. Long-standing
farm services and input supply
industries in these areas could likewise
benefit from the final rule, given the
need to support on-site improvements
in manure management and disposal.
Local and regional governments, as well
as other nonagricultural enterprises,
would also benefit.
d. Foreign trade impacts. Foreign
trade impacts are difficult to predict
because agricultural exports are
determined by economic conditions in
foreign markets and changes in the
international exchange rate for the U.S.
dollar. However, EPA predicts that
foreign trade impacts as a result of the
final rule will be minor given the
relatively small projected changes in
overall supply and demand for these
products and the slight increase in
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market prices, as described in section
VIII.B.2(a). Measured as potential for
changes in traded volumes, such as
increases in imports and decreases in
exports, EPA estimates that increases in
imports and decreases in exports will
each total less than 1 percent compared
to baseline (pre-regulation) levels in
each of the commodity sectors. Based on
these results, EPA believes that any
quantity and price changes resulting
from the final rule will not significantly
alter the competitiveness of U.S. export
markets for meat, dairy foods, and
poultry products.
C. Cost-Benefit and Cost-Effectiveness
Analyses
1. Cost-Benefit Analysis
This section presents a comparison of
the costs and benefits attributable to the
final rule. As Table 8.4 shows, the
economic value of the environmental
benefits EPA is able to monetize (i.e.,
evaluate in dollar terms) is comparable
to the estimated costs of the rule. As
discussed in section VII, EPA estimates
that the monetized benefits of the final
rule range from $204 million to $355
million annually. Monetized benefit
categories are primarily in the areas of
improved surface water quality
(measured in terms of enhanced
recreational value), reduced nitrates in
private wells, reduced shellfish bed
closures from pathogen contamination,
and reduced fish kills from episodic
events. As discussed in Section VII of
this preamble, EPA also identified a
number of benefits categories that could
not be monetized. These benefits are
described in more detail in Section VII
of this preamble and in the Benefits
Analysis and other supporting
documentation provided in' the
administrative record.
This compares to EPA's estimate of
the total social costs of the final
regulations of about $335 millior.
annually. These costs cover compliance
costs to all CAFOs (Large, Medium, and
Small), and administrative costs to
States and federal governments. Costs to
all CAFOs are estimated at $326 million
per year (pre-tax, $2001). EPA estimates
the administrative cost to State and
federal governments to implement this
rule is $9 million per year. There may
be additional social costs that have not
been monetized. For. a detailed
discussion of these costs, see the
Technical Development Document and
the Economic Analysis. A comparison of
the total costs and benefits for other
regulatory options considered and
analyzed by EPA can be found in the
Economic Analysis.
TABLE 8.4.—TOTAL ANNUAL MONETIZED SOCIAL COSTS AND BENEFITS
[Millions of 2001 dollars]
Category
Social Costs:
Industry Compliance Costs (pre-tax)
State/Federal Administrative Costs
Total
Benefits (Total for all CAFOs)
Large CAFOs
$298
5
304
$204 to $355
All CAFOs
$352
g
360
o
"Benefits analysis does not reflect monetized benefits for Medium CAFOs. May not add due to rounding.
Sea Table 7.1 for information on benefit categories that EPA was not able to monetize.
2. Cost-Effoctiveness Analysis
As part of the process of developing
effluent limitations guidelines and
standards, EPA typically conducts a
cost-effectiveness (C-E) analysis to
compare the efficiencies of regulatory
options for removing pollutants. This
analysis defines cost-effectiveness as the
incremental annualized cost of a
regulatory control option per
incremental pound of pollutant
removed annually by that option.
The American Society of Agricultural
Engineers reports that the constituents
present in livestock and poultry manure
include boron, cadmium, calcium,
chlorine, copper, iron, lead, magnesium,
manganese, molybdenum, nickel,
potassium, sodium, sulfur, zinc,
nitrogen and phosphorus species, TSS,
and pathogens. Of these pollutants,
EPA's standard C-E analysis is suitable
to analyze only the removals of metals
and metallic compounds. EPA's
standard C-E analysis does not
adequately address removals of
nutrients, TSS, and pathogens. To
account for the estimated removal of
nutrients and sediments under the final
rule, the Agency developed an
alternative approach to evaluate the
pollutant removal effectiveness for
nutrients and sediment relative to the
cost of these pollutant removals.
The C-E analysis conducted for this
rule evaluates the cost-effectiveness of
removing select non-conventional and
conventional pollutants, including
nitrogen, phosphorus, and sediments.
For this analysis, sediments are used as
a proxy for TSS. This analysis compares
the estimated compliance cost per
pound of pollutant removed to a
recognized benchmark, such as EPA's
benchmark for conventional pollutants
or other criteria for existing treatment,
as reported in available cost-
effectiveness studies. The research in
this area has mostly been conducted at
municipal facilities, including publicly
owned treatment works (POTWs) and
wastewater treatment plants (WWTPs).
Additional information is available
based on the effectiveness of various
nonpoint source controls and BMPs and
other pollutant control technologies that
are commonly used to control runoff
from agricultural lands. A summary of
this literature is provided in the
Economic Analysis. Benchmark
estimates were used to evaluate the
efficiency of the final rule in removing
a range of pollutants. This approach also
allowed for an assessment of the types
of management practices that will be
implemented to comply with the final
regulations.
For this analysis, EPA estimated
average cost-effectiveness values that
reflect the increment between no
revisions to the current regulations and
the final regulatory requirements
promulgated today. All costs are
expressed in pre-tax 2001 dollars.
Estimated compliance costs used to
calculate the cost-effectiveness of the
final regulations include total estimated
costs to CAFOs and costs to the
permitting authority.
EPA estimates an average cost-
effectiveness of nutrient removal at
about $3 per pound of nitrogen removed
(pre-tax, 2001 dollars). For phosphorus
removal, removal costs are estimated at
about $7 per pound of phosphorus
removed. For nitrogen, EPA used;a cost-
effectiveness benchmark established by
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7250 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
its Chesapeake Bay Program to assess
the costs to WWTPs to implement
system retrofits to achieve biological
nutrient removal. This nitrogen ;
benchmark estimate is approximately $4
per pound of nitrogen removed, ;based
on a range of costs of $0.80 to $5.90 per
pound of nitrogen removed. EPA's
estimated cost-effectiveness to remove
nitrogen falls within the estimated range
of removal costs and is less than this
average benchmark value assumed for
this rule. For phosphorus, EPA assumed
a cost-effectiveness benchmark of
roughly $10 per pound based on a
review of values reported in the
agricultural research of the costs to
remove phosphorus using various
nonpoint source controls and
management practices. EPA's estimated
cost-effectiveness to remove phosphorus
under this rule also falls below this $10
per pound benchmark value, indicating
that the requirements are cost-effective.
This is particularly true when compared
to the reported cost to remove
phosphorus at other industrial point
source dischargers, where reported
average costs are twice that for
agricultural sources and often exceed
$100 per pound of phosphorus
removed. Based on these results, EPA
concludes that these values are cost-
effective. '
EPA also examined the cost-
effectiveness of removing sediments
under the regulations. EPA estimates a
cost of less than $0.30 per pound of
sediment removal in this rule (pre-tax,
2001 dollars). This estimated per-pound
removal cost is low compared to EPA's
POTW benchmark for conventional
pollutants. That benchmark measures
the potential costs per pound of TSS
and BOD removed for an "average"
POTW (see 51 FR 24982). Indexed to
2001 dollars, EPA's benchmark costs are
about $0.73 per pound of TSS and BOD
removed. For information on EPA's
cost-effectiveness, see the Economic
Analysis.
IX. Coordination With Other Federal
Programs
A. How Does Today's Rule Function in
Relation to Other EPA Programs?
The relationship between animal
agriculture and water quality is affected
by existing programs other than the
CAFO regulations. This section of the
preamble presents today's action in the
context of some of these other programs.
1. Water Quality Trading
EPA proposed a water quality trading
policy on May 15, 2002, for public
review and comment. The proposed
policy lays out guidelines for States and
local governments/municipalities to
consider when implementing a water
quality trading program to maintain or
reduce pollutant loading and achieve
the goals of the Clean Water Act. Water
quality trading is considered by some to
be a more efficient and quicker
pollution reduction process to meet
water quality standards than .
conventional Clean Water Act methods.
The proposed trading policy encourages
currently regulated and nonregulated
sources of pollution to interact more
and make mutually beneficial
agreements to reduce pollutant loading
they might otherwise not be motivated
to make. CAFOs may find mutually
beneficial opportunities for water
quality pollutant trading with other
point and nonpoint sources in their
watershed. For CAFOs interested in
more details about Water Quality
Trading, please go http://www.epa.gov/
ow. The trading policy includes a
general EPA water quality trading policy
statement and identifies elements that
define a successful trading program and
provisions that should ensure
consistency with the Clean Water Act.
2. Total Maximum Daily Load (TMDL)
The TMDL provisions of the Clean
Water Act are intended to be the second
line of defense for protecting the quality
of surface water resources. When
technology-based controls on point
sources are inadequate for water to meet
State, water quality standards, section
303(d) of the Clean Water Act requires
States to identify those waters and to
develop TMDLs. A TMDL study must be
conducted for each pollutant that causes
a water body to fail to meet State water
quality standards. More than 20,000
waters are identified nationally as being
impaired and possibly requiring a
TMDL. The top impairments in 1998
were sediment, nutrients, and
pathogens. AFOs and CAFOs can be
sources of all three pollutants.
A TMDL is a calculation of the
greatest amount of a pollutant that a
water body can receive without
exceeding water quality standards. A
TMDL allocates the amount of pollution
that can be contributed by the pollutant
sources. A TMDL study identifies both
point and nonpoint sources of each
pollutant that cause a water to fail to
meet water quality standards. Water
quality sampling, biological and habitat
monitoring, and computer modeling
help the TMDL writer determine how
much each pollutant source must
reduce its contribution to ensure that
the water quality standard is met.
Through the TMDL process, pollutant
loads are allocated to all sources.
Wasteloadl allocations for point sources
are enforced through NPDES discharge
permits. Load allocations for nonpoint
sources are not federally enforceable,
but can be met through voluntary-
approaches. In some impaired
watersheds, AFOs and CAFOs may be
affected by TMDLs since improved
management practices may be necessary
to restore water quality. In the case of
CAFOs, any necessary pollutant loading
reductions would be achieved through
the use of NPDES permits issued in
accordance with the requirements
contained in today's final rule.
3. Watershed Permitting
Watershed-based permits are NPDES
permits that are issued to point sources
on a geographic or watershed basis.
They focus on watershed goals arid
consider multiple pollutant sources and
stressors, including the level of
nonpoint source control needed. A
watershed approach provides a
framework for addressing all stressors
within a hydrologically defined
drainage basin instead of viewing
individual pollutant sources in
isolation. More than 20 States have
implemented some form of the
watershed approach and manage their
resources on a rotating basin cycle.
Because of the recent emphasis! on
water quality-based permits and
development of TMDLs that focus on
water quality impacts, EPA is looking at
ways to use watershed-based permits to
achieve watershed goals. The
watershed-based permit is a tool that
can assist with implementation of a
watershed approach. The utility pf this
tool relies heavily on a detailed, :
integrated, and inclusive watershed
planning process. Many of the actions
necessary for a successful TMDL are
also needed for a successful watershed
approach. The process and data needs
for developing a watershed-based
permit and for developing a TMDL are
very similar. In places where TMDLs
have been developed, watershed
permits may be useful tools for
implementing TMDLs. For example,
North Carolina's nutrient management
strategy for the Neuse River Basin
includes a watershed-based permit
approach for TMDL implementation.
The strategy recognizes the need for all
groups to work together and includes an
approach for permitted dischargers to
work collectively to meet a combined
nitrogen allocation, rather than be
subject to individual allocations. The
implementation of the approach is being
developed (NC DWQ, 1998, 2002). A
watershed permit approach was also
used for municipal discharges in
Connecticut contributing nutrients to
the Long Island Sound (CTDEP, 2001).
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ions
7251
An approach similar to those used in
North Carolina and Connecticut can be
used for permitting CAFOs within a
specific watershed.
4. Coastal Zone Act Reauthorization
Amendments of 1990 (CZARA)
In the Coastal Zone Act
Roauthorization Amendments of 1990
(CZARA), Congress required States with
federally approved coastal zone
management programs to develop and
implement coastal nonpoint pollution
control programs. Thirty-three States
and Territories currently have federally-
approved Coastal Zone Management
programs. Section 6217(g) of CZARA
called for EPA, in consultation with
other federal agencies, to develop'
guidance on "management measures"
for sources of nonpoint source pollution
In coastal waters. In January 1993 EPA
issued its Guidance Specifying
Management Measures for Sources of
Nonpoint Pollution in Coastal Waters,
which addresses five major source
categories of nonpoint pollution: urban
runoff, agriculture runoff, forestry
runoff, marinas and recreational
boating, and hydromodification. Within
the agriculture runoff nonpoint source.
category, the EPA guidance specifically
included management measures
applicable to all new and existing
"confined animal facilities." The
guidance identifies which facilities
constitute large and small confined
animal facilities based solely on the
number of animals confined. The
manner of discharge is not considered.
Under the CZARA guidance, a large beef
feedlot contains 300 head or more, a
small feedlot between 50 and 299 head;
a large dairy contains 70 head or more,
a small dairy between 20 and 69 head;
a large layer or broiler contains 15,000
head or more, a small layer or broiler
between 5,000 and 14,999 head; a large
turkey facility contains 13,750 head or
more, a small turkey facility between
5,000 and 13,749 head; and a large
swine facility contains 200 head or
more, a small swine facility between
100 and 199 head.
Tho thresholds in the CZARA
guidance for identifying large and small
confined animal facilities are lower than
those established for defining CAFOs
under today's rules. Thus, in coastal
States the CZARA management
measures potentially apply to a greater
number of small facilities than today's
CAFO definition. Despite the fact that
both the CZARA management measures
for confined animal facilities and the
NPDES CAFO regulations address
similar operations, these programs do
not overlap or conflict with each other.
CZARA applies to nonpoint source
dischargers. Any CAFO facility, as
defined by 40 CFR Part 122, that has an
NPDES CAFO permit, is a point source
discharger and thus not subject to
CZARA. Similarly, if a facility subject to
CZARA management measures is later
designated a CAFO by an NPDES
permitting authority, the facility is no
longer subject to CZARA. With respect
to AFOs, some of these facilities may be
subject to both NPDES and CZARA
requirements, if they have both point
and nonpoint source discharges. EPA's
CZARA guidance provides that new
confined animal facilities and existing
large confined animal facilities should
limit the discharge of facility
wastewater and runoff to surface waters
by storing such wastewater and runoff
during storms up to and including
discharge caused by a 25-year, 24-hour
storm. Storage structures should have an
earthen or plastic lining, be constructed
with concrete, or constitute a tank. All
existing small facilities should design
and implement systems that will collect
solids, reduce contaminant
concentrations, and reduce runoff to
minimize the discharge of contaminants
in both wastewater and in runoff caused
by storms up to and including a 25-year,
24-hour storm. Existing small facilities
should substantially reduce pollutant
loadings to ground water. Both large and
small facilities should also manage
accumulated solids in an appropriate
waste utilization system. In addition to
the confined animal facility
management measures, the CZARA
guidance includes a nutrient
management measure intended to be
applied by States to activities associated
with the application of nutrients to
agricultural lands (including the
application of manure). The goal of this
management measure is to minimize
edge-of-field delivery of nutrients and
minimize the leaching of nutrients from
the root zone. The nutrient management
measures also provide for the
development, implementation, and
periodic updating of a nutrient
management plan.
