.*?.
!•/•;«*
5**
National Pollutant Discharge Elimination
System Permit Regulation and Effluent
Limitations Guidelines and Standards
for
CAFOs
Proposed Rule
Prepublication Copy
December 2000
U.S. EPA Headquarters Library
• Mail code 3201
1200 Pennsylvania Avenue NW
Washington DC 20460
'
-------
-------
The Administrator signed the attached proposed rule on December 15,2000, and we (EPA) are submitting it for
publication in the Federal Register. While we have taken steps to ensure the accuracy of this prepublication version
of the rule, it is not the official version of the rule for purposes of public comment. Please refer to the official
version in a forthcoming Federal Register publication or on GPCXEs Web Site. You can access the Federal Register
at:
hup:/Avww.access.gDo.gov/su docs/aces/aces 140.html.
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 412
[FRL-]
RIN
National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations
Guidelines and Standards for Concentrated Animal Feeding Operations
AGENCY: Environmental Protection Agency (EPA)
ACTION: Proposed rule
SUMMARY: Today the Environmental Protection Agency proposes to revise and update two
regulations that address the impacts of manure, wastewater, and other process waters generated
by concentrated animal feeding operations (CAFOs) on water quality. These two regulations are
the National Pollutant Discharge Elimination System (NPDES) provisions that define which
operations are CAFOs and establish permit requirements, and the Effluent Limitations
Guidelines for feedlots (beef, dairy, swine and poultry subcategories), which establish the
technology-based effluent discharge standards for CAFOs. EPA is proposing revisions to these
regulations to address changes that have occurred in the animal industry sectors over the last 25
years, to clarify and improve implementation of CAFO permit requirements, and to improve the
environmental protection achieved under these rules.
Environmental concerns being addressed by this rule include both ecological and human
health effects. Manure from stockpiles, lagoons, or excessive land application can reach
waterways through runoff, erosion, spills, or via groundwater. These discharges can result in
excessive nutrients (nitrogen, phosphorus, and potassium), oxygen-depleting substances, and
other pollutants in the water. This pollution can kill fish and shellfish, cause excess algae growth,
harm marine mammals, and contaminate drinking water.
Today's action co-proposes two alternatives for how to structure the revised NPDES
program for CAFOs; the alternatives offer comparable environmental benefits but differ in their
administrative approach. EPA also requests comment on two other alternatives that the Agency
is considering and may pursue after evaluating the comments.
EPA is also proposing to revise effluent guidelines applicable to beef, dairy, swine, and
poultry operations that are defined as CAFOs, pursuant to the NPDES revisions. The proposed
-------
effluent guidelines include regulations for both new and existing animal feeding operations that
meet the definition of a CAFO. Today's effluent guidelines revisions do not alter the
requirements for horses, ducks, sheep or lambs.
DATES: Comments must be received or postmarked on or before midnight[ insert date 120
days after date of publication in the Federal Register]
ADDRESSES: Public comments regarding this proposed rule should be submitted by mail to:
Concentrated Animal Feeding Operation Proposed Rule, Office of Water, Engineering and
Analysis Division (4303), USEPA, 1200 Pennsylvania Avenue, NW, Washington, DC 20460.
Hand deliveries (including overnight mail) should be submitted to the Concentrated Animal
Feeding Operation Proposed Rule, USEPA, Waterside Mall, West Tower, Room 611,401M
Street, SW, Washington, DC 20460. You also may submit comments electronically to
CAFOS.comments@epa.gov. Please submit any references cited in your comments. Please
submit an original and three copies of your written comments and enclosures. For additional
information on how to submit comments, see "SUPPLEMENTARY INFORMATION, How
May I Submit Comments?"
FOR FURTHER INFORMATION CONTACT: For additional technical information contact
Karen Metchis or Jan Goodwin at (202) 564-0766.
SUPPLEMENTARY INFORMATION:
What Entities Are Potentially Regulated by This Action?
This proposed rule would apply to new and existing animal feeding operations that meet
the definition of a concentrated animal feeding operation, or which are designated by the
permitting authority as such. Concentrated animal feeding operations are defined by the Clean
Water Act as point sources for the purposes of the NPDES program. (33 U.S.C. § 1362).
The following table lists the types of entities that are potentially, subject to this proposed
rule. This table is not intended to be exhaustive, but rather provides a guide for readers regarding
entities likely to be regulated by this action. Other types of entities not listed in the table could
also be regulated. To determine whether your facility would be regulated by this action, you
should carefully examine the applicability criteria proposed at § 122.23(a)(2) of the rule. If you
have questions regarding the applicability of this action to a particular entity, consult one of the
persons listed for technical information in the preceding "FOR FURTHER INFORMATION
CONTACT" section.
N
Category
Federal, State and
Local Government
Examples of Regulated Entities
North American
Industry Code
(NAIC)
Standard
Industrial
Classification
Codes
-------
Category
Industry
"
Examples of Regulated Entities
Operators of animal production operations that
meet the definition of a concentrated animal
feeding operation.
Beef cattle feedlots
Hogs
Sheep and goats
General livestock, except dairy and
poultry
Dairy farms
Broilers, fryers, and roaster chickens
Chicken eggs
Turkey and turkey eggs
Poultry hatcheries
Poultry and eggs, NEC
Ducks
Horses and other equines
Meat packing or poultry processing companies
that may be a potential co-permittee because of
substantial operational control over a CAFO
Animal Slaughtering and Processing
Owners or operators of crop production
operations that may receive CAFO manure for
use as a fertilizer substitute
Crop Production
North American
Industry Code
(NAIC)
See below
112112
11221
1241,11242
11299
112111,11212
11232
11231
11233
11234
11239
112390
11292
3116
111
Standard
Industrial
Classification
Codes
See below
0211
0213
0214
0219
0241
0251
0252
0253
0254
0259
0259
0272
02
01
How May I Review the Public Record?
The record (including supporting documentation) for this proposed rule is filed under
docket number OW-00-27 (proposed rule). The record is available for inspection from 9 a.m. to
4 p.m. on Monday through Friday, excluding legal holidays, at the Water Docket, Room EB 57,
USEPA Headquarters, 401 M Street, SW, Washington, DC 20460. For access to docket
materials, please call (202) 260-3027 to schedule an appointment during the hours of operation
stated above.
How Mav I Submit Comments?
-------
To ensure that EPA can read, understand, and therefore properly respond to comments,
the Agency requests that you cite, where possible, the paragraph(s) or sections in the preamble,
rule, or supporting documents to which each comment refers. You should use a separate
paragraph for each issue discussed.
If you want EPA to acknowledge receipt of your comments, enclose a self-addressed,
stamped envelope. No faxes will be accepted. Comments may also be submitted electronically
to CAFOS.comments@epa.gov. Electronic comments must be submitted as an ASCH,
WordPerfect 5.1, WP6.1, or WPS file avoiding the use of special characters and forms of
encryption. Electronic comments must be identified by the docket number OW-00-27. EPA will
accept comments and data on disks in WordPerfect 5.1,6.1, or 8 format or in ASCH file format.
Electronic comments on this notice may be filed on-line at many Federal depository libraries.
Table of Contents
I. Legal Authority.
H. Purpose and Summary of the Proposed Regulation.
HI. Background.
A. The Clean Water Act.
B. History of EPA Actions to Address CAFOs.
C. Which Requirements Apply to CAFOs.
D. How Do Today's Proposed Revisions Compare to the Unified National AFO
Strategy?
IV. Why is EPA Changing the Effluent Guidelines for Feedlots and the NPDES CAFO
Regulations?
A. Main Reasons for Revising the Existing Regulations.
B. Water Quality Impairment Associated with Manure Discharge and Runoff.
C. Recent Changes in the Livestock and Poultry Industry.
D. Improve Effecti veness of Regulations.
V. What Environmental and Human Health Impacts are Potentially Caused by CAFOs?
A. Which Pollutants Do CAFOs Have the Potential to Discharge and Why are They
of Concern?
B. How Do These Pollutants Reach Surface Waters?
C. What are the Potential and Observed Impacts?
VI. What are Key Characteristics of the Livestock and Poultry Industries?
A. Introduction and Overview.
B. Beef Subcategory.
C. Dairy Subcategory.
D. Hog Subcategory.
E. Poultry Subcategory.
What Changes to the NPDES CAFO Regulations are Being Proposed?
A. Summary of Proposed NPDES Regulations.
B. What Size AFOs Would be Considered CAFOs?
-------
IX.
X.
XI.
XH.
C. Changes to the NPDES Regulations.
D. Land Application of CAFO-generated Manure.
E. What are the Terms of an NPDES Permit?
F. What Type of NPDES Permit is Appropriate for CAFOs?
What Changes to the Feedlot Effluent Limitations Guidelines are Being Proposed?
A. Expedited Guidelines Approach.
B. Changes to Effluent Guidelines Applicability.
C. Changes to Effluent Limitations and Standards.
Implementation of Revised Regulations.
A. How do the Proposed Changes Affect State CAFO Programs?
B. How Would EPA's Proposal to Designate CAFOs Affect NPDES Authorized
States?
C. How and When Will the Revised Regulations be Implemented?
D. How Many CAFOs are Likely to be Permitted in Each State and EPA Region?
E. Funding Issues.
F. What Provisions are Made for Upset and Bypass?
G. How Would an Applicant Apply for Variances and Modifications to Today's
Proposed Regulation?
What are the Costs and Economic Impacts of the Proposed Revisions?
A. Introduction and Overview.
B. Data Collection Activities.
C. Method for Estimating Compliance Costs.
D. Method for Estimating Economic Impacts.
E. Estimated Annual Costs of the Proposed Regulatory Options/Scenarios.
F. Estimated Economic Impacts of the Proposed Regulatory Options/Scenarios.
G. Additional Impacts.
H. Cost-Effectiveness Analysis.
I. Cost-Benefit Analysis.
J. Initial Regulatory Flexibility Analysis.
What are the Environmental Benefits of the Proposed Revisions?
A. Non- Water Quality Environmental Impacts.
B. Quantitative and Monetized Benefits.
Public Outreach.
A. Introduction and Overview.
B . Joint USD A/EPA Unified AFO Strategy Listening Sessions.
C. Advisory Committee Meeting.
D. Farm Site Visits.
E. Industry Trade Associations.
F. CAFO Regulation Workgroup.
G. Small Business Advocacy Review Panel.
Administrative. Requirements.
A. Executive Order 12866: "Regulatory Planning and Review".
-------
B. Regulatory Flexibility Act (RFA) as Amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.
C. Unfunded Mandates Reform Act.
D. Executive Order 13045: "Protection of Children from Environmental Health Risks
and Safety Risks".
E. Executive Order 13084: Consultation and Coordination with Indian Tribal
Governments.
F. Paperwork Reduction Act.
G. Executive Order 13132: "Federalism".
H. Executive Order 12898: "Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations".
I. National Technology Transfer and Advancement Act.
XIV. Solicitation of Comments.
A. Specific Solicitation of Comment and Data.
B. General Solicitation of Comment.
I. Legal Authority
Today's proposed rule is issued under the authority of sections 301, 304,306,307,308,
402, and 501 of the Clean Water Act (CWA), 33 U.S.C. 1311,1314, 1316,1317, 1318,1342,
and 1361.
II. Purpose and Summary of the Proposed Regulation
Today, the Environmental Protection Agency proposes to revise and update two
regulations that address the impacts on water quality from manure, wastewater, and other process
waters generated by concentrated animal feeding operations (CAFOs). The National Pollutant
Discharge Elimination System (NPDES) provisions in 40 CFR Part 122 define which operations
are CAFOs and establish permit requirements for those operation. The Effluent Limitations
Guidelines (ELG), or effluent guidelines, for feedlots in 40 CFR Part 412 establish technology-
based effluent discharge standards that are applied to CAFOs. Both regulations were originally
promulgated in the 1970s. EPA is proposing revisions to these regulations to address changes
that have occurred in the animal industry sectors over the last 25 years, to clarify and improve
implementation of CAFO permit requirements, and to improve the environmental protection
achieved under these rules.
Environmental concerns being addressed by this rule include both ecological and human
health effects. Manure from stockpiles, lagoons, or excessive land application rates can reach
waterways through runoff, erosion, spills, or via groundwater. These discharges can result in
excessive nutrients (nitrogen, phosphorus, and potassium), oxygen-depleting substances, and
other pollutants in the water. This pollution can kill fish and shellfish, cause excess algae
growth, harm marine mammals, and contaminate drinking water.
-------
On October 30,1989, Natural Resources Defense Council, Inc., and Public Citizen, Inc.,
filed an action against EPA in which they alleged, among other things, that EPA had failed to
comply with CWA section 304(m). Natural Resources Defense Council. Inc.. et al. v. Reillv.