5. Clean Water Act Sec. 319 Program
Congress amended the Clean Water
Act in 1987 to establish the section 319
Nonpoint Source Management Program
because it recognized the need for
greater federal leadership to help focus
State and local nonpoint source efforts.
Under section 319, States, Territories,
and Indian Tribes receive grants to
implement their approved management
programs for controlling non-point
source pollution, which may include a
wide variety of activities, including
technical assistance, financial
assistance, education, training,
technology transfer, demonstration
projects, and monitoring to assess the
success of specific nonpoint source
implementation projects. More than 40
percent of section 319 Clean Water Act
grants have been used for activities to
control and reduce agricultural •'
nonpoint source pollution. Also, several
USDA and State-funded programs
provide cost-share, technical assistance,
and economic incentives to implement
NFS pollution management practices.
6. Source Water Protection Program
Although many States, water systems,
and localities have established
watershed and wellhead protection
programs, the 1996 Safe Drinking Water
Act Amendments placed a new focus on
source water quality. States have been
given access to funding and required to
develop Source Water Assessment
Programs to assess the areas serving as
public sources of drinking water in
order to identify potential threats and
initiate protection efforts.
The Source Water Assessment
Programs created by States differ
because they are tailored to each State's
water resources and drinking water
priorities. However, each assessment
must include four major elements:
delineating (or mapping) the source
water assessment area, conducting an
inventory of potential sources of
contamination in the delineated area,
determining the susceptibility of the
water supply to those contamination
sources, and releasing the results of the
determinations to the public.
Although a number of measures are in
place to protect and retain the high
quality of the Nation's drinking water,
drinking water sources are subject to a
number of threats, including growing
population, chemical use, and animal
wastes. Improper disposal of chemicals,
animal wastes, pesticides, and human
wastes, as well as the persistence of
naturally occurring minerals, can
contaminate drinking water sources.
Like human wastes, animal wastes
contain pathogens, such as E. coli, that
can sicken hundreds of people and kill
the very young and old and people with
weakened immune systems. These
wastes can enter drinking water
supplies in runoff from feedlots and
pastures.
In addition to these State efforts, EPA
is working with a broad spectrum of
stakeholders to develop a national
strategy to prevent source water
contamination. When it is complete, the
strategy will reflect what EPA's Water
Program can do to further source water
contamination prevention nationwide.
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7. What Is EPA's Position Regarding
Environmental Management Systems?
The Agency supports the voluntary
adoption of environmental management
systems (EMSs) by CAFOs. On May 15,
2002, the Administrator announced the
Agency's Position Statement on
Environmental Management Systems.
This statement outlines the policy and
principles by which the Agency will
work with industry to promote the use
of EMSs to improve environmental
protection. EPA promotes the wide-
spread use of EMSs across a range of
organizations and settings, with
particular emphasis on adoption of
EMSs to achieve improved
environmental performance and
compliance, and pollution prevention
through source reduction. The Agency
encourages organizations to implement
EMSs based on the plan-do-check-act
framework, with the goal of continual
improvement. An organization's EMS
should address its entire environmental
footprint (everywhere it interacts with
the environment both negatively and
positively), including both regulated
and unregulated impacts, such as energy
and water consumption, dust, noise,
and odor. EPA supports EMSs that are
appropriate to the needs and
characteristics of specific sectors and
facilities.
An operation could choose to
implement an EMS that could include a
CNMP, but would also include policies
and practices designed to address other
significant environmental problems.
EPA, as part of its overall policy on
EMSs, supports adoption of these
systems in a variety of sectors, including
agriculture. EPA has worked with
specific agricultural producer groups
like the United Egg Producers to
develop a voluntary EMS program.
USDA is also funding a major effort
through the University of Wisconsin
called Partnerships for Livestock
Environmental Assessment
Management Systems. This project is
designed to provide information and
other guidance on ways to use EMSs
effectively in a variety of agricultural
settings. EPA serves on the Advisory
Committee for this effort, along with
USDA and other federal agencies.
In the 2001 Notice, EPA outlined
options for how an EMS program may
be incorporated into the rule. These
options were based on ISO 14000
criteria, an international standard. EPA
received a number of comments on
these options. Industry was split in
support of EMS: some groups thought
that use of EMSs in the proposal
exceeded authorities provided under the
Clean Water Act, whereas others
welcomed EMSs as an alternative to co-
permitting. Environmental groups were
concerned that reliance on EMS
constituted a roll-back of rule
requirements.
EPA is not including an EMS as an
option in this final rule. EPA recognizes,
based on comments, that offering an
EMS alternative made the rule more
complex and was not entirely consistent
with the Agency's goal to keep the rule
simple, easy to understand and easy to
implement. However, EPA supports the
use of EMS by States, as appropriate. In
today's rule, EPA is requiring that
CAFOs develop and implement nutrient
management plans that can help CAFOs
manage manure and protect water
quality. CAFOs may want to consider
implementation of nutrient management
plans as part of a broader EMS to
manage the specific impacts of excess
nutrients. The CAFO's EMS would be
broader than just a nutrient management
plan, however, and would cover all
media and both regulated and
unregulated aspects.
More information on EPA's EMS
policy, along with sector-specific EMS
templates and guidance is provided at
www.epa.gov/ems.
B. Howls EPA Coordinating With Other
Federal Agencies?
EPA and USDA are committed to
working together to provide coordinated
assistance to animal agriculture for the
betterment of animal agriculture and the
environment. The agencies are working
together to educate farmers, suppliers,
USDA field representatives, consultants,
and others on these new regulations.
Both EPA and USDA believe in the
importance of providing education,
training and technical assistance to all
involved in animal agriculture that can
play a role in helping farmers
understand the new requirements and
how they can meet them. EPA and
USDA have different roles and different
constituencies. EPA sets the
requirements, works toward compliance
by industry, and enforces against
noncompliance. USDA provides
technical assistance, education, and
training to farmers, growers, and allied
industries. This education, training, and
technical assistance will be vitally
important to CAFO^perators as they
work to come into compliance with the
new regulations. The Natural Resource
Conservation Service and the
Cooperative State Research, Education,
and Extension Service are the key USDA
agencies that will work with farmers to
educate them on the requirements of the
EPA CAFO rule. USDA will continue to
educate EPA personnel on the
intricacies of animal agriculture so that
the Agency can improve its
communication with this vital sector.
There was significant comment on the
proposed rule on how EPA and USDA
should work together with farmers to
implement this rule. Some thought the
implementation should be left to USDA
NRCS and CSREES. Others thought EPA
and USDA should work together in the
field in a coordinated effort to educate,
regulate and assist AFOs and CAFOs.
One commenter suggested that EPA
monitor water quality and NRCS <
provide technical assistance. A few
comments asked that EPA join other
federal agencies and conduct a
comprehensive examination of the
problems generated by CAFOs. •
EPA and USDA believe that only by
working in close partnership will-the
federal government provide the best
service to farmers and the rest of the
American public. It is EPA's intent and
commitment to communicate and
coordinate effectively across Agencies
and Departments. Animal agriculture is
important to this country, as is a sound,
healthy environment. EPA and USDA
believe these two goals can be jointly
achieved. • - '
X. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order 12866 (58 FR
51735, October 4,1993), the Agency
must determine whether a regulatory
action is "significant" and therefore
subject to OMB review and the
requirements of the Executive Order.
The Order defines a "significant ',
regulatory action" as one that is likely
to result in a rule that may:
1. Have an annual effect on the!
economy of $100 million or more, or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or Tribal governments or
communities;
2'. Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
3. Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
4. Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order.
It has been determined that this rule
is a "significant regulatory action!'
under the terms of Executive Order
12866. As such, this action was
submitted to OMB for review. Changes
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7253,
made in response to OMB suggestions or
recommendations will be documented
In the public record.
B. Papenvprk Reduction Act
The Office of Management and Budget
(OMB) has approved the information
collection requirements contained in
this rule under the provisions of the
Paperwork Reduction Act, 44 U.S.G.
3501 ct seq. and has assigned OMB
control number 2040-0250.
The information collection
requirements affect operations that are
defined or designated as CAFOs under
the final rule and, therefore, are subject
to the record keeping, data collection,
and reporting requirements associated
with applying for and complying with
an NPDES permit. They also affect the
43 States with approved NPDES
programs that administer NPDES
permits for CAFOs ("approved States").
EPA and approved States use the
information routinely collected through
NPDES permit applications and
compliance evaluations in the following
ways: to issue NPDES permits with
appropriate limitations and conditions
that comply with the Clean Water Act;
to update information in EPA's
databases that permitting authorities use
to determine permit conditions; to
calculate national permit issuance,
backlog, and compliance statistics; to
evaluate national water quality; to assist
EPA in program management and other
activities that ensure national
consistency in permitting; to assist EPA
in prioritizing permit issuance
activities; to assist EPA in policy
development and budgeting; to assist
EPA in responding to Congressional and
public inquiries; and to ensure
compliance with the terms and
conditions of the permit.
The responses to the information
collection requirements are mandatory
for CAFOs. CAFOs are denned as point
sources under the NPDES program (33
U.S.C. 1362). Under 33 U.S.C. 1311 and
1342, a CAFO must obtain an NPDES
permit and comply with the terms of
that permit, which include appropriate
record keeping and reporting
requirements. Furthermore, 33 U.S.C.
1318 provides authority for information
collection (i.e., record keeping,
reporting, monitoring, sampling, and
other information as needed), which
applies to point sources. Approved
States will also incur burden for record
keeping, data collection, and reporting
requirements when they revise and
implement any program changes
necessitated by the final rule. Under 40
CFR 123.62(e), State NPDES programs
must at all times be in compliance with
federal regulations.
CAFOs must develop their nutrient
management plans, retain them onsite,
and make them available to the
permitting authority on request. These
plans may contain confidential business
information. When this is the case, the
respondent can request that such:
information be treated as confidential.
All confidential data will be handled in
accordance with 40 CFR 122.7, 40 CFR .
Part 2 (40 CFR 2.201 et seq.), and EPA's
Security Manual Part III, Chapter ;9,
dated August 9,1976.
EPA estimates that the average annual
public burden for this rule making will
be 1.9 million hours. This estimate
includes 0.3 million hours for State
respondents and 1.6 million hours for
CAFO respondents. It includes the time
required to review instructions, search
existing data sources, gather and
maintain all necessary data, and
complete and review the information
collection. Table 10.1 provides the
breakdown of these estimates by type of
response. Average annual capital and
O&M costs will total $5.9 million. This
estimate includes $1.3 million in CAFO
capital costs to purchase sampling
equipment, install depth markers; and
purchase services for the engineering
portion of the nutrient management
plan. Average annual CAFO O&M costs
of $2.9 million include laboratory
analyses of soil and manure samples,
tractor rental, and record keeping costs.
Average annual State O&M costs of $1.7
million pay for public notifications.
TABLE 10.1.—BURDEN ESTIMATES PER RESPONSE
Activities
Response
frequency
Average an-
nual burden
(hours)
Average an-
nual
responses 1
Labor cost
($ millions)
CAFO Respondents
Start-up Activities
PemnR Application Activities and NOIs
ELG and NPDES Data Collection and Record Keeping Activities:
Visual inspections
Equipment inspection
Manure sampling
Soli sampling
ELG and NPDES record keeping
Additional NPDES Record Keeping and Reporting Activities:
Nutrient management plan
Manure transfer record keeping
Annual report
Compliance inspections
One time
Every 5 years
Annual
Annual
Annual
Annual
Every 5 years '
Annual
Annual
Per inspection . . .
14493
43479
152260
32238
26 088
31 057
936 982
250 168
102858
11 712
9370
4 831
4 831
11 712
8 060
11 712
3 613
11 712
4 831
7 347
11 712
2 342
$0 32
0 95
1 67
0 35
0 29
(1 iA
10 31
9 06
1 13
0 26
020
State Respondents
NPDES Program Modification Activities
General Permit Activities
Individual Permit Activities :
Compliance Evaluation:
Inspections
Annual Reports
One time
Annual
Annual
Annual
3 583
31 598
174 143
36 317
45,397
14
3 277
1 573
2 270
11,349
011
0 94
5 19
1 nft
1.35
1 For CAFOs, the number of respondents for each type of response equals the number of responses. For approved States, these estimates
differ. There are 43 approved States responding to the information collection requirements, but the number of responses for some activities can
bs greater because the estimate depends on the number of CAFOs submitting information or undergoing inspections. EPA is the permitting au-
thority for some CAFOs, so the response estimates for CAFOs and States will differ.
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These burden and cost estimates have
been updated since the proposed rule to
reflect changes in the final rule. The
Agency received only a few comments
on the PRA section of the preamble for
the proposed rule. Most commenters
believed that the number of affected
operations was underestimated. EPA
revised its estimate of total AFO
operations and its estimate of affected
CAFO operations. The final rule
requirements results in fewer CAFQs
compared to the proposed rule
estimates.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a federal
agency. This includes the time needed
to review instructions; develop, acquire,
install, and utilize technology and
systems for the purposes of collecting,
validating, and verifying information,
processing and maintaining
information, and disclosing and
providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to1 be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
An Agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA's regulations are listed
in 40 CFR Part 9 and 48 CFR Chapter
15. EPA. is amending the table in 40 CFR
Part 9 of currently approved ICR control
numbers issued by OMB for various
regulations to list the information
requirements contained in this final
rule.
C. Regulatory Flexibility Act ;
1. Background
The RFA generally requires an agency
to prepare a regulatory flexibility
analysis for any rule subject to notice
and comment rulemaking requirements
under the Administrative Procedure Act
or any other statute unless the agency
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities.
Small entities include small businesses,
small organizations, and small '
governmental jurisdictions.
For purposes of assessing the impacts
of today's rule on small entities, small
entity is defined as (1) A small business
based on annual revenue standards
established by the Small Business
Administration (SBA), with the
exception of one of the six industry
sectors where an alternative definition
to SBA's is used; (2) a small
governmental jurisdiction that is a
government of a city, county, town,
school district or special district with a
population of less than 50,000; and (3)
a small organization that is any not-for-
profit enterprise which is independently
owned and operated and is not
dominant in its field.
For purposes of assessing the impacts
of today's rule on small entities in the
egg-laying sector, EPA considered small
entities in this sector as an operation
that generates less than $1.5 million in
annual revenue. A summary of EPA's
rationale and supporting analyses
pertaining to this alternative definition
is provided in the record and in section
4 of the Economic Analysis. See
discussion under "Use of Alternative
Definition" later in this section. Because
this definition of small business is not
the definition established under the
RFA, EPA proposed using this
alternative definition in the Federal
Register and sought public comment.
See 66 FR 3099. EPA also consulted
with SBA Chief Counsel for Advocacy
on the use of this alternative definition.