Civ. No. 89-2980 (RCL) (D.D.C.). Plaintiffs and EPA agreed to a settlement of that action in a
consent decree entered on January 31,1992. The consent decree, which has been modified
several times, established a schedule by which EPA is to propose and take final action for eleven
point source categories identified by name in the decree and for eight other point source
categories identified only as new or revised rules, numbered 5 through 12. After completing a
preliminary study of the feedlots industry under the decree, EPA selected the swine and poultry
portion of the feedlots industry as the subject for New or Revised Rule #8, and the beef and dairy
portion of that industry as the subject for New or Revised Rule #9. Under the decree, as
modified, the Administrator was required to sign a proposed rule for both portions of the feedlots
jndustry on or before December 15,2000, and must take final action on that proposal no later
than December 15,2002. As part of EPA's negotiations with the plaintiffs regarding the
deadlines for this rulemaking, EPA entered into a settlement agreement dated December 6,1999,
under which EPA agreed,.by December 15, 2000, to also propose to revise the existing NPDES
permitting regulations' under 40 C.F.R. part 122 for CAFOs. EPA also agreed to perform certain
evaluations, analyses or assessments and to develop certain preliminary options in connection
with the proposed CAFO rules. (The Settlement Agreement expressly provides that nothing in
the Agreement requires EPA to select any of these options as the basis for its proposed rule.)
The existing regulation defines facilities with 1,000 animal units ("AU") or more as
CAFOs. The regulation also states that facilities with 300 -1000 AU are CAFOs if they meet
certain conditions. The term AU is a measurement established in the 1970 regulations that
attempted to equalize the characteristics of the wastes among different animal types.
Today's proposals presents two alternatives for how to structure the revised NPDES
program for CAFOs. The first alternative is a "two-tier structure" that simplifies the definition of
CAFOs by establishing a single threshold for each animal sector. This alternative would
establish a single threshold at the equivalent of 500 AU above which operations would be
defined as CAFOs and below which facilities would become CAFOs only if designated by the
permit authority. The 500 AU equivalent for each animal sector would be as follows.
500 cattle excluding mature dairy or veal cattle
500 veal cattle
350 mature dairy cattle (whether milked or dry)
1,250 mature swine weighing over 55 pounds
5,000 immature swine weighing 55 pounds or less
50,000 chickens
27,500 turkeys
2,500 ducks
250 horses
5,000 sheep or Iambs
-------
The second proposal would retain the "three-tier structure" of the existing regulation.
Under this alternative, all operations with 1,000 AU or more would be defined as CAFOs; those
with 300 AU to 1,000 AU would be CAFOs only if they meet certain conditions or if designated
by the permit authority; and those with fewer than 300 AU would only be CAFOs if designated
by the permit authority. These conditions are detailed in section VII of this preamble and differ
from those in the current rule. Facilities with 300 AU to 1,000 AU would certify that they do
not meet the conditions for being defined as a CAFO or apply for a permit. The 300 AU and
1,000 AU equivalent number of animals for each sector would be as follows:
Animal Type
Cattle excluding mature
dairy or veal cattle
Veal
Mature Dairy Cattle
Swine weighing more
than 55 pounds
Swine weighing 55
pounds or less
Chickens
Turkeys
Ducks
Horses
Sheep or Lambs
1,000 AU equivalent
(no. of animals)
1,000
1,000
700
2,500
10,000
100,000
55,000
5,000
500
10,000
300 AU equivalent
(no. of animals)
300
300
200
750
3,000
30,000
16,500
1,500
150
3,000
The Agency is also talcing comment on two other alternatives that the Agency is considering and
may pursue after evaluating comments.
Today's proposal would also expand the regulatory definition of CAFOs to include all
types of poultry operations regardless of the type of manure handling system or watering system
they use, and also wold include standalone immature swine and heifer operations.
Under the two-tier proposal, EPA is proposing to simplify the criteria for being
designated as a CAFO by eliminating two specific criteria that have proven difficult to
implement, the "direct contact" criterion and the "man made device" criterion. Under the three-
tier proposal, EPA is proposing to retain those criteria for designating operations which have less
than 300 AU. Both proposals retain the existing requirement for the permit authority to consider
a number of factors to determine whether the facility is a significant contributor of pollution to
waters of the U.S., and the requirement for an on-site inspection prior to designation. EPA is
also proposing to clarify that EPA has the authority to designate CAFOs both in states where
EPA is the permit authority and in States with NPDES authorized programs.
-------
EPA is proposing to eliminate the 25-year, 24-hour storm event permit exclusion and to
impose a broader, more explicit duty for all CAFOs to apply for a permit (with one exception as
described below). Under the current regulations, facilities are excluded from being defined as,
and thus subject to permitting as, CAFOs if they discharge only in the event of a 25-year, 24-hour
storm. This exclusion has proven to be problematic in practice, as described below, and
ultimately unnecessary. There are many operations that currently may be avoiding permitting by
an inappropriate reliance on this exclusion. The Agency believes there is no reason to retain this
exclusion from the definition of a CAFO. However, EPA is proposing to retain the 25-year, 24-
hour storm standard as a design standard in the effluent guidelines for certain sectors
(specifically, the beef and dairy sectors). CAFOs in those sectors would need to obtain permits,
but the permits would allow certain discharges as long as the facility met the 25-year, 24-hour
storm design standard.
In sum, under today's proposal, all operations that meet the definition of a CAFO under
either of the two alternative structures (as well as all operations that are designated as CAFOs)
would be required to apply for a permit. There would, however, be one exception to this
requirement, as described in more detail below: If the operator could demonstrate to the
permitting authority that the.facility has "no potential to discharge," then a permit application and
a permit would not be required.
Under the two-tier structure, the net effect of the revisions for determining which
facilities are CAFOs is to require approximately 26,000 operations to apply for a NPDES permit.
Under the three-tier structure, EPA estimates that approximately 13,000 operations would be
required to apply for a permit, and an additional 26,000 operations could either certify that they
are not a CAFO or apply for a permit. Under the existing regulation, EPA estimates that about
12,000 facilities should be permitted but only 2,530 have actually applied for a permit.
Today's proposal would clarify the definition of a CAFO as including both the production
areas (animal confinement areas, manure storage areas, raw materials storage areas and waste
containment areas) and the land application areas that are under the control of the CAFO owner .
or operator. As the industry trend is to larger, more specialized feedlots with less cropland
needing the manure for fertilizer, EPA is concerned that manure is being land applied in excess
of agricultural uses and, therefore, being managed as a waste product, and that this practice is
causing runoff or leaching to waters of the U.S. The permit would address practices at the
production area as well as the land application area, and would impose record keeping and other
requirements with regard to transfer of manure off-site.
EPA is further proposing to clarify that entities that exercise "substantial operational
control" over the CAFO are "operators" of the CAFO and thus would need to obtain a permit
along with the CAFO owner or operator. The trend toward specialized animal production under
contract with processors, packers and other integrators has increasingly resulted in concentrations
of excess manure beyond agricultural needs in certain geographic areas. Especially in the poultry
and swine sector, the processor provides the animals, feed, medication and/or specifies growing
-------
practices. EPA believes that clarifying that both parties are liable for compliance with the terms
of the permit as well as responsible for the excess manure generated by CAFOs will lead to better
management of manure.
The proposed effluent guidelines revisions would apply only to beef, dairy, swine, poultry
and veal operations that are defined or designated as CAFOs under either of the two alternative
structures and that are above the threshold for the effluent guideline. For those CAFOs below the
threshold for being subject to the effluent guidelines, the permit writer would use best
professional judgment (BPJ) to develop the site-specific permit conditions.
Today's proposed effluent guidelines revisions would not alter the existing effluent
guideline regulations for horses, ducks, sheep or lambs. In these sectors, only facilities with
1,000 AU or more are subject to the effluent guidelines. Permits for operations in these
subcategories with fewer than 1,000 AU would continue to be developed based on the best
professional judgement of the permit writer.
The proposed effluent guidelines regulations for beef, dairy, swine, poultry and veal
operations will establish the Best Practicable Control Technology (BPT), Best Conventional
Pollutant Control Technology (BCT), and the Best Available Technology (BAT) limitations as
well as New Source Performance Standards, including specific best management practices which
ensure that manure storage and handling systems are inspected and maintained adequately. A
description of these requirements is in Section HI.
Under the BPT requirements for all of the subcategories, EPA is proposing to require zero
discharge from the production area except that an overflow due to catastrophic or chronic storms
would be allowed if the CAFO met a certain design standard for its containment structures. If a
CAFO uses a liquid manure handling system, the storage structure or lagoon would be required
to be designed, constructed and maintained to capture all process wastewater and manure, plus
all the storm water runoff from the 25-year, 24-hour storm.
The proposed BPT limitations also include specific requirements on the application of
manure and wastewater to land that is owned or under the operational control of the CAFO. EPA
is proposing to require that CAFOs apply their manure at a rate calculated to meet the
requirements of the crop for either nitrogen or phosphorus (depending on the soil conditions for
phosphorus). Livestock manure tends to be phosphorus rich, meaning that if manure is applied
to meet the nitrogen requirements of a crop, then phosphorus is being applied at rates higher than
needed by the crop. Repeated application of manure on a nitrogen basis may build up
phosphorus levels in the soil, and potentially result in saturation, thus contributing to the
contamination of surface waters through erosion, snow melt and rainfall events. Therefore, EPA
is also proposing that manure must be applied to cropland at rates not to exceed the crop
requirements for nutrients and the ability of the soil to absorb any excess phosphorus. BPT
establishes specific record keeping requirements associated with ensuring the achievement of the
zero discharge limitation for the production area and that the application of manure and
10
-------
wastewater is done in accordance with land application requirements. EPA also proposes to
require the CAFO operator to maintain records of any excess manure that is transported off-site.
BAT limitations for the beef and dairy subcategories would include all of the BPT
limitations described above and, in addition, would require CAFOs to achieve zero discharge to
ground water beneath the production area that has a direct hydrologic connection to surface
water. In addition, the proposed BAT requirements for the swine, veal and poultry subcategories
would eliminate the provision for overflow in the event of a chronic or catastrophic storm.
CAFOs in the swine, veal and poultry subcategories typically house their animals under roof
instead of in open areas, thus avoiding or minimizing the runoff of contaminated storm water and
the need to contain storm water.
EPA is also proposing to revise New Source Performance Standards (NSPS) based on the
same technology requirements as BAT for the beef and dairy subcategories. For the swine, veal
and poultry subcategories, EPA proposes revised NSPS based on the same technology as BAT
with the additional requirement that there be no discharge of pollutants through ground water
beneath the production area that has a direct hydrological connection to surface waters. Both the
BAT and NSPS requirements have the same land application and record keeping requirements as
proposed for BPT.
Today's proposal would make several other changes to the existing regulation, which
would:
require the CAFO operator to develop a Permit Nutrient Plan for managing
manure and wastewater at both the production area and the land application area;
require certain record keeping, reporting, and monitoring;
revise the definition of an animal feeding operation (AFO) to more clearly exclude
areas such as pastures and rangeland that sustain crops or forage during the entire
time that animals are present;
eliminate the mixed-animal type calculation for determining which AFOs are
CAFOs; and
require permit authorities to include the following conditions in permits to:
1) require retention of a permit until proper facility closure; 2) establish the
method for operators to calculate the allowable manure application rate; 3) specify
restrictions on timing and methods of application of manure and wastewater to
assure use for an agricultural purpose (e.g., certain applications to frozen, snow
covered or saturated land) to prevent impairment of water quality; 4) address risk
of contamination via groundwater with a direct hydrological connection to surface
water; 5) address the risk of improper manure application off-site by either
11
-------
requiring that the CAFO operator obtain from off-site recipients a certification
that they are land applying CAFO manure according to proper agricultural
practices or requiring the CAFO to provide information to manure recipients and
keep appropriate records of off-site transfers, or both; and 6) establish design
standards to account for chronic storm events.
Today's proposal would also:
clarify EPA's interpretation of the agricultural storm water exemption and its
implications for land application of manure both at the CAFO and off-site; and
clarify application of the CWA to dry weather discharges at AFOs.
EPA is seeking comment on the entire proposal. Throughout the preamble, EPA
identifies specific components of the proposed rule on which comment is particularly sought.
III. Background
A. The Clean Water Act
Congress passed the Federal Water Pollution Control Act (1972), also known as the
Clean Water Act (CWA), to "restore and maintain the chemical, physical, and biological integrity
of the nation's waters." (33 U.S.C. § 1251(a)). The CWA establishes a comprehensive program
for protecting our nation's waters. Among its core provisions, the CWA prohibits the discharge
of pollutants from a point source to waters of the U.S. except as authorized by a National
Pollutant Discharge Elimination System (NPDES) permit. The CWA establishes the NPDES
permit program to authorize and regulate the discharges of pollutants to waters of the U.S. EPA
has issued comprehensive regulations that implement the NPDES program at 40 CFR Part 122.
The CWA also provides for the development of technology-based and water quality-based
effluent limitations that are imposed through NPDES permits to control discharges of pollutants.
1. The National Pollutant Discharge Elimination System (NPDES)
Permit Program
Under the NPDES permit program, all point sources that directly discharge pollutants to
waters of the U.S. must apply for a NPDES permit and may only discharge pollutants in
compliance with the terms of that permit. Such permits must include any nationally established,
technology based effluent discharge limitations (i.e., effluent guidelines) (discussed below, in
subsection DI.A.2). In the absence of national effluent limitations, NPDES permit writers must
establish technology based limitations and standards on a case-by-case basis, based on their "best
professional judgement (BPJ)."
12
-------
Water quality-based effluent limits also are included in a permit where technology-based
limits are not sufficient to ensure compliance with State water quality standards that apply to the
receiving water or where required to implement a Total Maximum Daily Load (TMDL). Permits
may also include specific best management practices to achieve effluent limitations and
standards, typically included as special conditions. In addition, NPDES permits normally include
monitoring and reporting requirements, and standard conditions (i.e., conditions that apply to all
NPDES permits, such as the duty to properly operate and maintain equipment and treatment
systems).
NPDES permits may be issued by EPA or a State, Territory, or Tribe authorized by EPA
to implement the NPDES program. Currently, 43 States and the Virgin Islands are authorized to
administer the base NPDES program (the base program includes the federal requirements
applicable to AFOs and CAFOs). Alaska, Arizona, the District of Columbia, Idaho, Maine,
Massachusetts, New Hampshire, and New Mexico are not currently authorized to implement the
NPDES program. In addition, Oklahoma, while authorized to administer the NPDES program,
does not have CAFO regulatory authority. No tribe is currently authorized.
A NPDES permit may be either an individual permit tailored for a single facility or a
general permit applicable to multiple facilities within a specific category. Prior to the issuance of
an individual permit, the owner or operator submits a permit application with facility-specific
information to the permit authority, who reviews the information and prepares a draft permit.
The permit authority prepares a fact sheet explaining the draft permit, and publishes the draft
permit and fact sheet for public review and comment. Following consideration of public
comments by the permit authority, a final permit is issued. Specific procedural requirements
apply to the modification, revocation and reissuance, and termination of a NPDES permit.
NPDES permits are subject to a maximum 5-year term.
General NPDES permits are available to address a category of discharges that involve
similar operations with similar wastes. General permits are not developed based on facility-
specific information. Instead, they are developed based on data that characterize the type of
operations being addressed and the pollutants being discharged. Once a general permit is drafted,
it is published for public review and comment accompanied by a fact sheet that explains the
permit. Following EPA or State permit authority consideration of public comments, a final
general permit is issued. The general permit specifies the type or category of facilities that may
obtain coverage under the permit. Those facilities that fall within this category then must submit
a "notice of intent" (NOI) to be covered under the general permit to gain permit coverage. [Under
40 CFR 122.28(b)(2)(vi), the permit authority also may notify a discharger that it is covered
under a general permit even where that discharger has not submitted a notice of intent to be
covered by the permit.] EPA anticipates that the Agency and authorized States will use general
NPDES permits to a greater extent than individual permits to address CAFOs.
2. Effluent Limitation Guidelines and Standards
13
-------
Effluent limitation guidelines and standards (which we also refer to today as "effluent
guidelines" or "ELG") are national regulations that establish limitations on the discharge of
pollutants by industrial category and subcategory. These limitations are subsequently
incorporated into NPDES permits. The effluent guidelines are based on the degree of control
that can be achieved using various levels of pollution control technology, as outlined below. The
effluent guidelines may also include non-numeric effluent limitations in the form of best
management practices requirements or directly impose best management practices as appropriate.
a. Best Practicable Control Technology Currently Available
(BPT)--Section 304(b)(l) of the CWA
In the guidelines for an industry category, EPA defines BPT effluent limits for
conventional, toxic, and non-conventional pollutants. In specifying BPT, EPA looks at a number
of factors. EPA first considers the cost of achieving effluent reductions in relation to the effluent
reduction benefits. The Agency also considers the age of the equipment and facilities, the
processes employed and any required process changes, engineering aspects of the control
technologies, non-water quality environmental impacts (including energy requirements), and
such other factors as the Agency deems appropriate (CWA 304(b)(l)(B)). Traditionally, EPA
establishes BPT effluent limitations based on the average of the best performances of facilities
within the industry of various ages, sizes, processes or other common characteristics. Where
existing performance is uniformly inadequate, EPA may require higher levels of control than
currently in place in an industrial category if the Agency determines that the technology can be
practically applied.
b. Best Available Technology Economically Achievable
(BAT)--Section 304(b)(2) of the CWA
In general, BAT effluent limitations represent the best existing economically achievable
performance of direct discharging plants in the industrial subcategory or category. The factors
considered in assessing BAT include the cost of achieving BAT effluent reductions, the age of
equipment and facilities involved, the processes employed, engineering aspects of the control
technology, potential process changes, non-water quality environmental impacts (including
energy requirements), and such factors as the Administrator deems appropriate. The Agency
retains considerable discretion in assigning the weight to,be accorded to these factors. An
additional statutory factor considered in setting BAT is economic achievability. Generally, the
achievability is determined on the basis of the total cost to the industrial subcategory and the
overall effect of the rule on the industry's financial health. BAT limitations may be based on
effluent reductions attainable through changes 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.
14
-------
c. Best Conventional Pollutant Control Technology
(BCT)-Section 304(b)(4) of the CWA
The 1977 amendments to the CWA required EPA to identify effluent reduction levels for
conventional .pollutants associated with BCT technology for discharges from existing industrial
point sources. BCT is not an additional limitation, but replaces Best Available Technology
(BAT) for control of conventional pollutants. In addition to other factors specified in Section
304(b)(4)(B), the CWA requires that EPA establish BCT limitations after consideration of a two
part "cost-reasonableness" test. EPA explained its methodology for the development of BCT
limitations in July 1986 (51 ER 24974). Section 304(a)(4) designates the following as
conventional pollutants: biochemical oxygen demand (BOD5), total suspended solids (TSS),
fecal coliform, pH, and any additional pollutants defined by the Administrator as conventional.
The Administrator designated oil and grease as an additional conventional pollutant on July 30,
1979 (44 FR 44501).
d. New Source Performance Standards (NSPS)--Section 306 of
the CWA
NSPS reflect effluent reductions that are achievable based on the best available
demonstrated control technology. New facilities have the opportunity to install the best and most
efficient production processes and wastewater treatment technologies. As a result, NSPS should
represent the greatest degree of effluent reduction attainable through the application of the best
available demonstrated control technology for all pollutants (i.e., conventional, non-
conventional, and priority pollutants). In establishing NSPS, EPA is directed to take into
consideration the cost of achieving the effluent reduction and any non-water quality
environmental impacts and energy requirements.
B. History of EPA Actions to Address CAFOs
EPA's regulation of wastewater and manure from CAFOs dates to the 1970s. The
existing NPDES CAFO regulations were issued on March 18,1976 (41 FR 11458). The existing
national effluent limitations guideline and standards for feedlots were issued on February 14,
1974 (39 FR. 5704).
By 1992, it became apparent that the regulation and permitting of CAFOs needed review
due to changes in the livestock industry, specifically the consolidation of the industry into fewer,
but larger operations. In 1992, the Agency established a workgroup composed of representatives
of State agencies, EPA regional staff and EPA headquarters staff to address issues related to
CAFOs. The workgroup issued The Report of the EPA/State Feedlot Workgroup in 1993. One
of the workgroup's recommendations was that the Agency should provide additional guidance on
to how CAFOs are regulated under the NPDES permit program. The Agency issued such
guidance, entitled Guide Manual On NPDES Regulations For Concentrated Animal Feeding
Operations, in December 1995.
15
-------
Massive spills of hog manure (see Section V.B.1.C) and Pfiesteria outbreaks (see Section
V.C.I.a.), continued industry consolidation, and increased public awareness of the potential
environmental and public health impacts of animal feeding operations resulted in EPA taking
more comprehensive actions to improve existing regulatory and voluntary programs. In 1997,
dialogues were initiated between EPA and the poultry and pork livestock sectors. On December
12,1997, the'Pork Dialogue participants, including representatives from the National Pork
Producers Council (NPPC) and officials from EPA, U.S. Department of Agriculture (USDA),
and several States, issued a Comprehensive Environmental Framework for Pork Production
Operations. Continued discussions between EPA and the NPPC led to development of a
Compliance Audit Program Agreement (CAP Agreement) that is available to any pork producer
who participates in NPPC's environmental assessment program. The CAP Agreement for pork
producers was issued by the Agency on November 24,1998. Under the agreement, pork
producers that voluntarily have their facilities inspected are eligible for reduced penalties for any
CWA violations discovered and corrected. The Poultry Dialogue produced a report in December
1998 that established a voluntary program focused on promoting protection of the environment
and water quality through implementation of litter management plans and other actions:
Environmental Framework and Implementation Strategy: A Voluntary Program Developed and
Adopted by the Poultry Industry, Adopted at the December 8-9,1998 meeting of the Poultry
Industry Environmental Dialogue (U.S. Poultry and Egg Association).
President Clinton and Vice President Gore announced the Clean Water Action Plan
(CWAP) on February 19,1998. The CWAP describes the key water quality problems our nation
faces today and suggests both a broad plan and specific actions for addressing these problems.
The CWAP indicated that polluted runoff is the greatest source of water quality problems in the
United States today and that stronger polluted runoff controls are needed. The CWAP goes on to
state that one important aspect of such controls is the expansion of CWA permit controls,
including those applicable to large facilities such as CAFOs.
The CWAP included two key action items that address animal feeding operations
(AFOs). First, it stated that EPA should publish and, upon considering public comments,
implement an AFO strategy for important and necessary EPA actions on standards and permits.
EPA published a Draft Strategy for Addressing Environmental and Public Health Impacts from
Animal Feeding Operations in March 1998 (draft AFO Strategy). In accordance with EPA's
draft AFO Strategy, EPA's Office of Enforcement and Compliance Assurance (OECA) also
issued the Compliance Assurance Implementation Plan for Animal Feeding Operations in March
1998. This plan describes compliance and enforcement efforts being undertaken to ensure that
CAFOs comply with existing CWA regulations. Second, the CWAP stated that EPA and USDA
should jointly develop a unified national strategy to minimize the water quality and public health
impacts of AFOs. EPA and USDA jointly published a draft Unified National Strategy for
Animal Feeding Operations (hereinafter Unified National AFO Strategy) on September 21,1998
and, after sponsoring and participating in 11 public listening sessions and considering public
comments on the draft strategy, published a final Unified National AFO Strategy on March 9,
16
-------
1999. This joint strategy was generally consistent with and superceded:
Strategy.
draft AFO
The Unified National AFO Strategy establishes national goals and performance
expectations for all AFOs. The general goal is for AFO owners and operators to take actions to
minimize water pollution from confinement facilities and land where manure is applied. To
accomplish this goal, the AFO Strategy established a national performance expectation that all
AFOs should develop and implement technically sound, economically feasible, and site-specific
comprehensive nutrient management plans (CNMPs) to minimize impacts on water quality and
public health.
The Unified National AFO Strategy identified seven strategic issues that should be
addressed to better resolve concerns associated with AFOs. These include: 1) fostering CNMP
development and implementation; 2) accelerating voluntary, incentive-based programs; 3)
implementing and improving the existing regulatory program; 4) coordinating research, technical
innovation, compliance assistance, and technology transfer; 5) encouraging industry leadership;
6) increasing data coordination; and 7) establishing better performance measures and greater
accountability. Today's proposed rule primarily addresses strategic issue three: implementing
and improving the existing AFO regulatory program.
The Unified National AFO Strategy observed that, for the majority of AFOs (estimated in
the AFO Strategy as 95 percent), voluntary efforts founded on locally led conservation,
education, and technical and financial assistance would be the principal approach for assisting
owners and operators in developing and implementing site-specific CNMPs and reducing water
pollution and public health risks. Future regulatory programs would focus permitting and
enforcement priorities on high risk operations, which were expected to constitute the remaining 5
percent. EPA estimates that today's proposal would result in permit coverage for approximately
7 percent of AFOs under the two-tier structure, and between 4.5 percent and 8.5 percent of AFOs
under the three-tier structure.
Following publication of the Unified National AFO Strategy, EPA issued on August 6,
1999 the Draft Guidance Manual and Example NPDES Permit for CAFOs for a 90-day public
comment period. EPA undertook development of this new guidance manual in order to provide
permit writers with improved guidance on applying the existing regulations to a changing
industry. While the guidance manual has not been finalized, many of the issues discussed in the
draft guidance manual are also addresses in today's preamble. EPA expects to issue final,
revised permitting guidance to reflect the revised CAFO regulations when they are published in
final form.
C. What Requirements Apply to CAFOs?
The discussion below provides an overview of the scope and requirements imposed under
the existing NPDES CAFO regulations and feedlot effluent limitations guidelines. It also
17
-------
explains the relationship of these two regulations, and summarizes other federal and State
regulations that potentially affect AFOs.
1. What are the Scope and Requirements of the Existing NPDES
Regulations for CAFOs?