In accordance with section 603 of the
RFA, EPA prepared an initial regulatory
flexibility analysis (IRFA) for the
proposed rule and convened a Small
Business Advocacy Review (SBAR)
Panel to obtain advice and ,
recommendations of representatives of
affected small entities in accordance
with section 609(b) of the RFA. See 66
FR 3121-3124; 3126-3128 (January 12,
2001). A detailed discussion of the
SBAR Panel's advice and
recommendations can be found in the
Final Report of the Small Business
Advocacy Review Panel on EPA's
Planned Proposed Rule on National
Pollutant Discharge Elimination System
and Effluent Limitations Guideline
Regulations for Concentrated Animal
Feeding Operations, April 7, 2000. This
document is included hi the public
record (DCN 93001). The 2001 proposal
provides a summary of the Panel's
recommendations. (See 66 FR 3121—
3124).
As required by section 604 of the
RFA, EPA prepared a final regulatory
flexibility analysis (FRFA) for today's
final rule. The FRFA addresses the
issues raised by public comments on the
IRFA, which was part of the proposal
for this rule. The FRFA is available for
review in the docket and is summarized
below.
2. Summary of Final Regulatory
Flexibility Analysis
As required by section 604 of the
RFA, EPA also prepared a final
regulatory flexibility analysis (FRFA) for
today's rule. The FRFA addresses the
issues raised by public comments on the
IRFA, which was part of the proposal of
this rule. The FRFA is available for
review in the docket (in section 4. of the
final Economic Analysis). A summary is
provided below.
a. Need for and objectives of the
regulations. A detailed discussiork of the
need for the regulations is presented in
section rV of the 2001 preamble (66 FR
2972-2976). A summary is also
provided in section 4 of the final
Economic Analysis. In summary, EPA's
rationale for revising the existing
regulations include the following:
address reports of continued discharge
and runoff from livestock and poultry
operations in spite of the existing'
requirements; update the existing
regulations to reflect structural changes
in these industries over the past few
decades; and improve the effectiveness
of the existing regulations. A detailed
discussion of the objectives and legal
basis for the rule is presented in
sections I and HI of the proposal
preamble (66 FR 2959).'
b. Significant Comments on the IRFA.
The significant issues raised by public
comments on the IRFA address
exemptions for small businesses,
disagreement with SBA definitions and
guidance on how to define small
businesses for these sectors, and general
concerns about EPA's financial analysis
and whether it adequately captures
potential financial effects on small
businesses.
Commenters generally recommend
that EPA exempt all small businesses
from regulation, arguing in some cases
that regulating small businesses could
affect competition in the marketplace,
discourage innovation, restrict
improvements in productivity, create
entry barriers, and discourage potential
entrepreneurs from introducing
beneficial products and processes.
Several commenters claimed that 3PA
had misrepresented the number or small
businesses. In particular, several
commenters objected to SBA's small
business definition for dairy operations,
claiming it understates the number of
small businesses in this sector. One
commenter claimed that EPA's estimate
of the total number of operations is
understated and therefore must
understate the number of small
businesses. Some commenters objected
to the consideration of total farm-level
revenue to determine the number, of
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small businesses since this understates
the number of small businesses (despite
SBA guidance, which bases its
definitions on total entity revenue for
purposes of defining a small business).
However, other commenters claimed
that EPA's approach to its small
business analysis does not only capture
operations that are, in fact, small
businesses but also larger corporate
operations. Another commenter
recommended that EPA simply consider
any operation with fewer than 1,000
animal units a small business. EPA also
received comments requesting that EPA
consider use of regional-specific
definitions of small business because of
concerns that the revenue-based SBA
definition might not be applicable to
operations in Hawaii since producers in
that State generally face higher cost of
production and also higher producer
prices relative to revenue and cost
conditions at farms in the contiguous 48
States. Comments from SBA
recommended that EPA adopt the
Panel's recommendation not to consider
changing the designation criteria for .
operations with fexver than 300 animal
units as a means to provide relief to
small businesses. SBA also
recommended that EPA adopt the SBAR
Panel's approach and allow permitting
authorities to focus resources where
there is greatest need. Finally, some
commenters generally questioned the
results of EPA's financial analysis,
giving similarly stated concerns about
EPA's financial data and models used
for its main analysis.
In response, EPA notes that the
projected impacts of today's final
regulations on small businesses are
lower than the projected impacts of the
proposed rule. For example, the final
rule does not extend the effluent
guideline regulations to Medium
CAFOs, as was proposed in the 2001
proposal. Instead, EPA is retaining the
existing regulatory threshold, applying
the effluent guideline to Large CAFOs
only. Requirements for Medium CAFOs
will continue to be subject to the BPJ
requirements as determined by the
permitting authority, thus requiring that
fewer small businesses adopt the
effluent guideline standards. More
information on this topic is available in
section IV of this preamble. Section IV
discusses other regulatory changes since
the 2001 proposal, indicating greater
alignment with SBAR Panel
recommendations. Refer to section IV of
this preamble for more information on
the comments and EPA's responses to
those comments, as well as EPA's
justification for final decisions on these
options.
Regarding EPA's estimate of the
number of small businesses, the Agency
continues to follow SBA guidance and
SBA definitions on how to define small
businesses for these sectors. However,
EPA has made substantial changes to
the financial data and models used for
its main analysis, which is also used to
evaluate financial effects on small
businesses. Both the 2001 Notice (66 FR
58556) and the 2002 Notice (67 FR
48099) describe the public comments
received by EPA on the baseline
financial data and the methodological
approach developed by EPA to evaluate
financial effects. These comments and
how EPA has addressed them are
discussed more fully in section 4 of the
final Economic Analysis. EPA's detailed
responses to comments, and the
comments themselves, are contained in
the Comment Response Document in
response categories SBREFA and Small
Business.
c. Description and estimation of
number of small entities to which the
regulations will apply. The small
entities subject to this rule are small
businesses. No nonprofit organizations
or small governmental operations
operate CAFOs. As discussed in section
Vm.B.l(c) of this preamble, to estimate
the number of small businesses affected
by this final rule, EPA relied on the SBA
size standards for these sectors, with the
exception of size definitions for the egg
sector. SBA defines a "small business"
in these sectors as an operation with
average annual revenues of less than
$0.75 million for dairy, hog, broiler, and
turkey operations; $1.5 million in
revenue for beef feedlots; and $9.0
million for egg operations. The
definitions of small business for the
livestock and poultry industries are in
SBA's regulations at 13 CFR 121.201.
For this rule, EPA proposed and
solicited public comment on and is
using an alternative definition for small
business for egg-laying operations. EPA
defines a "small" egg laying operation
for purposes of its regulatory flexibility
assessments as an operation that
generates less than $1.5 million in
annual revenue. EPA consulted with
SBA on the use of this alternative
definition, as documented in the
rulemaking record for the 2001
proposal. Given these definitions, EPA
evaluates "small business" for this rule
as an operation that houses or confines
fewer than 1,400 fed beef cattle
(includes fed beef, veal, and heifers);
300 mature dairy cattle; 2,100 market
hogs; 37,500 turkeys; 61,000 layers; or
375,000 broilers. The approach used to
derive these estimates is described in
the Economic Analysis and in the
record.
Using these definitions and available
data from USDA and industry, EPA
estimates that 6,200 of affected CAFOs
across all size categories are small
businesses. Among Large CAFOs,: EPA
estimates that about 2,330 operations
are small businesses. Ampng Medium
CAFOs, EPA estimates that about;3,870
operations are small businesses. Table
8.3 in section VIII of this preamble
shows EPA's estimates of the number of
regulated small businesses across; all
industry sectors. Section VIII.B.l(c)
provides more detail on the estimated
financial effects on small businesses
under the final rule.
d. Description of the reporting, record-
keeping, and other compliance
requirements. Today's rule would
require all AFOs that meet the CAFO
definition to apply for a permit, develop
and implement a nutrient management
plan, collect and maintain records
required by applicable technology-based
effluent discharge standards, and submit
an annual report to the responsible
NPDES permitting authority. (No
nonprofit organizations or small
governmental operations operate
CAFOs.) All CAFOs would also be
required to maintain records of off-site
transfers of manure. Record-keeping and
reporting burdens include the time to
record and report animal inventories,
manure generation, field application of
manure (amount, method, date, weather
conditions), manure and soil analysis
results, crop yield goals, findings .iom
visual inspections of feedlot areas, and
corrective measures. Records may
include manure spreader calibration
worksheets, manure application
worksheets, maintenance logs, and soil
and manure test results. EPA believes
the owner/operator has the skills
necessary to keep these records and
make reports to the permitting
authority.
Section X.B further summarizes the
expected reporting and record-keeping
requirements under the final regulations
based on information compiled as part
of the ICR for the Final NPDES and ELG
Regulatory Revisions for Concentrated
Animal Feeding Operations (EPA ICR
No. 1989.01) prepared by EPA.
e. Steps taken to minimize significant
impacts on small entities. In today's
final rulemaking, EPA has adopted an
approach for a regulatory program that
mitigates impacts on small business,
recognizes and promotes effective non-
NPDES State programs, and works in
partnership with USDA to promote
environmental stewardship through
voluntary programs, and financial and
technical assistance. EPA's proposal
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7256 Federal Register/Vol. 68, No; 29/Wednesday, February 12, 2003/Rules and Regulations
included many options that were not
finally adopted in deference to these
principles.
Because of the estimated impacts on
small entities EPA is not certifying that
this rule will not impose a significant
impact on a substantial number of small
entities. EPA has complied with all RFA
provisions and conducted outreach to
small businesses, convened a SBAR
panel, prepared an Initial Regulatory
Flexibility Analysis (IRFA) and a Final
Regulatory Flexibility Analysis (FRFA),
and also prepared an economic analysis.
The Agency's actions include the
following efforts to minimize impacts
on small businesses:
• Retained structure of existing
regulations, which allows EPA and
states to focus on the largest producers;
• Retained applicability of effluent
guidelines for Large CAFOs only;
• Retained existing designation
criteria and process;
• Retained existing definition of an
AFO;
• Retained conditions for being
defined as a Medium CAFO;
• Eliminated the "mixed" animal
calculation for operations with more
than a single animal type for
determining which AFOs are CAFOs;
• Raised the duck threshold for dry
manure handling duck operations; and
• Adopted a dry-litter chicken
threshold higher than proposed.
EPA went to some length to explore
and analyze a variety of ELG regulatory
alternatives to minimize impacts on
small businesses. The record for today's
rule includes extensive discussions of
the alternatives, EPA's analysis of those
alternatives, and the rationale for the
Agency's decisions. In large part, the
Agency incorporated most of the
alternative considerations to reduce the
burden to small businesses. By way of
example, today's regulations will affect
fewer small businesses at significantly
reduced costs, as compared to the
estimates of the number of small
businesses and expected costs to those
businesses based on the requirements
set forth in the 2001 proposal. For more
information on EPA's option selection
rationale, see section IV of this
preamble. :
3. Compliance Guide
As required by section 212 of
SBREFA, EPA is also preparing a small
entity compliance guide to help small
businesses comply with this rule. To
request a copy, contact one of the
persons identified in the FOR FURTHER
INFORMATION CONTACT section at the
beginning of this preamble. EPA expects
that the guide will be available in March
2003.
4. Use of Alternative Definition
The RFA defines small entities as
including small businesses, small
governmental jurisdictions, and small
organizations. The statute provides
default definitions for each type of small
entity. It also authorizes an agency to
use alternative definitions for each
category of small entity, "which are
appropriate to the activities of the
agency" after proposing the alternative
definition(s) in the Federal Register and
taking comment. 5 U.S.C: 601(3)-(5). In
addition to the above, to establish an
alternative small business definition,
agencies must consult with SBA's Chief
Counsel for Advocacy.
As stated above, EPA proposed
defining "small entity" for purposes of
its regulatory flexibility assessments
under the RFA as an operation that
generates less than $1.5 million in
annual revenue. The Agency also
consulted with SB A Chief Counsel for
Advocacy. See 66 FR 2959, (January 12,
2001).
EPA received two comments from the
same commenter requesting that EPA
not use the alternative definition for
egg-laying operations but instead
consider regional-specific conditions for
determining the number of small
businesses. The commenter expressed
concern that SBA's revenue-based
definition might not be applicable to
operations in Hawaii since producers in
that State generally face higher cost of
production and also higher producer
prices relative to revenue and cost
conditions at farms in the contiguous 48
States. There are a number of reasons
why EPA did not use a regional-specific
definition of small business for egg
operations. First, consistent with the
RFA, EPA uses small business
definitions as defined by the SBA
except in cases where EPA consults
with the SBA Chief Counsel for
Advocacy. Since size standards set by
the SBA do not vary by region, EPA
follows SBA's lead. Second, the
regulations set requirements by the
number of animal units at a farm, not
the revenues associated with those
animal units. An 82,000 bird egg-laying
operation in the Midwest will be subject
to the same effluent limitations
guidelines as a 82,000 bird egg-laying
operation in Hawaii and the territories.
Third, the economic analysis, uses a
representative farm approach. Only the
broadest regional information could be
obtained through USDA and other
sources. Although some small
subregions or localities might face
unique issues, without performing a
Section 308 survey of all regulated
entities EPA must rely on the
representative farm approach. (See also
response to comment DCN I
CAFO201246-G-6 regarding EPA,'s use
of a representative farm approach,
which is consistent with longstanding
practices at USDA and the land grant
universities.) Note however, that;
although EPA uses a single definition of
small business across all regions, EPA's
representative farm analysis of small
business impacts does account for some
regional variation in costs and revenues.
Fourth, very few impacts are seeri in the
egg-laying sector, regardless of size.
Even if EPA had classified the majority
of egg-laying operations with less; than
1,000 AU as small businesses, this
would not have changed, the outcome of
the Agency's small business analysis in
any material way. Finally, even if EPA
were to classify all operations as small
businesses in areas outside the
contiguous 48 States (including Hawaii
and Alaska), this would only raise the
total number of small business by less
than 10 operations. See response to
comment DCN CAFO NODA 600053-5
regarding EPA's consideration of:
regional-specific definition of small
business for the regulated sectors;
Today, EPA is establishing this
alternative definition of "small entity"
for the egg-laying sector for purposes of
the regulatory flexibility analysis for
this rule.
D, Unfunded Mandates Reform Act
Title H of the Unfunded Mandates
Reform Act of 1995 (UMRA), Pubi L.
104-4, established requirements for
federal agencies to assess the effects of
their regulatory actions on State, Tribal
and local governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules '
with "federal mandates" that may result
in expenditures to State, Tribal and
local governments, in the aggregate, or
to the private sector, of $100 million or
more in any one year.
Before promulgating an EPA rule for
which a written statement is needed,
section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
most cost-effective or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are i
inconsistent with applicable law.
Moreover, section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective or least
burdensome alternative if the
Administrator publishes with the: final
rule an explanation why that alternative
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Federal Register/Vol. 68, No. 29 / Wednesday, February 12, 2003/Rules and Regulations 7257
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including Tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
regulatory requirements,
EPA has determined that this rule
contains a federal mandate that may
result in expenditures of $100 million or
more for State, local, and tribal
governments, in the aggregate, or the
private sector in any one year. EPA
revised the unfunded mandates analysis
for Stale costs based on comments
received. EPA expanded the categories
of costs and increased the unit costs and
hour burden while the final rule
significantly decreased the number of
potential permittees. Because the
revisions were largely offsetting, there is
little change in die overall burden
estimated (S8 million annually at
proposal and $9 million annually for the
final rule). Accordingly, EPA has
prepared under section 202 of the
UMRA a written statement, which is
summarized below. See section 5 of the
Economic Analysis for the complete
section 202 statement.