Under existing 40 CFR 122.23, an operation must be defined as an animal feeding
operation (AFO) before it can be defined as a concentrated animal feeding operation (CAFO).
The term "animal feeding operation" is defined in EPA regulations as a "lot or facility" where
animals "have been, are, or will be stabled or confined and fed or maintained for a total of 45
days or more in any 12 month period and crops, vegetationf,] forage growth, or post-harvest
residues are not sustained in the normal growing season over any portion of the lot or facility."
This definition is intended to enable the NPDES authorized permitting authority to regulate
facilities where animals are stabled or confined and waste is generated.
Once a facility meets the AFO definition, its size, based upon the total numbers of
animals confined, is a key factor in determining whether it is a CAFO. To define these various
livestock sectors, EPA established the concept of an "animal unit" (AU), which varies according
to animal type. Each livestock type, except poultry, is assigned a multiplication factor to
facilitate determining the total number of AU at a facility with more than one animal type.
These multiplication factors are as follows: Slaughter and feeder cattle - 1.0, Mature dairy cattle -
1.4, Swine weighing over 25 kilograms (approximately 55 pounds) - 0.4, Sheep - 0.1, Horses -
2.0. There are currently no animal unit conversions for poultry operations. The regulations,
however, define the total number of animals (subject to waste handling technology restrictions)
for specific poultry types that make these operations subject to the regulation. (40 CFR Part 122,
Appendix B).
Under the existing regulations, an animal feeding operation is a concentrated animal
feeding operation if it meets the regulatory CAFO definition or if it is designated as a CAFO.
The regulations automatically define an AFO to be a CAFO if either more than 1,000 AU are
confined at the facility, or more than 300 AU are confined at the facility and: (1) pollutants are
discharged into navigable waters through a manmade ditch, flushing system, or other similar
man-made device; or (2) pollutants are discharged directly into waters that originate outside of
and pass over, across, or through the facility or come into direct contact with the confined
animals. However, no animal feeding operation is defined as a CAFO if it discharges only in the
event of a 25-year, 24-hour storm event (although it sill may be designated as a CAFO).
Although they are not automatically defined as a CAFO, facilities still may be designated as a
CAFO even if they discharge only in a 25-year, 24-hour storm event.
An AFO can also become a CAFO through designation. The NPDES permitting
authority may, on a case-by-case basis, after conducting an on-site inspection, designate any AFO
as a CAFO based on a finding that the facility "is a significant contributor of pollution to the
waters of the United States." (40 CFR 122.23(c)). Pursuant to 40 CFR 122.23(c)(l)(i)-(v) the
18
-------
permitting authority shall consider several factors making this determination, including: (1) the
size of the operation, and amount of waste reaching waters of the U.S.; (2) the location of the
operation relative to waters of the U.S.; (3) the means of conveyance of animal waste and process
waste waters into waters of the U.S.; and (4) the slope, vegetation, rainfall and other factors
affecting frequency of discharge. A facility with 300 animal units or less, however, may not be
designated as a CAFO unless pollutants are discharged into waters of the U.S. through a
man-made ditch, flushing system, or other similar man-made device, or are discharged directly
into waters of the U.S. which originate outside of the facility and pass over, across or through the
facility or otherwise come into direct contact with the animals confined in the operation.
Once defined or designated as a CAFO, the operation is subject to NPDES permitting.
As described above, a permit contains the specific technology-based effluent limitations (whether
based on the effluent guidelines or BPJ); water quality-based limits if applicable; specific best
management practices; monitoring and reporting requirements; and other standard NPDES
conditions.
2. What are the Scope and Requirements of the Existing Feedlot
Effluent Guidelines?
In 1974, EPA promulgated effluent limitations guidelines applicable to CAFOs (40 CFR
Part 412) and established in those regulations the technology-based effluent discharge standards
for the facilities covered by the guidelines. The effluent guidelines for the feedlots point source
category have two subparts: Subpart B for ducks, and Subpart A for all other feedlot animals.
Under the existing regulation, Subpart A covers: beef cattle; dairy cattle; swine; poultry; sheep;
and horses. Further, the effluent guidelines apply only to facilities with 1,000 AU or greater.
Today's revisions to the effluent guidelines affect only the guidelines for the beef, dairy, swine,
poultry and veal subcategories, while the NPDES revisions are applicable to all confined animal
types.
The current feedlot effluent guidelines based on BAT prohibit discharges of process
wastewater pollutants to waters of the U.S. except when chronic or catastrophic storm events
cause an overflow from a facility designed, constructed, and operated to hold process-generated
wastewater plus runoff from a 25-year, 24-hours storm event. Animal wastes and other
wastewater that must be controlled include: (1) spillage or overflow from animal or poultry
watering systems, washing, cleaning, or flushing pens, barns, manure pits, or other feedlot
facilities, direct contact swimming, washing, or spray cooling of animals, and dust control; and
(2) precipitation (rain or snow) which comes into contact with any manure, litter, or bedding, or
any other raw material or intermediate or final material or product used in or resulting from the
production of animals or poultry or direct products (e.g., milk or eggs). 40 CFR 412.11.
As described above, in those cases where the feedlot effluent guidelines do not apply to a
CAFO (i.e., the operation confines fewer than 1,000 animal units), the permit writer must
19
-------
develop, for inclusion in the NPDES permit, technology-based limitations based on best
professional judgement (BPJ).
3. What Requirements May be Imposed on AFOs Under the Coastal
Zone Act Reauthorization Amendments of 1990 (CZARA)?
In the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA), Congress
required States with federally-approved coastal zone management programs to develop and
implement coastal nonpoint pollution control programs. Thirty-three (33) States and Territories
currently have federally approved Coastal Zone Management programs. Section 6217(g) of
CZARA called for EPA, in consultation with other federal agencies, to develop guidance on
"management measures" for sources of nonpoint source pollution in coastal waters. In January
1993, EPA issued its Guidance Specifying Management Measures for Sources of Nonpoint
Pollution in Coastal Waters which addresses five major source categories of nonpoint pollution:
urban runoff, agriculture runoff, forestry runoff, marinas and recreational boating, and
hydromodification.
Within the agriculture runoff nonpoint source category, the EPA guidance specifically
included management measures applicable to all new and existing "confined animal facilities."
The guidance identifies which facilities constitute large and small confined animal facilities
based solely on the number of animals or animal units confined (the manner of discharge is not
considered). Under the CZARA guidance: a large beef feedlot contains 300 head or more, a
small feedlot between 50-299 head; a large dairy contains 70 head or more, a small dairy between
20-69 head; a large layer or broiler contains 15,000 head or more, a small layer or broiler
between 5,000-14,999 head; a large turkey facility contains 13,750 head or more, a small turkey
facility between 5,000-13,749 head; and a large swine facility contains 200 head or more, a small
swine facility between 100-199 head.
The thresholds in the CZARA guidance for identifying large and small confined animal
facilities are lower than those established for defining CAFOs under the current NPDES
regulations. Thus, in coastal States the CZARA management measures potentially apply to a
greater number of small facilities than the existing CAFO definition. Despite the fact that both
the CZARA management measures for confined animal facilities and the NPDES CAFO
regulations address similar operations, these programs do not overlap or conflict with each other.
Any CAFO facility, defined by 40 CFR Part 122, Appendix B, that has a NPDES CAFO permit
is exempt from the CZARA program. If a facility subject to CZARA management measures is
later designated a CAFO by a NPDES permitting authority, the facility is no longer subject to
CZARA. Thus, an AFO cannot be subject to CZARA and NPDES permit requirements at the
same time.
EPA's CZARA guidance provides that new confined animal facilities and existing large
confined animal facilities should limit the discharge of facility wastewater and runoff to surface
waters by storing such wastewater and runoff during storms up to and including discharge caused
20
-------
by a 25-year, 24-hour frequency storm. Storage structures should have an earthen or plastic
lining, be constructed with concrete, or constitute a tank. All existing small facilities should
design and implement systems that will collect solids, reduce contaminant concentrations, and
reduce runoff to minimize the discharge of contaminants in both facility wastewater and in runoff
caused by storms up to and including a 25-year, 24-hour frequency storm. Existing small
facilities should substantially reduce pollutant loadings to ground water. Both large and small
facilities should also manage accumulated solids in an appropriate waste utilization system.
Approved State CZARA programs have management measures in conformity with this guidance
and enforceable policies and mechanisms as necessary to assure their implementation.
In addition to the confined animal facility management measures, the CZARA guidance
also includes a nutrient management measure that is intended to be applied by States to activities
associated with the application of nutrients to agricultural lands (including the application of
manure). The goal of this management measure is to minimize edge of field delivery of nutrients
and minimize the leaching of nutrients from the root zone.
The nutrient management measures provide for the development, implementation, and
periodic updating of a nutrient management plan. Such plans should address: application of
nutrients at rates necessary to achieve realistic crop yields; improved timing of nutrient
application; and the use of agronomic crop production technology to increase nutrient use
efficiency. Under this management measure, nutrient management plans include the following
core components: farm and field maps showing acreage, crops, and soils; realistic yield
expectations for the crops to be grown; a summary of the nutrient resources available to the
producer; an evaluation of field limitations based on environmental hazards or concerns; use of
the limiting nutrient concept to establish the mix of nutrient sources and requirements for the
crop based on realistic crop expectations; identification of timing and application methods for
nutrients; and provisions for proper calibration and operation of nutrient application equipment.
4. How Are CAFOs Regulated By States?
NPDES permits may be issued by EPA or a State authorized by EPA to implement the
NPDES program. Currently, 43 States and the Virgin Islands are authorized to administer the
NPDES program. Oklahoma, however, has not been authorized to administer the NPDES
program for CAFOs.
To become an authorized NPDES state, the State's requirements must, at a minimum, be
as stringent as the requirements imposed under the federal NPDES program. States, however,
may impose requirements that are broader in scope or more stringent than the requirements
imposed at the federal level. In States not authorized to implement the NPDES program, the
appropriate EPA Regional office is responsible for implementing the program.
State efforts to control pollution from CAFOs have been inconsistent to date for a variety
of reasons. Many States have only recently focused attention on the environmental challenges
21
-------
posed by the emergence of increasing consolidation of CAFOs into larger and larger operations.
Others have traditionally viewed AFOs as agriculture, and the reluctance to regulate agriculture
has prevented programs from keeping pace with a changing industry. Many states have limited
resources for identifying which facilities are CAFOs, or which may be inappropriately claiming
the 25-year, 24-hour storm permit exclusion. Some states with a large number of broiler and
laying operations do not aggressively try to permit these facilities under NPDES because the
technology requirements for these operations in the existing regulation are outdated.
Another reason States may not have issued NPDES permits to CAFOs is the concern over
potentially causing operations to lose cost-share money available under EPA's Section 319
Nonpoint Source Program and other assistance under USDA's Environmental Quality Incentive
Program (EQIP). Once a facility is considered a point source under NPDES, the operation is not
eligible for cost sharing under the Section 319 nonpoint source program. The USDA EQIP
program, however, is available to most facilities, and being a permitted CAFO is not a reason for
exclusion from the EQIP program. Although EQIP funds may not be used to pay for
construction of storage facilities at operations with greater than 1,000 USDA animal units
(USDA uses a different definition of animal units than EPA); EQIP is available to these facilities
for technical assistance and financial assistance for other practices.
To gather information on State activities concerning AFOs, EPA assembled information
into a report entitled, "State Compendium: Programs and Regulatory Activities Related to
Animal Feeding Operations, Final Report," dated December 1999, and continues to update
information concerning state operations (see "Profile of NPDES Permits and CNMP Permit
Requirements for CAFOs," updated periodically). The following discussion draws on
information from these reports.
EPA estimates that, under the existing EPA regulations, approximately 9,000 operations
with more than 1,000 AU are CAFOs and should be permitted, and approximately 4,000
operations with 300 AU to 1,000 AU should be permitted. However, only an estimated 2,520
CAFOs are currently covered under either a general permit or an individual permit. The 43 states
authorized to implement the NPDES program for CAFOs have issued coverage for
approximately 2,270 facilities, of which about 1,150 facilities are under general permits and
about 1,120 facilities are under individual permits. Of these states, 32 states administer their
NPDES CAFO program in combination with some other State permit, license, or authorization
program. Often, this additional State authorization is a construction or operating permit. Eight
of the states regulate CAFOs exclusively under their State NPDES authority, while three others
have chosen to regulate CAFOs solely under State non-NPDES programs. EPA information
indicates that, as of December, 1999, seventeen of the 43 states authorized to administer the
NPDES program for CAFOs have never issued an NPDES permit to a CAFO.
Of the seven states not authorized to administer the NPDES program, four rely solely on
federal NPDES permits to address CAFOs. As of December 1998, EPA has issued coverage for
approximately 250 facilities under general NPDES permits.
22
-------
Virtually all NPDES authorized states use the federal CAFO definition in their State
NPDES CAFO program. Most states also use the federal definition for State non-NPDES CAFO
programs. Five States, however, have developed unique definitions for their non-NPDES
livestock regulatory programs that do not follow the federal definition. These five States
typically base their definition on the number of animals confined, weight of animals and design
capacity of waste control system, or gross income of agricultural operation. For example,
Alabama's new general State NPDES permit covers all operations with at least 250 animal units.
Similarly, Minnesota issues State (non-NPDES) feedlot permits to facilities with more than 10
animal units. Minnesota also issues individual NPDES permits to CAFOs as defined under the
existing federal regulations.
The regulation of CAFOs is challenging, in part, because of the large number of facilities
across the country. There are approximately 376,000 AFOs. Regulating, for example, 5 percent
of AFOs would result in some 18,800 permittees. One way of reducing the administrative
burden associated with permitting such large numbers of facilities is through the use of genera]
permits. NPDES regulations provide that general permits may be issued to cover a category of
dischargers that involves similar operations with similar wastes. Operations subject to the same
effluent limitations and operating conditions, and requiring similar monitoring are the types of
facilities most appropriately regulated under a general permit. EPA and some authorized States
are using general permits to regulate CAFOs, and this trend appears to be increasing.
As mentioned, seventeen of the 43 States authorized to issue NPDES CAFO permits have
never issued an NPDES permit to a CAFO, although many regulate CAFOs under non-NPDES
programs. Under current regulations, an animal feeding operation that discharges only in the
event of a 25-year, 24-hour storm event is not considered to meet the definition of a CAFO
(although it may still be designated as a CAFO). EPA believes that many of these facilities have
in fact discharged in circumstance other than the 25-year/24-hour storm and should be required to
obtain a permit.
The number of non-NPDES permits issued to AFOs greatly exceeds the number of
NPDES permits issued. Although the information may be incomplete on the number of state
permits issued, more than 45,000 non-NPDES permits or formal authorizations are known to
have been issued through state AFO programs. The non-NPDES State authorizations often are
only operating permits or approvals required for construction of waste disposal systems. While
some impose terms and conditions on discharges from the CAFO, EPA believes that many would
not meet the standards for approval as NPDES permits. Because these are not NPDES permits,
none meet the requirement for federal enforceability.
Minnesota alone has issued nearly 25,000 State feedlot permits. Kansas has issued more
than 2,400 State permits, of which 1,500 have been to facilities with more than 300 animal units.
Indiana has issued more than 4,000 letters of approval to AFOs within the State. South Carolina
has issued 2,000 construction permits.
23
-------
With regard to the discharge standards included in permits, 28 NPDES authorized States
have adopted the federal feedlot effluent guidelines, while five authorized States use a more
stringent limit. These more stringent limits partially or totally prohibit discharges related to
storm events. For example, Arkansas regulations prohibit discharges from liquid waste
management systems, including those resulting from periods of precipitation greater than the 25-
year, 24-hour storm event. In addition, California and North Carolina rules provide for no
discharge from new waste control structures even during 100 year storms. Numerous State
CAFO permit programs also impose requirements that are broader in scope than the existing
federal CAFO regulations.
Twenty-two States have adopted laws that their environmental regulations cannot be
more restrictive than the specific requirements in the federal regulations. Should any of these
states experience environmental problems with CAFOs, they must rely on appropriate state
regulations no more stringent than the federal rules.
Thirty-four States explicitly impose at least some requirements that address land
application of manure and wastewater as part of either their NPDES or non-NPDES program.
The most common requirements among these States is that CAFO manure and wastewater, when
managed through land application, be land applied in accordance with agronomic rates and that
the operator develop and use a waste management plan. Although some States do not address
how agronomic rates should be determined, many base it on the nitrogen needs of crops, while
some require consideration of phosphorus as well. The complexity of waste management plans
also varies between states. Some states have very detailed requirements for content of waste
management plans, while others do not. Generally, CAFO operators are asked to address
estimates of annual nutrient value of waste, schedules for emptying and applying wastes, rates
and locations for applying wastes, provisions for determining agronomic rates, and provisions for
conducting required monitoring and reporting.
Although data was not available for all States, State agency staff dedicated to AFOs has
increased over the last five years. In general, State staff dedicated to AFOs is relatively small,
with average staff numbers being below four full-time employees. Several States do not have
any staff specifically assigned to manage water quality impacts from AFOs. However, States
such as Arkansas, Minnesota, Wisconsin, and Nebraska doubled their staff commitment to AFOs
within the last five years. The most notable increases in State staff assigned to address AFOs
were in Iowa and North Carolina. Kansas, Minnesota, and North Carolina have the largest AFO
staffs in the country, with each having more than 20 full time employees.
One indication that States have an increasing interest in expanding their efforts to control
water quality impacts from AFOs is the promulgation of new State AFO regulations and program
initiatives. At least twelve states have developed new regulations related to AFOs since 1996.
(AL, IN, KS, KY, MD, MS, NC, OK, PA, VT, WA, WY). Kansas, Kentucky, North Carolina,
and Wyoming passed legislation regarding swine facilities, with Kentucky and North Carolina
imposing moratoriums on the expansion of hog AFOs until State management/regulatory plans
24
-------
could be developed. Similarly, Mississippi also has imposed a 2-year moratorium on any new
CAFOs. Alabama's recent efforts include developing an NPDES general permitting rule and a
Memorandum of Agreement with EPA outlining State agency responsibilities as they relate to
CAFOs. Washington's Dairy Law subjects all dairy farms with more than 300 animal units to
permitting and requires each facility to develop nutrient management plans approved by the
National Conservation Resource Service. Indiana's Confined Feeding Control Law also requires
AFOs to develop waste management plans and receive State approval for operating AFOs.
In conclusion, the implementation of CAFO programs varies from state-to-state, as does
the implementation of NPDES programs for CAFOs by NPDES authorized states. As animal
production continues to become more industrialized nationwide, a coherent and systematic
approach to implementing minimum standards is needed to ensure consistent protection of water
quality. Today's proposal will continue to promote a systematic approach to establishing
industry standards that are protective of human health and the environment.
D. How Do Today's Proposed Revisions Compare to the Unified National AFO
Strategy?
As described in section IHB, on March 9,1999, EPA and the U.S. Department of
Agriculture jointly issued the Unified National Strategy for Animal Feeding Operations (Unified
AFO Strategy), which outlined USDA andEPA's plans for achieving better control of pollution
from animal agriculture under existing regulations. The following is a comparison chart that
illustrates how the proposed rule compares to the Unified AFO Strategy. Table 3-1 compares the
proposed CAFO rule requirements with the Unified AFO Strategy and identifies whether the
proposed requirements are consistent with or not addressed by the Unified AFO Strategy. The
table further shows that, overall, the proposed rule meets the intent of the Unified AFO Strategy.
25
-------
I
L.
5
a
&
V
CC
a
.£
I
"8
£
"S
D
1
n.
£
a.
£
I
"8*8
Be
islpl
a
O
g
I
i
i
2
o
•g
(19
0.
Z
U
0
g i
o
If
to
ES Rcg
Z
£
«9
!
gy
ied AFO
and 3.2)
The Un
ec. 3.
h
(Se
guage not expl
C
n
R.§
ts "5. d
SN B. ao
111
Q < U
cs ~
SI
^ta*' «•.
!!
B
£s
II
«*
;e u
11
|
|
1
_c
i
citly add
ls not
an
.
O 5
^ ft
M
§•§
S °
«> "u
-------
•8 5
g GJ
I |
"i «'
-o u
E —
o in
I 8
if
If
~ t.
I.E
us a
.
CD w.
.•a CM
"
>
'•&
= « U
'> « «^
ill
No
ay
O.
Designation as a CAFO (122.23(b)
In authorized States EPA
designate an AFO as a CA
C
"8
aS
1-8
.2? >,
lid
fls
req
inspecti
facility that
designated as a
'S "o. o
S ex e
g « o
111
s •« i
ilL
a E-o £?
e «> « «
*l-
t?»
I si I
ls£|
O cvi a o.
iS^g
-------
ra
I I
a «
J6 =
E
111
.
'a 3 I
•I-S
£
II
• s .= a
^ S-g-c
fi := « 3
„ _ 3
S n =
2 a. 2
*il
>>P
epU.
S
11 S
•S
S
"8 1 a
*
m-
Sbilfe
^S § "-^1
g« S -5 .5 - g
^ 8 M " £ «
1 S e
x
mm
^B -g =5 S 5
§ % .!£ & g §
<: u -a n ? o
5 £ §
T,M*
§ * >. -p
lS*t
•2«gh5 ^i1
s 4sr> «, »; .
Is
n M
u >.
Si
/4F(?J wof defined or desi
( 1 22.23(g)) - AFOs subj
permitting requirements i
discrete conveyance (i.e.,
io
uct
t en
rod
discharge from p
application that is
water.
jls
•8
ion
point
int
to
lt
d application
Land applicati
s i
in
prac
Non-AFO
(I22.23(h
inconsistent wi
412.3 1 (b) and
)
ischarge of pollutants
of the US may be destgna
22.26(a)(D(v).
source di
Waters
QO
CM
-------
Comment
11 IB
l|l!|
Isjpf
a 3 «
i
i
S
£
cc
|| «
jg .C .—
jy *jj ^« M
2 * '« O
If IS*
** K ,.
C/3 C
0^
u. •£
< 5
•5 -go
S ^<
c c .
= =2^
u c c
?= e ^
r- o —
\
CAFO permit requirement
(122.23(i)(2)) - CAFOs subject to
effluent guidelines if applicable.
«•*
i2
E 3 •
i!5
|jl
4i ii •
T3 -H &
!&~
vides that all AFOs sd
i should address land ;
ility and public health.
f* j" ra
i-l §•
g3g«
w U «
n .c 5
— y =
CS} y c
2 * £
<~ s.
*l-i
1*1
\
CAFO permit requirement (122.23Q))
- Prohibits land application of manure
that would not serve agricultural
purpose and would likely result in
pollutant discharge to waters of the
U.S.
£8
I ?>
5? V
S •£
fl
g? «,
">>£
'5 ^ •
W ^J X"S
*u c CQ
I!E
it*
o ? *^C
l||
^ 3 Ift
CO Z SH^
•z i .
fc- O *te
CO H O
o i o
UN BO v
^ « f
C £ c
111
U *o
^ ^ «
H *S J=
^
CAFO permit requirement
(122.23(j)(4)) - Permittee must either
provide information to recipient or,
under one co-proposal option, obtain
certification that recipient will land
apply per Permit Nutrient Plan (PNP),
obtain permit, use for other purpose,
or transfer to 3"* party.
„
«•? 8
u >
U{fl •"••
.« *""* ttj
C. 2:
«•• i^ j
2 5 • -S
,S2 « *
11 f
J* 1
es EPA will consider
rements for permitted
vides records should 1
1'i |
Q c £
i c j|
55 Q. « .
UU LU *<»
<* *H ^C '
eg o
Hi !l
^
CAFO permit requirement -
(122.23(j)(5)) - Permit must require
specified recordkeeping.
OS
CM
-------
1^
« F O
& 'E b.
x
UnifiedAFOS
•a
•a
c.
x
u
Closur
maintai
wastes
CAFO.
i
s
I
I-
C '
'i
T3
•s
g
o
ro
S
«i
O
co
0
I
•S .i 3 * E
ml!
g *"! £ o s
"^ C '~ tt
«> •= Z o ^-
1 l«ll
*
a. S •£
=5
-------
-------
IV. Why is EPA Changing the Effluent Guidelines for Feedlots and the NPDES CAFO
Regulations?
A. Main Reasons For Revising the Existing Regulations
Despite more than twenty years of regulation, there are persistent reports of discharge and
runoff of manure and manure nutrients from livestock and poultry operations. While this is
partly due to inadequate compliance with existing regulations, EPA believes that the regulations
themselves also need revision. Today's proposed revisions to the existing effluent guidelines and
NPDES regulations for CAFOs are expected to mitigate future water quality impairment and the
associated human health and ecological risks by reducing pollutant discharges from the animal
production industry.
EPA's proposed revisions also address the changes that have occurred in the animal
production industries in the United States since the development of the existing regulations. The
continued trend toward fewer but larger operations, coupled with greater emphasis on more
intensive production methods and specialization, is concentrating more manure nutrients and
other animal waste constituents within some geographic areas. This trend has coincided with
increased reports of large-scale discharges from these facilities, and continued runoff that is
contributing to the significant increase in nutrients and resulting impairment of many U.S.
waterways.
EPA's proposed revisions of the existing regulations will make the regulations more
effective for the purpose of protecting or restoring water quality. The revisions will also make
the regulations easier to understand and better clarify the conditions under which an AFO is a
CAFO and, therefore, subject to the regulatory requirements of today's proposed regulations.
B. Water Quality Impairment Associated with Manure Discharge and Runoff
EPA has made significant progress in implementing CWA programs and in reducing
water pollution. Despite such progress, however, serious water quality problems persist
throughout the country. Agricultural operations, including CAFOs, are considered a significant
source of water pollution in the United States. The recently released National Water Quality
Inventory: 1998 Report to Congress was prepared under Section 305(b) of the Clean Water Act.