1. Private Costs
This statement provides quantitative
cost-benefit assessment of the federal
requirements imposed by today's final
rules. In large part, the private sector,
not other governments, will incur the
costs. EPA estimates total compliance
costs to industry of $326 million per
year (pre-tax, 2001 dollars). EPA
estimates that the monetized benefits of
the final regulations range from $204
million to S355 million annually.
Section VIII.C.l of this preamble
provides additional information on
EPA's analysis. The analysis is provided
in section 5 of the Economic Analysis
and other supporting information is
provided in the Benefits Analysis
supporting the final regulations. Both of
these support documents are available
in the administrative record for this
rulcmaking. A summary of these
analyses is provided in section's VII and
of today's preamble.
2. State Local and Tribal Government
Costs
Authorized States are expected to
incur costs to update their State NPDES
programs to conform to the final rule
and implement the revised standards
through issuing NPDES permits and
inspecting CAFOs to ensure
compliance. The total average annual
State administrative cost to implement
the permit program, approximately $9
million, will not exceed the thresholds
established by the UMRA. The analysis
underlying this cost estimate is in the
NPDES Technical Support Document
found in the rule record. EPA has
determined that this rule contains no
regulatory requirements that might
significantly or uniquely affect local or
Tribal governments. There are no local
or Tribal governments authorized to
implement the NPDES permit program
and the Agency is unaware of any local
or Tribal governments who are owners
or operators of CAFOs. Thus today's
rule is not subject to the requirements
of Section 203 of UMRA.
3. Funding and Technical Assistance
Available to CAFOs
The 2002 Farm Bill authorized cost-
share funding for six years (2002
through 2007) for EQIP. Funding starts
at $400 million in 2002 and continually
increases to $1.3 billion in the last year.
Sixty percent of this funding is to be
targeted to animal agriculture, including
large and small feedlots, as well as
pasture and grazing operations. An
operation is eligible for a total of up to
$450,000 over the six year time frame.
This funding is open to both CAFOs and
AFOs. Being defined as a CAFO does
not make you ineligible for this funding.
4. Funding Available to States
States may be able to use existing
sources of financial assistance to revise
and implement the final rule. Section
106 of the Clean Water Act authorizes
EPA to award grants to States, Tribes,
intertribal consortia, and interstate
agencies for administering programs for
the prevention, reduction, and
elimination of water pollution. These
grants may be used for various activities
to develop and carry out a water
pollution control program, including
permitting, monitoring, and
enforcement. Thus, State and Tribal
NPDES permit programs represent one
type of State program that can be funded
'by section 106 grants.
Key comments received on Unfunded
Mandates relate to the increased cost to
farmers and States and the need for
funds for CAFO compliance and State
permitting. In the discussion above,
EPA outlines the funding available to-
CAFO owners (EQIP) and to States
(CWA section 106 grants) to help meet
this rule's mandates.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled
"Federalism" (64 FR 43255, August 19,
1999), requires EPA to develop an
accountable process to ensure
"meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications." "Policies that have
federalism implications" is defined in
the Executive Order to include
regulations that have "substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government."
This rule does not have Federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and '•
responsibilities among the various
levels of government, as specified in
Executive Order 13132. EPA does not
consider an annual impact of
approximately $9 million on States a
substantial effect. In addition, EPA does
not expect this rule to have any impact
on local governments.
Further, the revised regulations would
not alter the basic State-federal scheme
established in the Clean Water Act
under which EPA authorizes States to
carry out the NPDES permitting
program. EPA expects the revised
regulations to have little effect on the
relationship between, or the distribution
of power and responsibilities ampng,
the federal and State governments.
Thus, Executive Order 13132 does not
apply to this rule.
In. the spirit of Executive Order 13132,
and consistent with EPA's policy'to •
promote communications between EPA
and State and local governments, EPA
specifically solicited comment on the
proposed rule from State and local
officials.
During public comment, EPA received
comments on its analysis required
under the Federalism Executive Order.
The comments were that the Agency
had underestimated the cost impacts of
the rule on States. In response to these
comments, EPA reanalyzed the impacts
on States.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
"Consultation and Coordination With
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Indian Tribal Governments" (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure "meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications." "Policies that have tribal
implications" is defined in the
Executive Order to include regulations
that have "substantial direct effects on
one or more Indian tribes, on the
relationship between the federal
government and Indian tribes, or on the
distribution of power and i
responsibilities between the federal
government and Indian tribes." ;
This final rule does not have Tribal
implications. It will not have substantial
direct effects on Tribal governments, on
the relationship between the federal
government and Indian Tribes, or on the
distribution of power and ;
responsibilities between the federal
government and Indian Tribes, as'
specified in Executive Order 13175.
First, no Tribal governments have been
authorized to issue NPDES permits.
Second, few CAFO operations are
located on Tribal lands. Accordingly,
the requirements of Executive Order
13175 do not apply to this rule.
Although Executive Order 13175 does
not apply to this rule, EPA has briefed
Tribal communities about this
rulemaking at the National
Environmental Justice Advisory
Committee meeting in Atlanta, Georgia
in June, 2000 and through notices in
Tribal publications. In addition, EPA
Regional Offices discussed this
rulemaking with the Tribes in their
regions.
During the public comment period,
the Agency received no comments from
Tribes or comments relating to tribal
issues.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks ;
Executive Order 13045 (62 FR 19885,
April 23, 1997) applies to any rale that:
(1) Is determined to be "economically
significant" as defined under Executive
Order 12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have a
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the ;
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency. ;
This final rule is subject to Executive
Order 13045 because it is an
economically regulatory action as
defined by Executive Order 12866, and
we believe that the environmental
health or safety risk addressed by this
action may have a disproportionate
effect on children. Accordingly, we have
evaluated the environmental health or
safety effects of increased nutrients,
pathogens, and metals in surface water
on children. The results of this
evaluation are contained in the
proposed Environmental Assessment,
which is part of the public record for
this, final rule.
EPA has established a maximum
contaminate level for nitrates in
drinking water at 10 micrograms/liter.
There is some evidence that infants
under the age of six months may be at
risk from methemoglobinemia caused by
nitrates in private drinking water wells
when ingesting water at nitrate levels
higher than 10 micrograms/liter. The
Agency has estimated the reduction in
the number of households that will be
exposed to drinking water with nitrate
levels above 10 micrograms/liter in
Chapter 8 of the Benefits Assessment
(noting that the Agency does not have
information on the number of
households exposed to nitrates that also
have infants). The Agency estimates that
there are approximately 13.5 million
households with drinking water wells in
counties with animal feeding
operations. Of these, the Agency
estimates that approximately 1.3 million
households are exposed to nitrate levels
above 10 micrograms/liter. The Agency
further estimates that approximately
112,000 households would have their
nitrate levels brought below 10
micrograms/liter under the
requirements of this final rule. The
Agency estimates that options more
stringent than these would provide only
small incremental changes in pollutant
loadings to groundwater (see the
Technical Development Document}. The
Agency therefore does not believe that
requirements more stringent than these
in the rule would provide meaningful
additional protection of children's
health risks from methemoglobinemia.
The Agency received no comments on
the impacts to children's health.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
The rule is, not a "significant energy
action" as defined in Executive Order
13211, Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use" (66 FR 28355, May
22, 2001) because it is not likely to have
a significant adverse effect on the
supply, distribution, or use of energy.
EPA has concluded that this rule is not
likely to have any adverse energy
effects. While there will be a minor
increase in energy use from increased
hauling of manure to offsite locations,
EPA has estimated the increased fuel
usage associated with transporting
manure, litter, and other process I
wastewaters off site is approximately
423,000 barrels annually for all CAFOs.
EPA does not believe that this will have
a significant impact on the energy
supply.
/. National Technology Transfer and
Advancement Act '•
As noted in the proposed rule, section
12(d) of the National Technology
Transfer and Advancement Act of 1995
(NTTAA), (Pub L. 104-113 section
12(d), 15 U.S.C. 272 note] directs ;EP A
to use voluntary consensus standards in
its regulatory activities unless to do so
would be inconsistent with applicable
law or otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus .
standards bodies. The NTTAA directs
EPA to provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards. ;
This rulemaking does involve the use
of technical standards. In this
rulemaking, EPA has developed
regulatory standards for controlling
pollutant discharges from permitted
CAFOs based on its expertise,
professional judgment, and the
extensive record developed, in part,
through the APA's notice and comment
process. While we identified the '
American National Standards for Good
Environmental Livestock Production
Practices, developed by the National
Pork Producers Council and certified by
ANSI as an American National Standard
on February 20, 2002 (GELPP 0001-
2002; 0002-2002; 0003-2002; 0004-
2002; 0005-2002), and a commenter has
identified ANSI/ASCE 7-98, a separate
voluntary consensus standard, as^being
potentially applicable, we have decided
not to use them in this rulemaking. The
use of these voluntary consensus
standard would have been impractical
because EPA's rule establishes a
regulatory framework in which
decisions as to what specific best1
management practices must be applied
at individual animal feeding operations
is generally left to the State in the
exercise of its authority to issue NPDES
permits. In issuing permits, States may
consider these ANSI-certified standards
and include, or not include, various
elements as they may deem appropriate.
It would not have been consistent with
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Federal. Register/Vol. 68, No. 29 / Wednesday, February 12, 2003/Rules and Regulations 7259
EPA's design for this rule to adopt these
ANSI-certified standards as national
minimum requirements for all States to
incorporate into all permits for covered
animal feeding operations. EPA received
a number of comments suggesting that
EPA should specifically include the
GELPPs and ANSI/ASCE 7-98 as
authorized alternative management
standards in the final CAFO rule. EPA
decided not to do so for the reasons
discussed above.
In any event, it is important to note
that the standards set out in this rule
may be better characterized as
representing regulatory decisions EPA is
directed to make by the Clean Water
Act, rather than as "technical
standards". Consistent with Section 6(c)
of OMB Circular A-119, EPA would not
bo obliged to consider the use of
voluntary consensus standards as
possible alternatives to the regulatory
standards being adopted.
It should be noted that the effluent
guideline rule (40 CFR 412) provides for
voluntary alternative performance
standards developed and applied in
NPDES permits on a site-specific basis.
CAFOs that voluntarily develop and
adopt such performance standards in
their NPDES permits may need to use
previously approved technical
standards to analyze for some or all of
the following pollutants: nitrogen,
phosphorus, BOD, and TSS. Consensus
standards have already been
promulgated in tables at 40 CFR 136.3
for measurement of all of these analytes.
Further, the rule specifically provides
that the determination of land
application rates for manure is to be
done in accordance with technical
standards established by the State. In
establishing such standards, States may
rely on standards already established by
USDA or other existing standards or
may develop new standards.
/. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
In implementing the requirements of
the Environmental Justice Executive
Order, EPA reviews the environmental
effects of major federal actions
significantly affecting the quality of the
human environment. For such actions,
EPA reviewers focus on the spatial
distribution of human health, social and
economic effects to ensure that agency
decisionmakers are aware of the extent
to which those impacts fall
disproportionately on covered
communities. EPA has determined that
this rulemaking is a major federal
action. However, the Agency does not
believe this rulemaking will have' a
disproportionate effect on minority or
low-income communities. The proposed
regulations will reduce the negative
effects of CAFO waste in the nation's
waters to benefit all of society,
including minority communities..
K. Congressional Review Act
The Congressional Review Act, 5.
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act (SBREFA) of 1996,
generally provides that before a rule
may take effect, the agency
promulgating the rule must submit a
rule report, which includes a copy of
the rule, to each House of the Congress
and to the Comptroller General of the
United States. EPA will submit a report
containing this rule and other required
information to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule can
not take affect until 60 days after it is
published in the Federal Register;. This
will be effective April 14, 2003. This
action is a "major rule" as defined by
5 U.S.C. 804(2).
BILLING CODE 6560-50-P
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726O Federal Register / Vol. 68, No. 29 / Wednesday, February 12, 20O3/ Rules and Regulations
APPENDIX - FORM 2B
Form Approved
OMB No; 2040-0250
Approval expires 12-15-05
FORM
2B
NPDES
EPA I.D. NUMBER (copyfmm Item 1 of Form 1)
! U.S. ENVIRONMENTAL PROTECTION AGENCY
APPLICATIONS FOR PERMIT TO DISCHARGE WASTEWATER
CONCENTRATED ANIMAL FEEDING OPERATIONS AND AQUATIC ANIMAL PRODUCTION
FACILITIES
E. GENERAL INFORMATION
Applying for. Individual Permit D Coverage Under General Permit D
A. TYPE OF BUSINESS
Q 1. Concentrated Animal Feeding
Operation (complete items B, C,
D, and Section II)
Q 2. Concentrated Aquatic Animal
Production Facility (complete
items B, C, and section III)
B. CONTACT INFORMATION
Owner/or
Operator Name:
Telephone: (
Address: .
Facsimile: (
City:
State: __ Zip Code:
C. FACILITY
OPERATION STATUS
Q 1. Existing Facility '
Q 2. Proposed Facility
A. FACILITY INFORMATION
Name:
Address:
City: '
County:
State:
Latitude:
Telephone: ( )
Facsimile: ( )
Zip Code:
Longitude:
If contract operation: Name of Integrator:
; Address of Integrator^
II. CONCENTRATED ANIMAL FEEDING OPERATION CHARACTERISTICS
A. TYPE AND NUMBER OF ANIMALS
I. TYPE
Q Mature Dairy Cows
Q Dairy Heifers
Q Veal Calves
Q Cattle (not dairy or
veal)
Q Swine (55 Ib. or over)
Q Swine (under 55 Ib.)
Q Horses
Q Sheep or Lambs
2. ANIMAL
NO. IN OPEN
CONFINEMENT
NO. HOUSED
UNDER ROOF
B. Manure, Litter and/or Wastewater Production and Use
a) How much manure, litter and wastewater is generated
annually by the facility? . tons
gallons
b) If land applied how many acres of land under the
control of the applicant are available for applying the
CAFOs manure/litter/wastewater?
acres
c) How many tons of manure or litter, or gallons of
waste-water produced by the CAFO will be
transferred annually to other persons? tons/gallons
(circle one)
EPAFonn35IO-2B(12-02) ;
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7261
Form Approved
OMB No. 2040-0250
Approval expires 12-15-05
Q Tutkcys
D Chickens (Broilers)
Q Chickens (Layers)
Q Ducks
D Other
Specify
3. TOTAL ANIMALS
C. D TOPOGRAPHIC MAP
D. TYPE OF CONTAINMENT, STORAGE AND CAPACITY
1. Type of Containment
Q Lagoon
Q Holding Pond
Q Evaporation Pond
Q Other: Specify
Total Capacity (in gallons)
2, Report the total number of acres contributing drainage:
3. Type of Storage
Q Anaerobic Lagoon
Q Storage Lagoon
Q Evaporation Pond
Q Aboveground Storage Tanks
Q Belowground Storage Tanks
Q Roofed Storage Shed
Concrete Pad
Q Impervious Soil Pad
Q Other. Specify
Total Number, of
Days
EPAForm 3510-28(12-02)
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7262 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
Form Approved
OMB No. 2040-0250
Approval expires 12-15-05
E. NUTRIENT MANAGEMENT PLAN '
A. Has a nutrient management plan been developed? D Yes D No
B. Is a nutrient management plan being implemented for the facility? D Yes O No
C. If no, when will the nutrient management plan be developed? Date:
D. The date of the last review or revision of the nutrient management plan. Date:
E. If not land applying, describe alternative use(s) of manure, litter and or wastewater:
F. LAND APPLICATION BEST MANAGEMENT PRACTICES
Please check any of the following best management practices that are being implemented at the facility to control runoff and
protect water quality: ;
Q Buffers Q Setbacks Q Conservation tillage Q Constructed wetlands Q Infiltration field Q Grass filter
Q Terrace
HI. CONCENTRATED (AQUATIC ANIMAL PRODUCTION FACILITY CHARACTERISTICS
A. For each outfall give the maximum daily flow, maximum
30- day flow, and the long-term average flow.