Under this section of the Act, States report their impaired water bodies to EPA, including the
suspected sources of those impairments. The most recent report indicates that the agricultural
sector (including crop production, pasture and range grazing, concentrated and confined animal
feeding operations, and aquaculture) is the leading contributor to identified water quality
impairments in the nation's rivers and streams, and also the leading contributor in the nation's
lakes, ponds, and reservoirs. Agriculture is also identified as the fifth leading contributor to
identified water quality impairments in the nation's estuaries. 1998 National Water Quality
Inventory results are illustrated in table 4-1 below.
32
-------
Table 4-1. Five Leading Sources of Water Quality Impairment in the United States
Rank
1
2
3
4
5
Rivers
Agriculture (59%)
Hydro modification (20%)
Urban Runoff/ Storm
Sewers (11%)
Municipal Point Sources
(10%)
Resource Extraction (9%)
Lakes
Agriculture (31%)
Hydro modification (15%)
Urban Runoff/Storm Sewers
(12%)
Municipal Point Sources (11%)
Atmospheric Deposition (8%)
Estuaries
Municipal Point Sources (28%)
Urban Runoff / Storm Sewers
(28%)
Atmospheric Deposition (23%)
Industrial Discharges (15%)
Agriculture (15%)
Source: National Water Quality Inventory: 1998 Report to Congress, USEPA, 2000.
Percentage of impairment attributed to each source is shown in parentheses. For example, agriculture is listed as
a source of impairment in 59 percent of impaired river miles. The portion of "agricultural" impairment
attributable to animal waste (as compared to crop production, pasture grazing, range grazing, and aquaculture) is
not specified in this value. Figure totals exceed 100 percent because water bodies may be impaired by more than
one source.
Table 4-2 presents additional summary statistics of the 1998 National Water Quality
Inventory. These figures indicate that the agricultural sector contributes to the impairment of at
least 170,000 river miles, 2.4 million lake acres, and almost 2,000 estuarine square miles.
Twenty-eight states and tribes identified specific agricultural sector activities contributing to
water quality impacts on rivers and streams, and 16 states and tribes identified specific
agricultural sector activities contributing to water quality impacts on lakes, ponds, and reservoirs.
CAFOs are a subset of the agriculture category. For rivers and streams, estimates from these
states indicate that 16 percent of the total reported agricultural sector impairment is from the
animal feeding operation industry (including feedlots, animal holding areas, and other animal
operations), and 17 percent of the agricultural sector impairment is from both range and pasture
grazing. For lakes, ponds, and reservoirs, estimates from these states indicate that 4 percent of
the total reported agricultural sector impairment is from the animal feeding operation industry,
and 39 percent of the agricultural sector impairment is from both range and pasture grazing.
Impairment due specifically to land application of manure was not reported.
33
-------
Table 4-2. Summary of U.S. Water Quality Impairment Survey
Total Quantity in U.S.
Rivers
3,662,255 miles
Lakes, Ponds, and Reservoirs
4 1.6 million acres
Estuaries
90.465 square miles
Waters Assessed
23% of total
840,402 miles
42% of total
17.4 million acres
32% of total
28,687 square miles
Quantity Impaired by
All Sources
35% of assessed
291,263 miles
45% of assessed
7.9 million acres
44% of assessed
12,482 square miles
Quantity Impaired by
Agriculture *
59% of impaired
170,750 miles
31% of impaired
2,417,801 acres
15% of impaired
1,827 square miles
Source: National Water Quality Inventory: 1998 Report to Congress, USEPA, 2000.
a CAFOs are a subset of the agriculture category.
Table 4-3 below lists the leading pollutants impairing surface water quality in the United
States as identified in the 1998 National Water Quality Inventory. The animal production
industry is a potential source pf all of these, but is most commonly associated with nutrients,
pathogens, oxygen-depleting substances, and solids (siltation). Animal production facilities are
also a potential source of the other leading causes of water quality impairment, such as metals
and pesticides, and can contribute to the growth of noxious aquatic plants due to the discharge of
excess nutrients. Animal production facilities may also contribute loadings of priority toxic
organic chemicals and oil and grease, but to a lesser extent than other pollutants.
Table 4-3. Five Leading Causes of Water Quality Impairment in the United States
Rank
1
2
3
4
5
Rivers
Siltation (38%)
Pathogens (36%)
Nutrients (29%)
Oxygen-Depleting Substances
(23%)
Metals (21%)
Lakes
Nutrients (44%)
Metals (27%)
Siltation (15%)
Oxygen-Depleting Substances
(14%)
Suspended Solids (10%)
Estuaries
Pathogens (47%)
Oxygen-Depleting Substances
(42%)
Metals (27%)
Nutrients (23%)
Thermal Modifications (18%)
Source: National Water Quality Inventory: 1998 Report to Congress, USEPA, 2000.
Percent impairment attributed to each pollutant is shown in parentheses. For example, siltation is listed as a
cause of impairment in 51 percent of impaired river miles. All of these pollutants except thermal modifications
are commonly associated with animal feeding operations to varying degrees, though they are also attributable to
other sources. Figure totals exceed 100 percent because water bodies may be impaired by more than one source.
Pollutants associated with animal production can also originate from a variety of other
sources, such as cropland, municipal and industrial wastewater discharges, urban runoff, and
34
-------
septic systems. The national analyses described in Section V of this preamble are useful in
assessing the significance of animal waste as a potential or actual contributor to water quality
degradation across the United States. Section V also discusses the environmental impacts and
human health effects associated with the pollutants found in animal manure.
C. Recent Changes in the Livestock and Poultry Industry
EPA's proposed revisions of the existing effluent guidelines and NPDES regulations take
into account the major structural changes that have occurred in the livestock and poultry
industries since the 1970s when the regulatory controls for CAFOs were first instituted. These
changes include:
• Increased number of animals produced annually;
• Fewer animal feeding operations and an increase in the share of larger operations
that concentrate more animals, manure and wastewater in a single location;
• Geographical shifts in where animals are produced; and
• Increased coordination between animal feeding operations and processing firms.
1. Increased Livestock and Poultry Production
Since the 1970s, total consumer demand for meat, eggs, milk and dairy products has
continued to increase. To meet this demand, U.S. livestock and poultry production have risen
sharply, resulting in an increase in the number of animals produced and the amount of manure
and wastewater generated annually.
Increased sales from U.S. farms is particularly dramatic in the poultry sectors, as reported
in the Census of Agriculture (various years). In 1997, turkey sales totaled 299 million birds. In
comparison, 141 million turkeys were sold for slaughter in 1978. Broiler sales totaled 6.4 billion
chickens in 1997, up from 2.5 billion chickens sold in 1974. The existing CAFO regulations
effectively do not cover broiler operations because they exclude operations that use dry manure
management systems. Red meat production also rose during the 1974-1997 period. The number
of hogs and pigs sold increased from 79.9 million hogs in 1974 to 142.6 million hogs in 1997.
Sales data for fed cattle (i.e., USDA's data category on "cattle fattened on grain and
concentrates") for 1975 show that 20.5 million head were marketed. By 1997, fed cattle
marketings totaled 22.8 million head. The total number of egg laying hens rose from 0.3 million
birds in 1974 to 0.4 million birds in 1997. The number of dairy cows on U.S. farms, however,
dropped from more than 10.7 million cows to 9.1 million cows over the same period.
35
-------
Not only are more animals produced and sold each year, but the animals are also larger in
size. Efficiency gains have raised animal yields in terms of higher average slaughter weight.
Likewise, production efficiency gains at egg laying and dairy operations have resulted in higher
per-animal yields of eggs and milk. USDA reports that the average number of eggs produced per
egg laying hen was 218 eggs per bird in 1970 compared to 255 eggs per bird in 1997. The
National Milk Producers Federation reports that average annual milk production rose from under
10,000 pounds per cow in 1970 to more than 16,000 pounds per cow in 1997. In the case of milk
production, these efficiency gains have allowed farmers to maintain or increase production levels
with fewer animals. Although animal inventories at dairy farms may be lower, however, this
may not necessarily translate to reduced manure volumes generated because higher yields are
largely attributable to improved and often more intensive feeding strategies that may exceed the
animal's ability for uptake. This excess is not always incorporated by the animal and may be
excreted.
2. Increasing Share of Larger, More Industrialized Operations
The number of U.S. livestock and poultry operations is declining due to ongoing
consolidation in the animal production industry. Increasingly, larger, more industrialized, highly
specialized operations account for a greater share of all animal production. This has the effect of
concentrating more animals, and thus more manure and wastewater, in a single location, and
raising the potential for significant environmental damages unless manure is properly stored and
handled.
USDA reports that there were 1.1 million livestock and poultry farms in the United States
in 1997, about 40 percent fewer than the 1.7 million farms reported in 1974. Farms are closing,
especially smaller operations that cannot compete with large-scale, highly specialized, often
lower cost, producers. Consequently, the livestock and poultry industries are increasingly
dominated by larger operations. At the same time, cost and efficiency considerations are pushing
farms to become more specialized and intensive. Steep gains in production efficiency have
allowed fanners to produce more with fewer animals because of higher per-animal yields and
quicker turnover of animals between farm production and consumer market. As a result, annual
production and sales have increased, even though the number of animals on farms at any one
time has declined (i.e., an increase in the number of marketing cycles over the course of the year
allows operators to maintain production levels with fewer animals at any given time, although the
total number of animals produced by the facility over the year may be greater).
The increase in animal densities at operations is evident by comparing the average
number of animals per operation between 1974 and 1997, as derived from Census of Agriculture
data. In the poultry sectors, the average number of birds across all operations is four to five times
greater in 1997 than in 1974. In 1997, the number of broilers per operation averaged 281,700
birds, up from 73,300 birds in 1974. Over the same period, the average number of egg laying
hens per operation rose from 1,100 layers to 5,100 layers per farm, and the average number of
turkeys per operation rose from 2,100 turkeys to 8,600 turkeys. The average number of hogs
36
-------
raised per operation rose from under 100 hogs to more than 500 hogs between 1974 and 1997.
The average number of fed cattle and dairy cows per operation more than doubled during the
period, rising to nearly 250 fed cattle and 80 milking cows by 1997.
This trend toward fewer, larger, and more industrialized operations has contributed to
large amounts of manure being produced at a single geographic location. The greatest potential
risk is from the largest operations with the most animals given the sheer volume of manure
generated at these facilities. Larger, specialized facilities often do not have an adequate land base
for manure disposal through land application. A USDA analysis of 1997 Census data shows that
animal operations with more than 1,000 AU account for more than 42 percent of all confined
animals but only 3 percent of cropland held by livestock and poultry operations. As a result,
large facilities need to store significant volumes of manure and wastewater which have the
potential, if not properly handled, to cause significant water quality impacts. By comparison,
smaller operations manage fewer animals and tend to concentrate less manure at a single farming
location. Smaller operations also tend to be more diversified, engaging in both animal and crop
production. These operations often have sufficient cropland and fertilizer needs to land apply
manure generated by the farm's livestock or poultry business, without exceeding that land's
nutrient requirements.
Another recent analysis from USDA confirms that as animal production operations have
become larger and more specialized operations, the opportunity to jointly manage animal waste
and crop nutrients has decreased. Larger operations typically have inadequate land available for
utilizing manure nutrients. USDA estimates that the amount of nitrogen from manure produced
by confinement operations increased about 20 percent between 1982 and 1997, while average
acreage on livestock and poultry farms declined. Overall, USDA estimates that cropland
controlled by operations with confined animals has the assimilative capacity to absorb about 40
percent of the calculated manure nitrogen generated by these operations. EPA expects this
excess will need to be transported offsite.
3. Geographic Shifts in Where Animal are Raised
During the 1970s, the majority of farming operations were concentrated in rural,
agricultural areas and manure nutrients generated by animal feeding operations were readily
incorporated as a fertilizer for crop production. In an effort to reduce transportation costs and
streamline distribution between the animal production and food processing sectors, livestock and
poultry operations have tended to cluster near slaughtering and manufacturing plants as well as
near end-consumer markets. Ongoing structural and technological change in these industries also
influences where facilities operate and contributes to locational shifts from the more traditional
farm production regions to the more emergent regions.
Operations in more traditional producing states tend to grow both livestock and crops and
tend to have adequate cropland for land application of manure. Operations in these regions also
tend to be smaller in size. In contrast, confinement operations in more emergent areas, such as
37
-------
hog operations in North Carolina or dairy operations in the Southwest, tend to be larger in size
and more intensive types of operations. These operations tend to be more specialized and often
do not have adequate land for application of manure nutrients. Production is growing rapidly in
these regions due to competitive pressures from more specialized producers who face lower per-
unit costs of production. This may be shifting the flow of manure nutrients away from more
traditional agricultural areas, often to areas where these nutrients cannot be easily absorbed.