B. Indicate the total number of ponds, raceways, and similar
structures in your facility.
1. Outfall
No.
2. Flow (gallons per day)
I. Ponds
a.
Maximum.
Daily
b.
Maximum
30 Day
2. Raceways
3. Other
c.
Long Term
Average
C. Provide the name of the receiving water and the source of
water used by your facility.
1. Receiving Water
2. Water Source
D. List the species of fish or aquatic animals held and fed at your facility. For each species, give the total weight produced by
your facility per year in pounds of harvestable weight, and also give the maximum weight present at any one time.
1. Cold Water Species
2. Warm Water Species
a. Species
b. Harvestable Weight
(pounds)
a. Species
(1)
Total Yearly
(2)
Maximum
b. Harvestable Weight
(pounds)
(1)
Total Yearly
(2)
Maximum
E. Report the total pounds of food during the calendar month
of maximum feeding.
1. Month
2. Pounds of Food
EPA Form 3510-2B (12-02)
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7263
Form Approved
OMB No, 2040-0250
Approval expires 12-15-05
IV. CERTIFICATION
/ certify under penally of law that I have personally examined and am familiar with the information submitted in this application
and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, 1
believe that the information is true accurate and complete. 1 am aware that there are significant penalties for submittingfalse
information, including the possibility of fine and imprisonment.
A. Name and Official Title (print or type)
C. Signature
B. Phone No. ( )
D. Date Signed
EPA Foim 3510-28(12-02)
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7264 Federal Register /Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
Form Approved
OMB No. 2040-0250
Approval expires 12-15-05
INSTRUCTIONS
GENERAL
This form must be completed by all applicants who check "yes" to
Item II-B in Form 1. Not all animal feeding operations or fish farms are
required to obtain NPDES permits. Exclusions are based on size. See
the description of these statutory and regulatory exclusions in the General
Instructions that accompany Form 1.
For aquatic animal production facilities, the size cutoffs are based on
whether the species are warm water or cold water, on the production
weight per year in harvestable pounds, and on the amount of feeding in •
pounds of food (for cold water species). Also, facilities which discharge
less than 30 days per year,, or only during periods of excess runoff (/&r
warm water fish) are not required to have a permit.
Refer to the Form 1 instructions to determine where to file this form.
Iteral-A
See the note above and the Genera] Instructions which accompany Form
1 to be sure that your facility is a "concentrated animal feeding
operation" (CAFO).
Item 1-B
Use this space to give owner/operator contact information.
Item I-C ;
Check "proposed" if your facility is not now in operation or is expanding
to meet the definition of a CAFO in accordance with the information
found in the General Instructions that accompany Form 1.
Item I-D
Use this space to give a complete legal description of your facility's
location including name, address, and latitude/longitude. Also, the if a
contract grower, the name and address of the integrator.
Kern II
Supply all information in item II if you checked (1) in item I-A. i
Itemll-A
Give the maximum number of each type of animal in open confinement or
housed under roof (either partially or totally) which are held at your
facility for a total of 45 days or more in any 12 month period. Provide the
total number of animals confined at the facility. •
Item II-B
Provide the total amount of manure, litter and wastewater generated
annually by the facility. Identify if manure, litter and wastewater
generated by the facility is to be land applied and the number of acres,
under the control of the CAFO operator, suitable for land application. If
the answer to question 3 is yes, provide the estimated annual quantity of
manure, litter and wastewater that the applicant plans to transfer off-site.
Itemll-C
Check this box if you have submitted a topographic map of the
geographic area in which the CAFO is located showing the specific
location of the production area.
Federal regulations require the certification to be signed as follows:
A. For corporation, by a principal executive officer of at least the level
of vice president.
B. For a partnership or sole proprietorship, by a general partner or the
proprietor, respectively; or
C. For a municipality, State, Federal, or other public facility, by either
a principal executive officer or ranking elected official. '
Itemll-D
1. Provide information on the type of containment and the capacity of the
.containment structure (s).
2. The number of acres that are drained and collected in the containment
structure (s).
3. Identify the type of storage-for the manure, litter and/or wastewater.
Give the capacity of this storage in days and gallons or tons.
Htemll-E
Provide information concerning the status of the development and
implementation of a nutrient management plan for the facility. In those
cases where the nutrient management plan has not been completed,
provide an estimated date of development and implementation. If not
land applying, describe the alternative uses of the manure, litter and
wastewater (e.g., composting, pelletizing, energy generation, etc.).
Item II-F
Check any of the identified conservation practices that are being
implemented at the facility to control runoff and protect water quality.
Item III
Supply all information in Item III if you checked (2) in Item I-A.
Item III-A
Outfalls should be numbered to correspond with the map submitted in
Item XI of Form 1. Values given for flow should be representative of
your normal operation. The maximum daily flow is the maximum
measured flow occurring over a calendar day. The maximum 30-day
flow is die average of measured daily flow over the calendar month of
highest flow. The long-term average flow is the average of measure daily
flows over a calendar year.
Item III-B
Give the total number of discrete ponds or raceways in your facility.
Under "other," give a descriptive name of any structure which is not a
pond or a raceway but which results in discharge to waters of the United
States.
Item III-C
Use names for receiving water and source of water which correspond to
the map submitted in Item XI of Form 1.
Item III-D
The names offish species should be proper, common, or scientific names
as given in special Publication No, 6 of the American Fisheries Society.
"A List of Common and Scientific Names of Fishes from the United
States and Canada." The values given for total weight produced by your
facility per year and the maximum weight present at any one time should
be representative of your normal operation.
Item III-E
The value given for maximum monthly pounds of food should be
representative of your normal operation.
Item IV
The Clean Water Act provides for severe penalties for submitting false
information on this application form.
Section 309(C)(2) of the Clean Water Act provides that "Any person
who knowingly makes any false statement, representation, or certification
in any application...shall upon conviction, be punished by a fine of no
more than 510,000 or by imprisonment for not more than six months or
both."
Paper Reduction Act Notice
The Public reporting burden for this collection of information
estimated to average 4 hours per response. The estimate includes
time for reviewing instructions, searching existing data sources,
gathering and maintaining the needed data, and completing and
reviewing the collection of information. Send comments regarding
the burden estimate or any other aspect of this collection of
information to the chief, Information Policy Branch (PM-223),
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue,
N.W., Washington, D.C. 20460, and the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington,
D.C. 20503, marked Attention: Desk Officer for EPA.
EPA Form 3510-2B (12-02)
BILLING CODE 6560-SO-C
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7265
List of Subjects
40 CFR Part 9
Environmental protection, Reporting
and recordkeeping requirements.
40 CFR Parts 122 and 123
Administrative practice and
procedure, Hazardous substances,
Reporting and recordkeeping
requirements, Water pollution control.
40 CFR Part 412
Feedlots, Livestock, Waste treatment
and disposal, Water pollution control.
Dated: December 15,2002.
Christina Todd Whitman,
Administrator.
For the reasons set out in the
preamble title 40, chapter I of the Code
of Federal Regulations is amended as
follows:
PART 9—OMB APPROVALS UNDER
THE PAPERWORK REDUCTION ACT
1. The authority for part 9 continues
to read as follows:
Authority: 7 U.S.C. 135 etseq., 136-136y;
IS U.S.C. 2001, 2003, 2005, 2006, 2601-2671;
21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 etseq., 1311,1313d, 1314,1318,
1321,1326,1330,1342,1344.1345(d) and
(t»), 1361; E.0.11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241,
242b, 243, 246,300f, 300g-l, 300g-2, 300g-
3, 300g-4, 300g-5, 300g-6, 300J-1, 300J-2,
300J-3, 300J-4, 300J-9,1857 etseq., 6901-
0892k, 7401-7671q, 7542, 9601-9657,11023,
11048.
2. In § 9.1 the table is amended by
adding entries in numerical order under
tho indicated heading and a new
heading and entries to read as follows:
§ 9.1 OMB approvals under the Paperwork
Reduction Act.
40 CFR citation
OMB control
No.
EPA Administered Permit Programs: The
National Pollutant Discharge Elimination
System
122.21(0 2040-0250
122.230) • - 2040-0250
*****
122<28(b) 2040-0250
*****
122.42(e) 2040-0250
*****
Feedlots Point Source Category
412.31-412.37 2040-0250
412.41-412.47 2040-0250
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 etseq.
2. Amend § 122.21 by adding a
sentence to the end of paragraph (a)(l)
and revising paragraph (i)(l) to read as
follows:
§ 122.21 Application for a permit
(applicable to State programs, see § 123.25).
(a) * * *
(1) * * * All concentrated animal
feeding operations have a duty to seek
coverage under an NPDES permit, as
described in § 122.23(d).
* * * * *
(i)* * *
(1) For concentrated animal feeding
operations:
(i) The name of the owner or operator;
(ii) The facility location and mailing
addresses;
(iii) Latitude and longitude of the
production area (entrance to production
area);
(iv) A topographic map of the
geographic area in which the CAFO is
located showing the specific location of
the production area, in lieu of the
requirements of paragraph (f)(7) of this
section;
(v) Specific information about the
number and type of animals, whether in'
open confinement or housed under roof
(beef cattle, broilers, layers, swine
weighing 55 pounds or more, swine
weighing less than 55 pounds, mature
dairy cows, dairy heifers, veal calves,
sheep and lambs, horses, ducks, turkeys,
other);
(vi) The type of containment and
storage (anaerobic lagoon, roofed storage
shed, storage ponds, underfloor pits,
above ground storage tanks, below
ground storage tanks, concrete pad,
impervious soil pad, other) and total
capacity for manure, litter, and process
wastewater storage(tons/gallons);
(vii) The total number of acres under
control of the applicant available for
land application of manure, litter, or
process wastewater;
(viii) Estimated amounts of manure,
litter, and process wastewater generated
per year (tons/gallons);
(ix) Estimated amounts of manure,
litter and process wastewater transferred
to other persons per year (tons/gallons);
and
(x) For CAFOs that must seek
coverage under a permit after December
31, 2006, certification that a nutrient
management plan has been completed
and will be implemented upon the date
of permit coverage.
* * * * *
3. Section 122.23 is revised to read as
follows:
§ 122.23 Concentrated animal feeding
operations (applicable to State NPDES
programs, see § 123.25).
(a) Permit requirement for CAFOs.
Concentrated animal feeding operations,
as defined in paragraph (b) of this,
section, are point sources that require
NPDES permits for discharges or i
potential discharges. Once an operation
is defined as a CAFO, the NPDES
requirements for CAFOs apply with
respect to all animals in confinement at
the operation and all manure, litter and
process wastewater generated by those
animals or the production of those
animals, regardless of the type of
animal.
(b) Definitions applicable to this
section:
(1) Animal feeding operation ("AFO")
means a lot or facility (other than;an
aquatic animal production facility)
where the following conditions are met:
(i) Animals (other than aquatic
animals) have been, are, or will be
stabled or confined and fed or
maintained for a total of 45 days or more
in any 12-month period, and
(ii) Crops, vegetation, forage growth,
or post-harvest residues are not
sustained in the normal growing season
over any portion of the lot or facility.
(2) Concentrated animal feeding
operation ("CAFO") means an AFO that
is defined as a Large CAFO or as a
Medium CAFO by the terms of this
paragraph, or that is designated as a
CAFO in accordance with paragraph (c)
of this section. Two or more AFOs
under common ownership are
considered to be a single AFO for the
purposes of determining the number of
animals at an operation, if they adjoin
each other or if they use a common area
or system for the disposed of wastes.
(3) The term land application area
means land under the control of an AFO
owner or operator, whether it is owned,
rented, or leased, to which manure,
litter or process wastewater from the
production area is or may be applied.
(4) Large concentrated animal feeding
operation ("Large CAFO"). An AFO is
denned as a Large CAFO if it stables or
confines as many as or more than; the
numbers of animals specified in any of
the following categories:
(i) 700 mature dairy cows, whether
milked or dry;
(ii) 1,000 veal calves;
(iii) 1,000 cattle other than mature
dairy cows or veal calves. Cattle
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7266 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
includes but is not limited to heifers,
steers, bulls and cow/calf pairs;
(iv) 2,500 swine each weighing 55
pounds or more;
(v) 10,000 swine each weighingless
than 55 pounds;
(vi) 500 horses;
(vii) 10,000 sheep or lambs;
(viii) 55,000 turkeys;
(ix) 30,000 laying hens or broilers, if
the AFO uses a liquid manure handling
system;
(x) 125,000 chickens (other than
laying hens), if the AFO uses other than
a liquid manure handling system;
(xi) 82,000 laying hens, if the AFO
uses other than a liquid manure
handling system; ,
(xii) 30,000 ducks (if the AFO uses
other than a liquid manure handling
system); or
(xiii) 5,000 ducks (if the AFO uses a
liquid manure handling system).
(5) The term manure is defined itp
include manure, bedding, compost and
raw materials or other materials
commingled with manure or set aside
for disposal.
(6) Medium concentrated animal
feeding operation ("Medium CAFO").
The term Medium CAFO includes any
AFO with the type and number of
animals that fall within any of the
ranges listed in paragraph (b)(6)(i) of
this section and which has been defined
or designated as a CAFQ. An AFO is
defined as a Medium CAFO if:
(i) The type and number of animals
that it stables or confines falls within
any of the following ranges:
(A) 200 to 699 mature dairy cows,
whether milked or dry;
(B) 300 to 999 veal calves; I
(C) 300 to 999 cattle other than mature
dairy cows or veal calves. Cattle
includes but is not limited to heifers,
steers, bulls and cow/calf pairs;
(D) 750 to 2,499 swine each weighing
55 pounds or more; i
(E) 3,000 to 9,999 swine each «
weighing less than 55 pounds;
(F) 150 to 499 horses; ;
(G) 3,000 to 9,999 sheep or lambs;
(H) 16,500 to 54,999 turkeys;
(I) 9,000 to 29,999 laying hens or
broilers, if the AFO uses a liquid
manure handling system;
(I) 37,500 to 124,999 chickens (other
tiian laying hens), if the AFO uses other
than a liquid manure handling system;
(K) 25,000 to 81,999 laying hens, if
the AFO uses other than a liquid
manure handling system;
(L) 10,000 to 29,99a ducks (if the AFO
uses other than a liquid manure
handling system); or
(M) 1,500 to 4,999 ducks (if the AFO
uses a liquid manure handling system);
and
(ii) Either one of the following
conditions are met:
(A) Pollutants are discharged into
waters of the'United States through a
man-made ditch, flushing system, or
other similar man-made device; or
(B) Pollutants are discharged directly
into waters of the United States which
originate outside of and pass over,
across, or through the facility or
otherwise come into direct contact with
the animals confined in the operation.