As reported by Census data, shifts in where animals are grown is especially pronounced
in the pork sector. Traditionally, Iowa has been the top ranked pork producing state. Between
1982 and 1997, however, the number of hogs raised in that state remained relatively constant
with a year-end inventory average of about 14.2 million pigs. Li comparison, year-end hog
inventories in North Carolina increased from 2.0 million pigs in 1982 to 9.6 million pigs in 1997.
This locational shift has coincided with reported nutrient enrichment of the waters of the Pamlico
Sound in North Carolina. Growth in hog production also occurred in other emergent areas,
including South Dakota, Oklahoma, Wyoming, Colorado, Arizona, and Utah. Meanwhile,
production dropped in Illinois, Indiana, Wisconsin, and Ohio.
The dairy industry has seen similar shifts in where milk is produced, moving from the
more traditional Midwest and Northeast states to the Pacific and Southwestern states. Between
1982 and 1997, the number of milk cows in Wisconsin dropped from 1.9 million to 1.3 million.
Milk cow inventories have also declined in other traditional states, including Illinois, Indiana,
Iowa, Minnesota, Missouri, New York, Pennsylvania, Ohio, Connecticut, Maryland, and
Vermont. During the same period, milk cow inventories in California rose from 0.9 million in
1982 to 1.4 million in 1997. In 1994, California replaced Wisconsin as the top milk producing
state. Milk cow inventories have also increased in Texas, Idaho, Washington, Oregon, Colorado,
Arizona, Nevada, and Utah. These locational shifts have coincided with reported nutrient
enrichment of waters, including the Puget Sound and Tillamook Bay in the northwest, the
Everglades in Florida, and Erath County in Texas, and also elevated salinity levels due to excess
manure near milk production areas in southern California's Chino Basin.
4. Increased Linkages between Animal Production Facility and Food
Processors
Over the past few decades, closer ties have been forged between growers and various
industry middlemen, including packers, processors, and cooperatives. Increased integration and
coordination is being driven by the competitive nature of agricultural production and the
dynamics of the food marketing system, in general, as well as seasonal fluctuations of
production, perishability of farm products, and the inability to store and handle raw farm output.
Closer ties between the animal production facility and processing firms—either through
contractual agreement or through corporate ownership of CAFOs—raises questions of who is
responsible for ensuring proper manure disposal and management at the animal feeding site.
This is especially true given the current trend toward larger animal confinement operations and
38
-------
the resultant need for increased animal waste management. As operations become larger and
more specialized, they may contract out some phases of the production process.
Fanners and ranchers have long used contracts to market agricultural commodities.
However, increased use of production contracts is changing the organizational structure of the
individual industries. Under a production contract, a business other than the feedlot where the
animals are raised and housed, such as a processing firm, feed mill, or animal feeding operation,
may own the animals and may exercise further substantial operational control over the operations
of the feedlot. In some cases, the processor may specify in detail the production inputs used,
including the genetic material of the animals, the types of feed used, and the production facilities
where the animals are raised. The processor may also influence the number of animals produced
at a site. In general, these contracts do not deal with management of manure and waste disposal.
Recently, however, some processors have become increasingly involved in how manure and
waste is managed at the animal production site.
The use of production contracts in the livestock and poultry industries varies by
commodity group. Information from USDA indicates that production contracts are widely used
in the poultry industry and dominate broiler production. Production contracting is becoming
increasingly common in the hog sector, particularly for the finishing stage of production in
regions outside the Com Belt.
Production contracting has played a critical role in the growth of integrators in the poultry
sectors. Vertical integration has progressed to the point where large, multifunction producer-
packer-processor-distributor firms are the dominant force in poultry and egg production and
marketing. Data from USDA on animal ownership at U.S. farms illustrates the use of production
contracts in these sectors. In 1997, USDA reported that 97 percent of all broilers raised on U.S.
farms were not owned by the farmer. In the turkey and egg laying sectors, use of production
contracts is less extensive since 70 percent and 43 percent of all birds in these sectors,
respectively, were not owned by the fanner. In the hog sector, data from USDA indicate that
production contracting may account for 66 percent of hog production among larger producers in
the Southern and Mid-Atlantic states. This differs from the Midwest, where production
contracting accounted for 18 percent of hog production in 1997.
By comparison, production contracts are not widely used in the beef and dairy sectors.
Data from USDA indicate that less than 4 percent of all beef cattle and 1 percent of all milking
cows were not owned by the farmer in 1997. However, production contracts are used in these
industries that specialize in a single stage of livestock production, such as to "finish" cattle prior
to slaughter or to produce replacement breeding stock. However, this use constitutes a small
share of overall production across all producers.
To further examine the linkages between the animal production facility and the food
processing firms, and to evaluate the geographical implications of this affiliation, EPA conducted
an analysis that shows a relationship between areas of the country with an excess of manure
39
-------
nutrients from animal production operations and areas with a large number of meat packing and
poultry slaughtering facilities. This manure—if land applied—would be in excess of crop uptake
needs and result in over application and enrichment of nutrients. Across the pork and poultry
sectors, this relationship is strongest in northwest Arkansas, where EPA estimates a high
concentration of excess manure nutrients and a large number of poultry and hog processing
facilities. By sector, EPA's analysis shows that there is excess poultry manure nutrients and a
large number of poultry processing plants in the Delmarva Peninsula in the mid-Atlantic, North
Carolina, northern Alabama, and also northern Georgia. In the hog sector, the analysis shows
excess manure nutrients and a large number of meat packing plants in Iowa, Nebraska and
Alabama. The analysis also shows excess manure nutrients from hogs in North Carolina, but
relatively fewer meat packing facilities, which is likely explained by continuing processing plant
closure and consolidation in that state. More information on this analysis is provided in the
rulemaking record.
D. Improve Effectiveness of Regulations
As noted in Section IV.B, reports of continued discharges and runoff from animal
production facilities have persisted in spite of regulatory controls that were first instituted in the
1970s. EPA is proposing to revise the effluent guidelines and NPDES regulations to improve
their effectiveness by making the regulations simpler and easier to understand and implement.
Another change intended to improve the effectiveness of the regulations is clarification of the
conditions under which an AFO is a CAFO and is, therefore, subject to the NPDES regulatory
requirements. In addition, EPA is revising the existing regulation to remove certain provisions
that are no longer appropriate.
The existing regulations were designed to prohibit the release of wastewater from the
feedlot site, but did not specifically address discharges that may occur when wastewater or solid
manure mixtures are applied to crop, pasture, or hayland. The proposed regulations address the
environmental risks associated with manure management. The proposed revisions also are more
reflecti ve of current farm production practices and waste management controls.
Today's proposed revised regulations also seek to improve the effectiveness of the
existing regulations by focusing on those operations that produce the majority of the animal
manure and wastewater generated annually. EPA estimates that the proposed regulations will
regulate, as CAFOs, about 7 to 10 percent of all animal confinement operations nationwide, and
will capture between 64 percent and 70 percent of the total amount of manure generated at
CAFOs annually, depending on the proposed regulatory alternative (discussed in more detail in
Section VIA). Under the existing regulations, few operations have obtained NPDES permits.
Presently, EPA and authorized States have issued approximately 2,500 NPDES permits. This is
less than 1 percent of the estimated 376,000 animal confinement operations in the United States.
EPA's proposed revisions are intended to ensure that all CAFOs, as defined under the proposed
regulations, will apply for and obtain a permit.
40
-------
V. What Environmental and Human Health Impacts Are Potentially Caused by
CAFOs?
The 1998 National Water Quality Inventory, prepared under Section 305(b) of the Clean
Water Act, presents information on impaired water bodies based on reports from the States. This
recent report indicates that the agricultural sector (which includes concentrated and confined
animal feeding operations, along with aquaculture, crop production, pasture grazing, and range
grazing) is the leading contributor to identified water quality impairments in the nation's rivers
and lakes, and the fifth leading contributor in the nation's estuaries. The leading pollutants or
stressors of rivers and streams include (in order of rank) siltation, pathogens (bacteria), nutrients,
and oxygen depleting substances. For lakes, ponds, and reservoirs, the leading pollutants or
stressors include nutrients (ranked first), siltation (ranked third), oxygen depleting substances
(ranked fourth), and suspended solids (ranked fifth). For estuaries, the leading pollutants or
stressors include pathogens (bacteria) as the leading cause, oxygen depleting substances (ranked
second), and nutrients (ranked fourth).
The sections which follow present the pollutants associated with livestock and poultry
operators, of which CAFOs'are a subset, the pathways by which the pollutants reach surface
water, and their impacts on the environment and human health. Detailed information can be
found in the Environmental Assessment of the Proposed Revisions to the National Pollutant
Discharge Elimination System Regulation and Effluent Guidelines for Concentrated Animal
Feeding Operations. The Environmental Assessment and the supporting references mentioned
here are included in Section 8.1 of the Record for this proposal.
A. Which Pollutants Do CAFOs Have the Potential to Discharge and Why Are
They of Concern?
The primary pollutants associated with animal waste are nutrients (particularly nitrogen
and phosphorus), organic matter, solids, pathogens, and odorous/volatile compounds. Animal
waste is also a source of salts and trace elements, and to a lesser extent, antibiotics, pesticides,
and hormones. Each of these types of pollutants is discussed in the sections which follow. The
actual composition of manure depends on the animal species, size, maturity, and health, as well
as on the composition (e.g., protein content) of animal feed.
1. Nutrients (Nitrogen, Phosphorus, and Potassium)
The 1998 National Water Quality Inventory indicates that nutrients are the leading
stressor in impaired lakes, ponds, and reservoirs. They are the third most frequent stressor in
impaired rivers and streams, and the fourth greatest stressor in impaired estuaries. The three
primary nutrients in manure are nitrogen, phosphorus, and potassium. (Potassium also
contributes to salinity.)
41
-------
Nitrogen in fresh manure exists in both organic forms (including urea) and inorganic
forms (including ammonium, ammonia, nitrate, and nitrite). In fresh manure, 60 to 90 percent of
total nitrogen is present in organic forms. Organic nitrogen is transformed via microbial
processes to inorganic forms, which are bioavailable and therefore have fertilizer value. As an
example of the quantities of nutrients discharged from AFOs, EPA estimates that hog operations
in eastern North Carolina generated 135 million pounds of nitrogen per year as of 1995.
Phosphorus exists in solid and dissolved phases, in both organic and inorganic forms.
Over 70 percent of the phosphorus in animal manure is in the organic form. As the waste ages,
phosphorus mineralizes to inorganic phosphate compounds which are available to plants.
Organic phosphorus compounds are generally water soluble and may leach through soil to
groundwater and run off into surface waters. Inorganic phosphorus tends to adhere to soils and is
less likely to leach into groundwater. Animal wastes typically have lower nitrogen:phosphorus
ratios'than crop requirements. The application of manure at a nitrogen-based agronomic rate can,
therefore, result in application of phosphorus at several times the agronomic rate. Soil test data
in the United States confirm that many soils in areas dominated by animal-based agriculture have
elevated levels of phosphorus.
Potassium contributes to the salinity of animal manure which may in turn contribute
salinity to surface water polluted by manure. Actual or anticipated levels of potassium in surface
water and groundwater are unlikely to pose hazards to human health or aquatic life. However,
applications of high salinity manure are likely to decrease the fertility of the soil.
In 1998, USDA studied the amount of manure nitrogen and phosphorus production for
confined animals relative to crop uptake potential. USDA evaluated the quantity of nutrients
available from recoverable livestock manure relative to crop growth requirements, by county,
based on data from the 1997 Census of Agriculture. The analyses were intended to determine the
amount of manure that can be recovered and used. The analyses did not consider manure from
grazing animals in pasture, excluded manure lost to the environment, and also excluded manure
lost in dry storage and treatment. It is not currently possible to completely recover all manure.
Losses to the environment can occur through runoff, erosion, leaching to groundwater,
and volatilization (especially for nitrogen in the form of ammonia). These losses can be
significant. Considering typical management systems, the 1998 USDA study reported that
average manure nitrogen losses range from 31 to 50 percent for poultry, 60 to 70 percent for
cattle (including the beef and dairy categories), and 75 percent for swine. The typical phosphorus
loss is 15 percent.
The USDA study also looked at the potential for available manure nitrogen and
phosphorus generated in a county to meet or exceed plant uptake and removal in each of the
3,141 mainland counties. Based on this analysis of 1992 conditions, available manure nitrogen
exceeds crop system needs in 266 counties, and available manure phosphorus exceeds crop
system needs in 485 counties. The relative excess of phosphorus compared to nitrogen is not
42
-------
surprising, since manure is typically nitrogen-deficient relative to crop needs. Therefore, when
manure is applied to meet a crop's nitrogen requirement, phosphorus is typically over-applied.
USDA's analyses do not evaluate environmental transport of applied manure nutrients.
Therefore, an excess of nutrients in a particular county does not necessarily indicate that a water
quality problem exists. Likewise, a lack of excess nutrients does not imply the absence of water
quality problems. Nevertheless, the analyses provide a general indicator of excess nutrients on a
broad basis.