(7) Process wastewater means water
directly or indirectly used in the
operation of the AFO for any or all of
the following: spillage or overflow from
animal or poultry watering systems;
washing, cleaning, or flushing pens,
barns, manure pits, or other AFO
facilities; direct contact swimming,
washing, or spray cooling of animals; or
dust control. Process wastewater also
includes any water which comes into •
contact with any raw materials,
products, or byproducts including
manure, litter, feed, milk, eggs or
bedding.
(8) Production area means that part of
an AFO that includes the animal
confinement area, the manure storage
area, the raw materials storage area, and
the waste containment areas. The
animal confinement area includes but is
not limited to open lots, housed lots,
feedlots, confinement houses, stall
barns, free stall barns, milkrooms,
milking centers, cowyards, barnyards,
medication pens, walkers, animal
walkways, and stables. The manure
storage area includes but is not limited
to lagoons, runoff ponds, storage sheds,
stockpiles, under house or pit storages,
liquid impoundments, static piles, arid
composting piles. The raw materials
storage area includes but is not limited
to feed silos, silage bunkers, and
bedding materials. The waste
containment area includes but is not
limited to settling basins, and areas
within berms and diversions which
separate uncontaminated storm water.
Also included in the definition of
production area is any egg washing or
egg processing facility, and any area
used in the storage, handling, treatment,
or disposal of mortalities.
(9) Small Concentrated animal feeding
operation ("Small CAFO"). An AFO
that is designated as a CAFO and is not
a Medium CAFO.
(c) How may an AFO be designated as
a CAFO? The appropriate authority (i.e.,
State Director or Regional
Administrator, or both, as specified in
paragraph (c)(l) of this section) may
designate any AFO as a CAFO upon
determining that it is a significant
contributor of pollutants to waters of the
United States.
(1) Who may designate?
(i) Approved States. In States that are
approved or authorized by EPA under
Part 123, CAFO designations may be
made by the State Director. The
Regional Administrator may also
designate CAFOs in approved States,
but only where the Regional
Administrator has determined that one
or more pollutants in the AFO's ;
discharge contributes to an impairment
in a downstream or adjacent State or
Indian country water that is impaired
for that pollutant.
(ii) States with no approved program.
The Regional Administrator may ••
designate CAFOs in States that do not
have an approved program and in
Indian country where no entity has
expressly demonstrated authority and
has been expressly authorized by EPA to
implement the NPDES program.
(2) In making this designation, the
State Director or the Regional
Administrator shall consider the
following factors:
(i) The size of the AFO and the:
amount of wastes reaching waters of the
United States;
(ii) The location of the AFO relative
to waters of the United States;
(iii) The means of conveyance of
animal wastes and process waste waters
into waters of the United States;
(iv) The slope, vegetation, rainfall,
and other factors affecting the likelihood
or frequency of discharge of animal
wastes manure and process waste
waters into waters of the United States:
and
(v) Other relevant factors.
(3J No AFO shall be designated under
this paragraph unless the State Director
or the Regional Administrator has
conducted an on-site inspection of the
operation and determined that the
operation should and could be regulated
under the permit program. In addition,
no AFO with numbers of animals below
those established in paragraph (b)(6) of
this section maybe designated as-a
CAFO unless:
(i) Pollutants are discharged into
waters of the United States through a
manmade ditch, flushing system, .or
other similar manmade device; or
(ii) Pollutants are discharged directly
into waters of the United States which
originate outside of the facility arid pass
over, across, or through the facility or
otherwise come into direct contact with
the animals confined in the operation.
(d) Who must seek coverage under an
NPDES permit?
(1) All CAFO owners or operators
must apply for a permit. All CAFO
owners or operators must seek coverage
under an NPDES permit, except as
provided in paragraph (d)(2) of this
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7267
section. Specifically, the CAFO owner
or operator must either apply for an
individual NPDES permit or submit a
notice of intent for coverage under an
NPDES general permit. If the Director
has not made a general permit available
to the CAFO, the CAFO owner or
operator must submit an application for
an individual permit to the Director.
(2) Exception. An owner or operator
of a Large CAFO does not need to seek
coverage under an NPDES permit
otherwise required by this section once
the owner or operator has received from
the Director notification of a
determination under paragraph (f) of
this section that the CAFO has "no
potential to discharge" manure, litter or
process wastewater.
(3) Information to submit with permit
application. A permit application for an
individual permit must include the
information specified in § 122.21. A
notice of intent for a general permit
must include the information specified
in §§122.21 and 122.28.
(e) Land application discharges from
a CAFO are subject to NPDES
requirements. The discharge of manure,
litter or process wastewater to waters of
the United States from a CAFO as a
result of the application of that manure,
litter or process wastewater by the
CAFO to land areas under its control is
a discharge from that CAFO subject to
NPDES permit requirements, except
where it is an agricultural storm water
discharge as provided in 33 U.S.C.
1362(14). For purposes of this
paragraph, where the manure, litter or
process wastewater has been applied in
accordance with site specific nutrient
management practices that ensure
appropriate agricultural utilization of
the nutrients in the manure, litter or
process wastewater, as specified in
§ 122.42(e)(l)(vi)-(ix), a precipitation-
related discharge of manure, litter or
process wastewater from land areas
under the control of a CAFO is an
agricultural stormwater discharge.
(f) "No potential to discharge"
determinations for Large CAFOs.
(1) Determination by the Director. The
Director, upon request, may make a
case-specific determination that a Large
CAFO has "no potential to discharge"
pollutants to waters of the United
States. In making this determination, the
Director must consider the potential for
discharges from both the production
area and any land application areas. The
Director must also consider any record
of prior discharges by the CAFO. In no
case may the CAFO he determined to
have "no potential to discharge" if it has
had a discharge within the 5 years prior
to the date of the request submitted
under paragraph (f)(2) of this section.
For purposes of this section, the term
"no potential to discharge" means that
there is no potential for any CAFO
manure, litter or process wastewater to
be added to waters of the United States
under any circumstance or climatic
condition. A determination that there is
"no potential to discharge" for purposes
of this section only relates to discharges
of manure, litter and process wastewater
covered by this section.
(2) Information to support a "no
potential to discharge" request. In
requesting a determination of "no
potential to discharge," the CAFO
owner or operator must submit any
information that would support such a
determination, within the time frame
provided by the Director and in
accordance with paragraphs (g) and (h)
of this section. Such information must
include all of the information specified
hi § 122.21(fJ and (i)(l)(i) through (ix).
The Director has discretion to require
additional information to supplement
the request, and may also gather
additional information through on-site
inspection of the CAFO.
(3) Process for making a "no potential
to discharge" determination. Before
making a final decision to grant a "no
potential to discharge" determination,
the Director must issue a notice to the
public stating that a "no potential to
discharge" request has been received. .
This notice must be accompanied by a
fact sheet which includes, when
applicable: a brief description of the
type of facility or activity which is the
subject of the "no potential to
discharge" determination; a brief
summary of the factual basis, upon
which the request is based, for granting
the "no potential to discharge"
determination; and a description of the
procedures for reaching a final decision
on the "no potential to discharge"
determination. The Director must base
the decision to grant a "no potential to
discharge" determination on the
administrative record, which includes
all information submitted in support of
a "no potential to discharge"
determination and any other supporting
data gathered by the permitting
authority. The Director must notify any
CAFO seeking a "no potential to
discharge" determination of its final
determination within 90 days of
receiving the request.
(4) What is the deadline for requesting
a "no potential to discharge"
determination? The owner or operator
must request a "no potential to
discharge" determination by the
applicable permit application date
specified in paragraph (g) of this
section. If the Director's final decision is
to deny the "no potential to discharge"
determination, the owner or operator
must seek coverage under a permit
within 30 days after the denial. ;
(5) The "no potential to discharge"
determination does not relieve the
CAFO from the consequences ofqn
actual discharge. Any unpermitted
CAFO that discharges pollutants into
the waters of the United States is in
violation of the Clean Water Act even if
it has received a "no potential to
discharge" determination from the
Director. Any CAFO that has received a
determination of "no potential to
discharge," but who anticipates changes
in circumstances that could create the
potential for a discharge, should contact
the Director, and apply for and obtain
permit authorization prior to the change
of circumstances.
(6) The Director retains authority to
require a permit. Where the Director has
issued a determination of "no potential
to discharge," the Director retains the
authority to subsequendy require
NPDES permit coverage if
circumstances at the facility change, if
new information becomes available, or
if there is another reason for the Director
to determine that the CAFO has a:
potential to discharge.
(g) When must a CAFO seek coverage
under an NPDES permit?
(1) Operations defined as CAFOs prior
to April 14, 2003. For operations that are
defined as CAFOs under regulations
that are in effect prior to April 14) 2003,
the owner or operator must have or seek
to obtain coverage under an NPDES
permit as of April 14, 2003, and comply
with all applicable NPDES
requirements, including the duty to
maintain permit coverage in accordance
with paragraph (h) of this section;
(2) Operations defined as CAFOs as of
April 14, 2003, who were not defined as
CAFOs prior to that date. For all
CAFOs, the owner or operator of the
CAFO must seek to obtain coverage
under an NPDES permit by a date
specified by the Director, but no later
than February 13, 2006.
(3) Operations that become defined as
CAFOs after April 14, 2003, but which
are not new sources. For newly ,
constructed AFOs and AFOs thatimake
changes to their operations that result in
becoming defined as CAFOs for the first
time, after April 14, 2003, but are;not
new sources, the owner or operator
must seek to obtain coverage under an
NPDES permit, as follows:
(i) For newly constructed operations
not subject to effluent limitations
guidelines, 180 days prior to the time
CAFO commences operation; or
(ii) For other operations (e.g.,
resulting from an increase in the ;
number of animals), as soon as possible,
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7268 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
but no later than 90 days after becoming
defined as a CAFO; except that
(iii) If an operational change that
makes the operation a CAFO would not
have made it a CAFO prior to April 14,
2003, the operation has until April 13,
2006, or 90 days after becoming defined
as a CAFO, whichever is later.
(4) New sources. New sources must-
seek to obtain coverage under a permit
at least 180 days prior to the time that
the CAFO commences operation.
(5) Operations that are designated as
CAFOs. For operations designated as a
CAFO in accordance with paragraph (c)
of this section, the owner or operator
must seek to obtain coverage under a
permit no later than 90 days after
receiving notice of the designation.
(6) No potential to discharge. •
Notwithstanding any other provision of
this section, a CAFO that has received
a "no potential to discharge"
determination in accordance with
paragraph (f) of this section is not
required to seek coverage under an
NPDES permit that would otherwise be
required by this section. If
circumstances materially change at a
CAFO that has received a NPTD
determination, such that the CAFO has
a potential for a discharge, the CAFO
has a duty to immediately notify the
Director, and seek coverage under an
NPDES permit within 30 days after the
change in circumstances.
(h) Duty to Maintain Permit Coverage.
No later than 180 days before the
expiration of the permit, the permittee
must submit an application to renew its
permit, in accordance with § 122.21(g).
However, the permittee need not
continue to seek continued permit
coverage or reapply for a permit if:
(1) The facility has ceased operation
or is no longer a CAFO; and
(2] The permittee has demonstrated to
the satisfaction of the Director that there
is no remaining potential for a discharge
of manure, litter or associated process
wastewater that was generated while the
operation was a CAFO, other than
agricultural stormwater from land
application areas.
4. Section 122.28 is amended by
adding one sentence to the end of
paragraph (b)(2)(ii) to read as follows:
§ 122.28 General permits (applicable to
State NPDES programs, see §123.25).
*****
(b) * * *
(2) * * *
(ii) * * * Notices of intent for coverage
under a general permit for concentrated
animal feeding operations must include
the information specified in
§ 122.21 (i)(l), including a topographic
map.
*****
5. Section 122.42 is amended by
adding paragraph (e) to read as follows:
§ 122.42 Additional conditions applicable
to specified categories of NPDES permits
(applicable to State NPDES programs, see
§123.25).
***,**
(e) Concentrated animal feeding
operations (CAFOs). Any permit issued
to a" CAFO must include:
(1) Requirements to develop and
implement a nutrient management plan.
At a minimum, a nutrient management
plan must include best management
practices and procedures necessary to
implement applicable effluent
limitations and standards. Permitted
CAFOs must have their nutrient
management plans developed and
implemented by December 31, 2006.
CAFOs that seek to obtain coverage
under a permit after December 31, 2006
must have a nutrient management plan
developed and implemented upon the
date of permit coverage. The nutrient
management plan must, to the extent
applicable:
(i) Ensure adequate storage of manure,
litter, and process wastewater, including
procedures to ensure proper operation
and maintenance of the storage
. facilities;
(ii) Ensure proper management of
mortalities (i.e., dead animals) to ensure
that they are not disposed of in a liquid
manure, storm water, or process
wastewater storage or treatment system
that is not specifically designed to treat
animal mortalities;
(iii) Ensure that clean water is
diverted, as appropriate, from the
production area;
(iv) Prevent direct contact of confined
animals with waters of the United
States;
(v) Ensure that chemicals and other
contaminants handled on-site are not
disposed of in any manure, litter,
process wastewater, or storm water
storage or treatment system unless
specifically designed to treat such
chemicals and other contaminants;
(vi) Identify appropriate site specific
conservation practices to be
implemented, including as appropriate
buffers or equivalent practices, to
control runoff of pollutants to waters of
the United States;
(vii) Identify protocols for appropriate
testing of manure, litter, process
wastewater, and soil;
(viii) Establish protocols to land apply
manure, litter or process wastewater in
accordance with site specific nutrient
management practices that-ensure
appropriate agricultural utilization of
the nutrients in the manure, litter or
process wastewater; and
(ix) Identify specific records that will
be maintained to document the :
implementation and management of the
minimum elements described in :
paragraphs (e)(l)(i) through (e)(l)(viii) of
this section.
(2) Recordkeeping requirements.
(i) The permittee must create,
maintain for five years, and make;
available to the Director, upon request,
the following records:
(A) All applicable records identified
pursuant paragraph (e)(l)(ix) of this
section;
(B) In addition, all CAFOs subject to
40 CFR part 412 must comply with
record keeping requirements as
specified in §412.37(b) and (c) and
§412.47(b)and(c).
(ii) A copy of the CAFO's site-specific
nutrient management plan must be
maintained on site and made available
to the Director upon request.
(3) Requirements relating to transfer
of manure or process wastewater co
other persons. Prior to transferring
manure, litter or process wastewater to
other persons, Large CAFOs must
provide the recipient of the manure,
litter or process wastewater with the
most current nutrient analysis. The
analysis, provided must be consistent
with the requirements of 40 CFR part
412. Large CAFOs must retain for five
years records of the date, recipient name
and address, and approximate amount
of manure, litter or process wastewater
transferred to another person.
. (4) Annual reporting requirements for
CAFOs. The permittee must submit an
annual report to the Director. The
annual report must include:
(i) The number and type of animals,
whether in open confinement or housed
under roof (beef cattle, broilers, layers, '
swine weighing 55 pounds or more,
swine weighing less than 55 pounds,
mature dairy cows, dairy heifers, .veal
calves, sheep and lambs, horses, ducks,
turkeys, other);
(ii) Estimated amount of total manure,
litter and process wastewater generated
by the CAFO in the previous 12 months
(tons/gallons);
(iii) Estimated amount of total
manure, litter and process wastewater
transferred to other person by the'CAFO
in the previous 12 months (tons/ ,
gallons);
(iv) Total number of acres for land
application covered by the nutrient
management plan developed in '
accordance with paragraph (e)(l) of this
section; [
(v) Total number of acres under
control of the CAFO that were used for
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7269
land application of manure, litter and
process wastewater in the previous 12
months;
(vi) Summary of all manure, litter and
process wastewater discharges from the
production area that have occurred in
the previous 12 months, including date,
time, and approximate volume; and
(vii) A statement indicating whether
tho current version of the CAFO's
nutrient management plan was
developed or approved by a certified
nutrient management planner.
Appendix B to Part 122 [Removed and
Reserved]
6. Remove and reserve Appendix B to
part 122.
PART 123—STATE PROGRAM
REQUIREMENTS
1. The authority citation for part 123
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 etseq.
2. Add a new § 123.36 to read as
follows:
§ 123.36 Establishment of technical
standards for concentrated animal feeding
operations.
If the State has not already established
technical standards for nutrient
management that are consistent with 40
CFR 412.4(c)(2), the Director shall
establish such standards by the date
specified in § 123.62(e).
Part 412 is revised to read as follows:
PART 412—CONCENTRATED ANIMAL
FEEDING OPERATIONS (CAFO) POINT
SOURCE CATEGORY
See.
412.1 General applicability.
412.2 General definitions.
412,3 General protieatment standards.
412.4 Best management practices (BMPs)
for land application of manure.
Subpart A—Horses and Sheep
412.10 Applicability.
412.11 (Reserved]
412.12 Effluent limitations attainable by the
application of the best practicable
control technology currently available
(BPT).
412.13 Effluent limitations attainable by the
application of the best available control
technology economically achievable
(BAT).
412.14 [Reserved]
412.15 Now source performance standards
(NSPS).
Subpart B—Ducks
412.20 Applicability.
412.21 Special definitions.
412.22 Effluent limitations attainable by the
application of the best practicable
control technology currently available
(BPT).
412.23-412.24 [Reserved]
412.25 New source performance standards
(NSPS).
412.26 Pretreatment standards for new
sources (PSNS).
Subpart C—Dairy Cows and Cattle Other
Than Veal Calves
412.30 Applicability.
412.31 Specialized definitions.
•412.32 Effluent'limitations attainable by the
application of the best practicable
control technology currently available
(BPT).
412:33 Effluent limitations attainable by the
application of the best control
technology for conventional pollutants
(BCT).
412.34 [Reserved]
412.35 New source performance standards
(NSPS).
412-.36 [Reserved]
412.37 Additional measures.
Subpart D—Swine, Poultry, and Veal Calves
412.40 Applicability.
412.41-412.42 [Reserved]
412.43 Effluent limitations attainable by the
application of the best practicable
control technology currently available
(BPT).
412.44 Effluent limitations attainable by the
application of the best control
technology for conventional pollutants
(BCT).
412.45 Effluent limitations attainable by the
application of the best available control
technology economically achievable
(BAT).
412.46 New source performance standards
(NSPS).
412.47 Additional measures.
Authority: 33 U.S.C. 1311, 1314,1316,
1317,1318,1342,1361.
§412.1 General applicability.
This part applies to manure, litter,
and/or process wastewater discharges
resulting from concentrated animal
feeding operations (CAFOs).
Manufacturing and/or agricultural
activities which may be subject to this
part are generally reported under one or
more of the following Standard
Industrial Classification (SIC) codes: SIC
0211, SIC 0213, SIC 0214, SIC 0241, SIC
0251, SIC 0252, SIC 0253, SIC 0254, SIC
0259, or SIC 0272 (1987 SIC Manual).
§412.2 General definitions.
As used in this part:
(a) The general definitions and
abbreviations at 40 CFR part 401 apply.
(b) Animal Feeding Operation (AFO)
and Concentrated Animal Feeding
Operation (CAFO) are defined at 40 CFR
122.23.
(c) Fecal coliform means the bacterial
count (Parameter 1) at 40 CFR 136.3 in
Table 1A, which also cites the approved
methods of analysis.
(d) Process wastewater means water
directly or indirectly used in the
operation of the CAFO for any or all of
the following: spillage or overflow from
animal or poultry watering systems;
washing, cleaning, or flushing pens,
barns, manure pits, or other CAFO
facilities; direct contact swimming,
washing, or spray cooling of animals; or
dust control. Process wastewater &lso
includes any water which comes into
contact with any raw materials,
products, or byproducts including
manure-, litter, feed, milk, eggs, or
bedding.
(e) Land application area means land
under the control of an AFO owner or
operator, whether it is owned, rented, or
leased, to which manure, litter, or
process wastewater from the production
area is or may be applied.
(f) New source is defined at 40 CFR
122.2. New source criteria are defined at
40 CFR 122.29(b).
(g) Overflow means the discharge of
manure or process wastewater resulting
from the filling of wastewater or manure
storage structures beyond the point at
which no more manure, process
wastewater, or storm water can be
contained by the structure.
(h) Production area means that.part of
an AFO that includes the animal:
confinement area, the manure storage
area, the raw materials storage area, and
the waste containment areas. The.
animal confinement area includes but is
not limited to open lots, housed lots,
feedlots, confinement houses, stall
barns, free stall barns, milkrooms,
milking centers, cowyards, barnyards,
medication pens, walkers, animal
walkways, and stables. The manure
storage area includes but is not limited
to lagoons, runoff ponds, storage sheds,
stockpiles, under house or pit storages,
liquid impoundments, static piles, and
composting piles. The raw materials
storage area includes but is not limited
to feed silos, silage bunkers, and
bedding materials. The waste '
containment area includes but is not
limited to settling basins, and areas
within benns and diversions which
separate uncontaminated storm water.
Also included in the definition of
production area is any egg washing or
egg processing facility, and any area
used in the storage, handling, treatment,
or disposal of mortalities.
(i) Ten (lO)-year, 24-hour rainfall
event, 25-year, 24-hour rainfall event,
and 100-year, 24-hour rainfall event
mean precipitation events with a
probable recurrence interval of once in
ten years, or twenty five years, or;one
hundred years, respectively, as defined
by the National Weather Service in
Technical Paper No. 40, "Rainfall
Frequency Atlas of the United States,"
May, 1961, or equivalent regional or
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7270 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations
State rainfall probability information
developed from this source.
(j) Analytical methods. The
parameters that are regulated or ;
referenced in this part and listed with
approved methods of analysis in Table
IB at 40 CFR 136.3 are defined as
follows:
(1) Ammonia (as N) means ammonia
reported as nitrogen.
(2) BODS means 5-day biochemical
oxygen demand.
(3) Nitrate (as N) means nitrate
reported as nitrogen. i
(4) Total dissolved solids means
nonfilterable residue.
(k) The parameters that are regulated
or referenced in this part and listed with
approved methods of analysis in Table
1A at 40 CFR 136.3 are defined as
follows:
(1) Fecal coliform means fecal
coliform bacteria. r
(2) Total coliform means all coliform
bacteria.
§ 412.3 General pretreatment standards.
Any source subject to this part that
introduces process wastewater
pollutants into a publicly owned
treatment works (POTW) must comply
with 40 CFR part 403.
§412.4 Best Management Practices
(BMPs) for Land Application of Manure,
Litter, and Process Wastewater.
(a) Applicability. This section applies
to any CAFO subject to subpart C of this
part (Dairy and Beef Cattle other than
Veal Calves) or subpart D of thisipart
(Swine, Poultry, and Veal Calves):
(b) Specialized definitions.
(1) Setback means a specified distance
from surface waters or potential
conduits to surface waters where
manure, litter, and process wastewater
may not be land applied. Examples of
conduits to surface waters include but
are not limited to: Open tile line intake
structures, sinkholes, and agricultural
well heads.
(2) Vegetated buffer means a narrow,
permanent strip of dense perennial
vegetation established parallel to the
contours of and perpendicular to the
dominant slope of the field for the
purposes of slowing water runoff,
enhancing water infiltration, and
minimizing the risk of any potential
nutrients,or pollutants from leaving the
field and reaching surface waters.
(3) Multi-year phosphorus application
means phosphorus applied to a field in
excess of the crop needs for that year.
In multi-year phosphorus applications,
no additional manure, litter, or process
wastewater is. applied to the same land
in subsequent years until the applied
phosphorus has been removed from the
field via harvest and crop removal.
(c) Requirement to develop and
implement best management practices.
Each CAFO subject to this section that
land applies manure, litter, or process
wastewater, must do so in accordance
with the following practices:
(1) Nutrient Management Plan. The
CAFO must develop and implement a
nutrient management plan that
incorporates the requirements of
paragraphs (c)(2) through (c)(5) of this
section based on a field-specific
assessment of the potential for nitrogen
and phosphorus transport from the field
and that addresses the form, source,
amount, timing, and method of
application of nutrients on each field to
achieve realistic production goals, while
minimizing nitrogen and phosphorus
movement to surface waters.
(2) Determination of application rates.
Application, rates for manure, litter, and
other process wastewater applied to
land under the ownership or operational
control of the CAFO must minimize
phosphorus and nitrogen transport from
the field to surface waters in compliance
with the technical standards for nutrient
management established by the Director.
Such technical standards for nutrient
management shall:
(i) Include a field-specific assessment
of the potential for nitrogen and
phosphorus transport from the field to
surface waters, and address the form,
source, amount, timing, and method of
application of nutrients on each field to
achieve realistic production goals, while
minimizing nitrogen and phosphorus
movement to surface waters; and
(ii) Include appropriate flexibilities
for any CAFO to implement nutrient
management practices to comply with
the technical standards, including
consideration of multi-year phosphorus
application on fields that do not have a
high potential for phosphorus runoff to
surface water, phased implementation
of phosphorus-based nutrient
management, and other components, as
determined appropriate by the Director.
(3) Manure and soil sampling. Manure
must be analyzed a minimum of once
annually for nitrogen and phosphorus
content, and soil analyzed a minimum
of once every five years for phosphorus
content. The results of these analyses
are to be used in determining
application rates for manure, litter, and
other process wastewater.
(4) Inspect land application
equipment for leaks. The operator must
periodically inspect equipment used for
land application of manure, litter, or
process wastewater.
(5) Setback requirements. Unless the
CAFO exercises one of the compliance
alternatives provided for in paragraph
(c)(5)(i) or (c)(5)(ii) of this section,
manure, litter, and process wastewater
may not be applied closer than 100 feet
to any down-gradient surface waters,
open tile line intake structures,
sinkholes, agricultural "well heads, or
other conduits to surface waters.
(i) Vegetated buffer compliance
alternative. As a compliance alternative,
the CAFO may substitute the lOOJoot
setback with a 35-foot wide vegetated
buffer where applications of manure,
litter, or process wastewater are
prohibited.
(ii) Alternative practices compliance
alternative. As a compliance alternative,
the CAFO may demonstrate that a
setback or buffer is not necessary:
because implementation of alternative
conservation practices or field-specific
conditions will provide pollutant
reductions equivalent or better than the
reductions that would be achieved by
the 100-foot setback.
Subpart A—Horses and Sheep
§412.10 Applicability.
This subpart applies to discharges
resulting from the production areas at
horse and sheep CAFOs. This subpart
does not apply to such CAFOs with less
than the following capacities: 10,000
sheep or 500 horses.
§412.11 [Reserved]
§ 412.12 Effluent limitations attainable by
the application of the best practicable
control technology currently available
(BPT).
(a) Except as provided in 40 CFR
125.30 through 125.32, and subject to
the provisions of paragraph (b) of this
section, any existing point source
subject to this subpart must achieve the
following effluent limitations
representing the application of BPT:
There shall be no discharge of process
waste water pollutants to navigable
waters.
(b) Process waste pollutants in the
overflow may be discharged to
navigable waters whenever rainfall
events, either chronic or catastrophic,
cause an overflow of process waste
water from a facility designed,
constructed and operated to contain all
process generated waste waters plus the
runoff from a 10-year, 24-hour rainfall
event for the location of the point
source.
§412.13 Effluent limitations attainable by
the application of the best available
technology economically achievable (BAT).
(a) Except as provided in 40 CFR
125.30 through 125.32 and when the
provisions of paragraph (b) of this
section apply, any existing point source
subject to this subpart must achieve the
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7271
following effluent limitations
representing the application of BAT:
There shall bo no discharge of process
waste water pollutants into U.S. waters.
(b) Whenever rainfall events cause an
overflow of process wastewater from a
facility designed, constructed, operated,
and maintained to contain all process-
generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event at
the location of the point source, any
process wastewater pollutants in the
overflow may be discharged into U.S.
waters.
§412.14 [Reserved]
§412,15 Standards of performance for
now sources (NSPS)
(a) Except as provided in paragraph
(b) of this section, any new source
subject to this subpart must achieve the
following performance standards: There
must be no discharge of process
wastewater pollutants into U.S. waters.
(b) Whenever rainfall events cause an
overflow of process wastewater from a
facility designed, constructed, operated,
and maintained to contain all process-
generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event at
the location of the point source, any
process wastewater pollutants in the
overflow may be discharged into U.S.
waters.
Subpart B—Ducks
§412.20 Applicability.
This subpart applies to discharges
resulting from the production areas at
dry lot and wet lot duck CAFOs. This
subpart does not apply to such CAFOs
with less than the following capacities:
5,000 ducks.
§412.21 Special definitions.
For the purposes of this subpart:
(a) Dry lot means a facility for growing
ducks in confinement with a dry litter
floor cover and no access to swimming
areas.
(b) Wet lot means a confinement
facility for raising ducks which is; open
to the environment, has a small number
of sheltered areas, and with open water
runs and swimming areas to which
ducks have free access.
§412.22 Effluent limitations attainable by
the application of the best practicable
control technology currently available
(BPT).
(a) Except as provided in 40 CFR
125.30 through 125.32, any existing
point source subject to this subpart shall
achieve the following effluent
limitations representing the degree of
effluent reduction attainable by the
application of the (BPT):
Regulated parameter
BODj
Focal coliform
Maximum
daily '
3 66
(3)
Maximum
monthly
average '
o n
(3)
Maximum
daily2
•i efs
(3)
Maximum
monthly
average 2
<3)
1 Pounds per 1000 ducks.
2 Kilograms per 1000 ducks.
3 Notlo exceed MPN of 400 per 100 ml at any time.
(b) [Reserved]
§§412.23-412.24 [Reserved]
§412.25 New source performance
standards (NSPS).
(a) Except as provided in paragraph
(b) of this section, any new source
subject to this subpart must achieve the
following performance standards: There
must be no discharge of process waste
water pollutants into U.S. waters.
(b) Whenever rainfall events cause an
overflow of process wastewater from a
facility designed, constructed, operated,
and maintained to contain all process-
generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event at
tho location of the point source, any
process wastewater pollutants in the
overflow may be discharged into U.S.
waters.
§412,26 Protroatment standards for new
sources (PSNS).
(a) Except as provided in 40 CFR
403,7 and in paragraph (b) of this
section, any new source subject to this
subpart must achieve the following
performance standards: There must be
no introduction of process waste water
pollutants to a POTW.
(b) Whenever rainfall events cause an
overflow of process wastewater from a
facility designed, constructed, operated,
and maintained to contain all process-
generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event at
the location of the point source, any
process wastewater pollutants in the
overflow may be introduced to a POTW.
Subpart C—Dairy Cows and Cattle
Other Than Veal Calves
§412.30 Applicability.
This subpart applies to operations
defined as concentrated animal feeding
operations (CAFOs) under 40 CFR
122.23 and includes the following
animals: mature dairy cows, either
milking or dry; cattle other than mature
dairy cows or veal calves. Cattle other
than mature dairy cows includes but is
not limited to heifers, steers, and bulls.
This subpart does not apply to such
CAFOs with less than the following
capacities: 700 mature dairy cows
whether milked or dry; 1,000 cattle
other than mature dairy cows or veal
calves.
§412.31 Effluent limitations attainable by
the application of the best practicable
control technology currently available
(BPT).
Except as provided in 40 CFR 125.30
through 125.32, any existing point
source subject to this subpart must
achieve the following effluent
limitations representing the application
of BPT:
(a) For-CAFO production areas.
Except as provided in paragraphs (a) (1)
through (a)(2) of this section, there must
be no discharge of manure, litter, or
process wastewater pollutants into
waters of the U.S. from the production
area.
(1) Whenever precipitation causes an
overflow of manure, litter, or process
wastewater, pollutants in the overflow
may be discharged into U.S. waters
provided:
(i) The production area is designed,
constructed, operated and maintained to
contain all manure, litter, and process
wastewater including the runoff and the
direct precipitation from a 25-year, 24-
hour rainfall event;
(ii) The production area is operated in,
accordance with the additional
measures and records required by
§412.37(a)and(b).
(2) Voluntary alternative performance
standards. Any CAFO subject to this
subpart may request the Director to
establish NPDES permit effluent .
limitations based upon site-specific
alternative technologies that achieve a
quantity of pollutants discharged .from
the production area equal to or less than
the quantity of pollutants that would be
discharged under the baseline
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7272 Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003 /Rules and Regulations
performance standards as provided by
paragraph (a)(l) of this section.
(i) Supporting information. In
requesting site-specific effluent
limitations to be included in the NPDES
permit, the CAFO owner or operator
must submit a supporting technical
analysis and any other relevant
information and data that would
support such site-specific effluent
limitations within-the time frame
provided by the Director. The :
supporting technical analysis must
include calculation of the quantity of
pollutants discharged, on a mass basis
where appropriate, based on a site-
specific analysis of a system designed,
constructed, operated, and maintained
to contain all manure, litter, and process
wastewater, including the runoff from a
25-year, 24-hour rainfall event. The
technical analysis of the discharge of
pollutants must include:
(A) All daily inputs to the storage
system, including manure, litter, all
process waste waters, direct
precipitation, and runoff.
(B) All daily outputs from the storage
system, including losses due to
evaporation, sludge removal, and the
removal of waste water for use on
cropland at the CAFO or transport off
site.
(C) A calculation determining the
predicted median annual overflow
volume based on a 25-year period of
actual rainfall data applicable to the
site.
(D) Site-specific pollutant data,
including N, P, BOD5, TSS, for the
CAFO from, representative sampling and
analysis of all sources of input to the
storage system, or other appropriate
pollutant data. ;
(E) Predicted annual average
discharge of pollutants, expressed
where appropriate as a mass discharge
on a daily basis (Ibs/day), and
calculated considering paragraphs'
(a)(2)(i)(A) through (aK2)(i)(D) of this
section.
(ii) The Director has the discretion to
request additional information to
supplement the supporting technical
analysis, including inspection of the
CAFO.
(3) The CAFO shall attain the
limitations and requirements of this
paragraph as of the date of permit
coverage.
(b) For CAFO land application areas.
Discharges from land application areas
are subject to the following
requirements:
(1) Develop and implement the best
management practices specified in
§412.4;
(2) Maintain the records specified at
§ 412.37 (c); ;
(3) The CAFO shall attain the
limitations and requirements of this
paragraph by December 31, 2006.
§ 412.32 Effluent limitations attainable by
the application of the best conventional
pollutant control technology (BCT).
Except as provided in 40 CFR 125.30
through 125.32, any existing point
source subject to this subpart must
achieve the following effluent
limitations representing the application
of BCT:
(a) For CAFO production areas: the
CAFO shall attain the same limitations
and requirements as § 412.31(a).
(b) For CAFO land application areas:
the CAFO shall attain the same
limitations and requirements as
§412.31(b).
§ 412.33 Effluent limitations attainable by
the application of the best available
technology economically achievable (BAT).
Except as provided in 40 CFR 125.30
through 125.32, any existing point
source subject to this subpart must
achieve the following effluent
limitations representing the application
of BAT: :
(a) For CAFO production areas: the
CAFO shall attain the same limitations
and requirements as §412.3l(a).
(b) For CAFO land application areas:
the CAFO shall attain the same
limitations and requirements as
§412.31(b).
§412.34 [Reserved]
§ 412.35 New source performance
standards (NSPS).
Any new point source'subject to this
subpart must achieve the following
effluent limitations representing the
application of NSPS:
(a) For CAFO production areas. The
CAFO shall attain the same limitations
and requirements as §412.31(a)(l) and
§412.31(a)(2).
(b) For CAFO land application areas:
The CAFO shall attain the same
limitations and requirements as
§412.3lCb)(l) and §412.31(b)(2).
(c) The CAFO shall attain the
limitations and requirements of this
paragraph as of the date of permit
coverage. :
(d) Any source subject to this subpart
that commenced discharging after April
14,1993, and prior to April 14, 2003,
which was a new source subject to the
standards specified in §412.15, revised
as of July 1, 2002, must continue to
achieve those standards for the
applicable time period specified in 40
CFR 122.29(d)(l). Thereafter, the source
must achieve the standards specified in
§412.31(a)and(b).
§412.36 [Reserved]
§412.37 Additional measures.
(a) Each CAFO subject to this subpart
must implement the following
requirements:
(1) Visual inspections. There must be
routine visual inspections of the GAFO
production area. At a minimum, the
following must be visually inspected:
(i) Weekly inspections of all storm
water diversion devices, runoff
diversion structures, and devices;
channelling contaminated storm water
to the wastewater and manure storage
and containment structure;
(ii) Daily inspection of water Imes,
including drinking water or cooling
water lines;
(iii) Weekly inspections of the •
manure, litter, and process wastewater
impoundments; the inspection will note
the level in liquid impotradments as
indicated by the depth marker in
paragraph (a](2) of this section.
(2) Depth marker. All open surface
liquid impoundments must have a
depth marker which clearly indicates
the minimum capacity necessary to
contain the runoff and direct
precipitation of the 25-year, 24-hour
rainfall event, or, in the case of new
sources subject to the requirements in
§ 412.46 of this part, the runoff and
direct precipitation from, a 100-year, 24-
hour rainfall event.
(3) Corrective actions. Any
deficiencies found as a result of these
inspections must be corrected as soon as
possible. :
(4) Mortality handling. Mortalities
must not be disposed,of in any liquid
manure or process wastewater system,
and must be handled in such a way as
to prevent the discharge of pollutants to
surface water, unless alternative
technologies pursuant to §412.31(a)(2)
and approved by the Director are
designed to handle mortalities.
(b) Record'keeping requirements for
the production area. Each CAFO must
maintain on-site for a period of five
years from the date they are created a
complete copy of the information
required by 40 CFR 122.21(i)(l) and 40
CFR 122.42(e)(l)(ix) and the records
specified in paragraphs (b)(l) through
(b)(6) of this section. The CAFO must
make these records available to the
Director and, in an authorized State, the
Regional Administrator, or his or Jier
designee, for review upon request.
(1) Records documenting the =
inspections required under paragraph
(a)(l) of this'section;
(2) Weekly records of the depth of the
manure and process wastewater in the
liquid impoundment as indicated, by the
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Federal Register/Vol. 68, No. 29/Wednesday, February 12, 2003/Rules and Regulations 7273
depth marker under paragraph (a)(2) of
this section;
(3) Records documenting any actions
taken to correct deficiencies required
under paragraph (a)(3) of this section.
Deficiencies not corrected within 30
days must be accompanied by an
explanation of the factors preventing
immediate correction;
(4) Records of mortalities management
and practices used by the CAFO to meet
the requirements of paragraph (a)(4) of
this section.
(5) Records documenting the current
design of any manure or litter storage
structures, including volume for solids
accumulation, design treatment volume,
total design volume, and approximate
number of days of storage capacity;
(6) Records of the date, time, and
estimated volume of any overflow.
(c) Recordkeeping requirements for
the land application areas. Each CAFO
must maintain on-site a copy of its site-
specific nutrient management plan.
Bach CAFO must maintain on-site for a
period of five years from the date they
are created a complete copy of the
information required by § 412.4 and 40
CFR 122.42(e)(l)(ix) and the records
specified in paragraphs (c)(l) through
(c)(lO) of this section. The CAFO must
make these records available to the
Director and, in an authorized State, the
Regional Administrator, or his or her
dcsignee, for review upon request.
(1) Expected crop yields;
(2) The dale(s) manure, litter, or
Erocess waste water is applied to each
eld;
(3) Weather conditions at time of
application and for 24 hours prior to
and following application;
(4) Test methods used to sample and
analyze manure, litter, process waste
water, and soil;
(5) Results from manure, litter,
process waste water, and soil sampling;
(6) Explanation of the basis for
determining manure application rates,
as provided in the technical standards
established by the Director.
(7) Calculations showing the total
nitrogen and phosphorus to be applied
to each field, including sources other
than manure, litter, or process
wastewater;
(8) Total amount of nitrogen and
phosphorus actually applied to each
held, including documentation of
calculations for the total amount
applied;
(9) The method used to apply the
manure, litter, or process wastewater;
(10) Date(s) of manure application
equipment inspection.
Subpart D—Swine, Poultry, and Veal
Calves
§412.40 Applicability.
This subpart applies to operations
defined as concentrated animal feeding
operations (CAFOs) under 40 CFR
122.23 and includes the following
animals: swine; chickens; turkeys; and
veal calves. This subpart does not apply
to such CAFOs with less than the
following capacities: 2,500 swine each
weighing 55 Ibs. or more; 10,000 swine
each weighing less than 55 Ibs.; 30,000
laying hens or broilers if the facility
uses a liquid manure handling system;
82,000 laying hens if the facility uses
other than a liquid manure handling
system; 125,000 chickens other than
laying hens if the facility uses other
than a liquid manure handling system;
55,000 turkeys; and 1,000 veal calves.
§§412.41-412.42 [Reserved]
§412.43 Effluent limitations attainable by
the application of the best practicable
control technology currently available
(BPT).
Except as provided in 40 CFR 125.30
through 125.32, any existing point
source subject to this subpart must
achieve the following effluent
limitations representing the application
of BPT:
(a) For CAFO production areas.
(1) The CAFO shall attain the same
limitations and requirements as
§412.31(a)(l) through (a)(2).
(2) The CAFO shall attain the
limitations and requirements of this
paragraph as of the date of permit
coverage.
(b) For CAFO land application areas.
[1) The CAFO shall attain the same
limitations and requirements a§
§412.31(b)(l) and (b)(2).
(2) The CAFO shall attain the
limitations and requirements of this
paragraph by December 31, 2006.
§ 412.44 Effluent limitations attainable by
the application of the best conventional
pollutant control technology (BCT).
Except as provided in 40 CFR 125.30
through 125.32, any existing point
source subject to this subpart must
achieve the following effluent
limitations representing the application
of BCT:
(a) For CAFO production areas: the
CAFO shall attain the same limitations
and requirements as § 412.43(a).
(b) For CAFO land application areas:
the CAFO shall attain the same
limitations and requirements as
§412.43(b).
§412.45 Effluent limitations attainable by
the application of the best available
technology economically achievable (BAT).
Except as provided in 40 CFR 125.30
through 125.32, any existing point
source subject to this subpart must
achieve the following effluent
limitations representing the application
of BAT:
(a) For CAFO production areas: the
CAFO shall attain the same limitations
and requirements as § 412.43(a). ;
(b) For CAFO land application areas:
the CAFO shall attain the same
limitations and requirements as
§412.43(b).
§412.46 New source performance
standards (NSPS).
Any new source subject to this
subpart must achieve the following
effluent limitations representing the
application of NSPS:
(a) For CAFO production areas. There
must be no discharge of manure, litter,
or process wastewater pollutants into
waters of the U.S. from the production
area, subject to paragraphs (a)(l)
through (a)(3) of this section.
(1) Waste management and storage
facilities designed, constructed,
operated, and maintained to contain all
manure, litter, and process wastewater
including the runoff and the direct
precipitation from a 100-year, 24-hour
rainfall event and operated in
accordance with the additional
measures and records required by
§ 412.47(a) and (b), will fulfill the
requirements of this section.
(2) The production area must be
operated in accordance with the
additional measures required by
§ 412.47(a) and (b).
(3) Provisions for upset/bypass, as
provided in 40 CFR 122.41(m]-(n),
apply to a new source subject to this
provision.
[b) For CAFO land application areas:
the CAFO shall attain the same
limitations and requirements as
§412.43(b)(l).
(c) The CAFO shall attain the
limitations and requirements of this
paragraph as of the date of permit
coverage.
(d) Voluntary superior environmental
performance standards. Any new source
CAFO subject to this subpart may
request the Director to establish
alternative NPDES permit limitations
based upon a demonstration that site-
specific innovative technologies will
achieve overall environmental
performance across all media which is
equal to or superior to the reductions
achieved by baseline standards as
provided by §412.46(a). The quantity of
pollutants discharged from the
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7274 Federal Register/Vol. 68, No. 29 / Wednesday, February 12, 2003/Rules and Regulations
production area must be accompanied
by an equivalent or greater reduction in
the quantity of pollutants released to
other media from the production area
(e.g., air emissions from housing and
storage) and/or land application areas
for all manure, litter, and process
waste-water at on-site and off-site
locations. The comparison of quantity of
pollutants must be made on a mass basis
where appropriate. The Director has the
discretion to request supporting -
information to supplement such a
request.
(e) Any source subject to this subpart
that commenced discharging after April
14,1993, and prior to April 14, 2003,
which was a new source subject to the
standards specified in §412.15, revised
as of July 1, 2002, must continue to
achieve those-standards for the
applicable time period specified in 40
CFR 122.29(d)(l). Thereafter, the source
must achieve the standards specified in
§ 41.2.43(a) and (b).
§412.47 Additional measures.
(a) Each CAFO subject to this subpart
must implement the requirements of
§412.37(a).
(b) Each CAFO subject to this sttbpart
must comply with the record-keeping
requirements of §412.37(b).
(c) Each CAFO subject to this subpart
must comply with the record-keeping
requirements of §412.37(c).
[FRDoc. 03-3074 Filed 2-11-03; 8:4Ej am]
BILLING CODE 6560-50-P
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