2. Organic Matter
Livestock manures contain many carbon-based, biodegradable compounds. Once these
compounds reach surface water, they are decomposed by aquatic bacteria and other
microorganisms. During this process dissolved oxygen is consumed, which in turn reduces the
amount of oxygen available for aquatic animals. The 1998 National Water Quality Inventory
indicates that oxygen-depleting substances are the second leading stressor in estuaries. They are
the fourth greatest stressor both in impaired rivers and streams, and in impaired lakes, ponds, and
reservoirs. Biochemical oxygen demand (BOD) is an indirect measure of the concentration of
biodegradable substances present in an aqueous solution.
3.
Solids
The 1998 National Water Quality Inventory indicates that suspended solids are the fifth
leading stressor in lakes, ponds, and reservoirs. Solids are measured as total suspended solids, or
TSS. (Solids can also be measured as total dissolved solids, or TDS.) Solids from animal
manure include the manure itself and any other elements that have been mixed with it. These
elements can include spilled feed, bedding and litter materials, hair, feathers, and corpses. In
general, the impacts of solids include increasing the turbidity of surface waters, physically
hindering the functioning of aquatic plants and animals, and providing a protected environment
for pathogens.
4. Pathogens
Pathogens are disease-causing organisms including bacteria, viruses, protozoa, fungi, and
algae. The 1998 National Water Quality Inventory indicates that pathogens (specifically
bacteria) are the leading stressor in impaired estuaries and the second most prevalent stressor in
impaired rivers and streams. Livestock manure contains countless microorganisms, including
bacteria, viruses, protozoa, and parasites. Multiple species of pathogens may be transmitted
directly from a host animal's manure to surface water, and pathogens already in surface water
may increase in number due to loadings of animal manure nutrients and organic matter. In 1998,
the Centers for Disease Control and Prevention reported on an Iowa investigation of chemical
and microbial contamination near large scale swine operations. The investigation demonstrated
the presence of pathogens not only in manure lagoons used to store swine waste before it is land
43
-------
applied, but also in drainage ditches, agricultural drainage wells, tile line inlets and outlets, and
an adjacent river.
Over 150 pathogens found in livestock manure are associated with risks to humans. The
protozoa Cryptosporidium parvum and Giardia species are frequently found in animal manure
and relatively low doses can cause infection in humans. Bacteria such as Escherichia coli
O157:H7 and Salmonella species are also often found in livestock manure and have also been
associated with waterbome disease. A recent study by USDA revealed that about half the cattle
at the nation's feedlots carry E. coli. The bacteria Listeria monocytogenes is ubiquitous in
nature, and is commonly found in the intestines of wild and domestic animals without causing
illness. L. monocytogenes is commonly associated with foodbome disease. The pathogens C.
parvum, Giardia, E. coli 0157:H7, and L. monocytogenes are able to survive and remain
infectious in the environment for long periods of time.
Although the pathogen Pfiesieria piscicida is not found in manure, researchers have
documented stimulation ofPfiesteria growth by swine effluent discharges, and have strong field
evidence that the same is true for poultry waste. Research has also shown that this organism's
growth can be highly stimulated by both inorganic and organic nitrogen and phosphorus
enrichments. Discussions ofPfiesteria impacts on the environment and on human health are
presented later in this section.
5.
Salts
The salinity of animal manure is directly related to the presence of dissolved mineral
salts. In particular, significant concentrations of soluble salts containing sodium and potassium
remain from undigested feed that passes unabsorbed through animals. Other major cations
contributing to manure salinity are calcium and magnesium; the major anions are chloride,
sulfate, bicarbonate, carbonate, and nitrate. Salinity tends to increase as the volume of manure
decreases during decomposition and evaporation. Salt buildup deteriorates soil structure, reduces
permeability, contaminates groundwater, and reduces crop yields.
In fresh waters, increasing salinity can disrupt the balance of the ecosystem, making it
difficult for resident species to remain, in laboratory settings, drinking water high in salt content
has inhibited growth and slowed molting of mallard ducklings. Salts also contribute to
degradation of drinking water supplies.
6.
Trace Elements
The 1998 National Water Quality Inventory indicates that metals are the fifth leading
stressor in impaired rivers, the second leading stressor in impaired lakes, and the third leading
stressor in impaired estuaries. Trace elements in manure that are of environmental concern
include arsenic, copper, selenium, zinc, cadmium, molybdenum, nickel, lead, iron, manganese,
aluminum, and boron. Of these, arsenic, copper, selenium, and zinc are often added to animal
44
-------
feed as growth stimulants or biocides. Trace elements may also end up in manure through use of
pesticides, which are applied to livestock to suppress houseflies and other pests. Trace elements
have been found in manure lagoons used to store swine waste before it is land applied, and in
drainage ditches, agricultural drainage wells, and tile line inlets and outlets. They have also been
found in rivers adjacent to hog and cattle operations.
Several of the trace elements in manure are regulated in treated municipal sewage sludge
(but not manure) by the Standards for the Use or Disposal of Sewage Sludge, promulgated under
the Clean Water Act and published in 40 C.F.R. Part 503. These include arsenic, cadmium,
chromium, copper, lead, mercury, molybdenum, nickel, selenium, and zinc. Total concentrations
of trace elements in animal manures have been reported as comparable to those in some
municipal sludges, with typical values well below the maximum concentrations allowed by Part
503 for land-applied sewage sludge. Based on this information, trace elements in agronomically
applied manures should pose little risk to human health and the environment. However, repeated
application of manures above agronomic rates could result in exceedances of the cumulative
metal loading rates established in Part 503, thereby potentially impacting human health and the
environment. There is some evidence that this is happening. For example, in 1995, zinc and
copper were found building to potentially harmful levels on the fields of a hog farm in North
Carolina.
7. Odorous/Volatile Compounds
Sources of odor and volatile compounds include animal confinement buildings, manure
piles, waste lagoons, and land application sites. As animal wastes are degraded by
microorganisms, a variety of gases are produced. The four main gases generated are carbon
dioxide, methane, hydrogen sulfide, and ammonia. Over 150 other odorous compounds have
also been identified with animal manure. Aerobic conditions yield mainly carbon dioxide, while
anaerobic conditions generate both methane (60 percent to 70 percent) and carbon dioxide (30
percent). Anaerobic conditions, which dominate in typical, unaerated animal waste lagoons, are
also associated with the generation of hydrogen sulfide and about 40 other odorous compounds,
including volatile fatty acids, phenols, mercaptans, aromatics, sulfides, and various esters,
carbonyls, and amines. Once airborne, these volatile pollutants have the potential to be deposited
onto nearby streams, rivers, and lakes.
Up to 50 percent or more of the nitrogen in fresh manure may be in ammonia form or
converted to ammonia relatively quickly once manure is excreted. Ammonia is volatile and
ammonia losses from animal feeding operations can be considerable. A study of atmospheric
nitrogen published in 1998 reported that, in North Carolina, animal agriculture is responsible for
over 90 percent of all ammonia emissions. Ammonia from manure comprises more than 40
percent of the total estimated nitrogen emissions from all sources.
8. Antibiotics
45
-------
Antibiotics are used in animal feeding operations and can be expected to appear in animal
wastes. The practice of feeding antibiotics to poultry, swine, and cattle evolved from the 1949
discovery that very low levels usually improved growth. Antibiotics are used both to treat illness
and as feed additives to promote growth or to improve feed conversion efficiency. In 1991, an
estimated 19 million pounds of antibiotics were used for disease prevention and growth
promotion in animals. Between 60 and 80 percent of all livestock and poultry receive antibiotics
during their productive lifespan. The primary mechanisms of elimination are in urine and bile.
Essentially all of an antibiotic administered is eventually excreted, whether unchanged or in
metabolite form. Little information is available regarding the concentrations of antibiotics in
animal wastes, or on their fate and transport in the environment.
Of greater concern than the presence of antibiotics in animal manure is the development
of antibiotic resistant pathogens. Use of antibiotics in raising animals, especially broad spectrum
antibiotics, is increasing. As a result, more strains of antibiotic resistant pathogens are emerging,
along with strains that are growing more resistant. Normally, about 2 percent of a bacterial
population are resistant to a given antibiotic; however, up to 10 percent of bacterial populations
from animals regularly exposed to antibiotics have been found to be resistant. In a study of
poultry litter suitable for land application, about 80 to 100 percent of bacterial populations
isolated from the litter were found to be resistant to multiple antibiotics. Antibiotic-resistant
forms of Salmonella, Campylobacter, E. coli, and Listeria are known or suspected to exist. An
antibiotic-resistant strain of the bacteria Clostridium perfringens was detected in the groundwater
beiow plots of land treated with pig manure, while it was nearly absent beneath unmanured plots.
9.
Pesticides and Hormones
Pesticides and hormones are compounds which are used in animal feeding operations and
can be expected to appear in animal wastes. Both of these types of pollutants have been linked
with endocrine disruption.
Pesticides are applied to livestock to suppress houseflies and other pests. There has been
very little research on losses of pesticides in runoff from manured lands. A 1994 study showed
that losses of cyromazine (used to control flies in poultry litter) in runoff increased with the rate
of poultry manure applied and the intensity of rainfall.
Specific hormones are used to increase productivity in the beef and dairy industries.
Several studies have shown hormones are present in animal manures. Poultry manure has been
shown to contain both estrogen and testosterone. Runoff from fields with land-applied manure
has been reported to contain estrogens, estradiol, progesterone, and testosterone, as well as their
synthetic counterparts. In 1995, an irrigation pond and three streams in the Conestoga River
watershed near the Chesapeake Bay had both estrogen and testosterone present. All of these sites
were affected by fields receiving poultry litter.
B. How Do These Pollutants Reach Surface Waters?
46
-------
Pollutants found in animal manures can reach surface water by several mechanisms.
These can be categorized as either surface discharges or other discharges. Surface discharges can
occur as the result of runoff, erosion, spills, and dry-weather discharges. In surface discharges,
the pollutant travels overland or through drain tiles with surface inlets to a nearby stream, river,
or lake. Direct contact between confined animals and surface waters is another means of surface
discharge. For other types of discharges, the pollutant travels via another environmental medium
(groundwater or air) to surface water.
1. Surface Discharges
a. Runoff
Water that falls on man-made surfaces or soil and fails to be absorbed will flow across the
surface and is called runoff. Surface discharges of manure pollutants can originate from feedlots
and from overland runoff at land application sites. Runoff is especially likely at open-air feedlots
if rainfall occurs soon after application, or if manure is over-applied, or misapplied. For
example, experiments by Edwards and Daniels in the early 1990s show that, for all animal
wastes, the application rate had a significant effect on the runoff concentration. In addition,
manure applied to water-saturated or frozen soils is more likely to run off the soil surface. Other
factors that promote runoff to surface waters are steep land slope, high rainfall, low soil porosity
or permeability, and close proximity to surface waters. Runoff of pollutants dissolved into
rainwater is a significant transport mechanism for water soluble pollutants, which includes
nitrate, nitrite, and organic forms of phosphorus.
Runoff of manure pollutants has been identified by states, citizen's groups, and the media
as a factor in a number of documented impacts from AFOs, including hog, cattle, and chicken
operations. For example, in 1994, multiple runoff problems were cited for a hog operation in
Minnesota, and in 1996 runoff from manure spread on land was identified at hog and chicken
operations in Ohio. In 1997, runoff problems were identified for several cattle operations in
numerous counties in Minnesota. More discussion of runoff and its impacts on the environment
and human health is provided later in this section.
b.
Erosion
In addition to runoff, surface discharges can occur by erosion, in which the soil surface is
worn away by the action of water or wind. Erosion is a significant transport mechanism for land-
applied pollutants that are strongly sorbed to soils, of which phosphorus is one example. A 1999
report by the Agricultural.Research Service (ARS) noted that phosphorus bound to eroded
sediment particles makes up 60 to 90 percent of phosphorus transported in surface runoff from
cultivated land. For this reason, most agricultural phosphorus control measures have focused on
soil erosion control to limit transport of paiticulate phosphorus. However, soils do not have
infinite adsorption capacity for phosphate or any other adsorbing pollutant, and dissolved
47
-------
pollutants including phosphates can still enter waterways via runoff and leachate even if soil
erosion is controlled.
In 1998, the USDA Natural Resources Conservation Service (NRCS) reviewed the
manure production of a watershed in South Carolina. Agricultural activities in the project area
are a major influence on the streams and ponds in the watershed, and contribute to
nutrient-related water quality problems in the headwaters of Lake Murray. NRCS found that
bacteria, nutrients, and sediment from soil erosion are the primary contaminants affecting these
resources. The NRCS has calculated that soil erosion, occurring on over 13,000 acres of
cropland in the watershed, ranges from 9.6 to 41.5 tons per acre per year.
c. Spills and Dry-Weather Discharges
Surface discharges can occur through spills or other discharges from lagoons. Some
causes of spills include malfunctions such as pump failures, manure irrigation gun malfunctions,
and pipes or retaining walls breaking. Manure entering tile drains has a direct route to surface
water. (Tile drains are a network of pipes buried in fields below the root zone of plants to
remove subsurface drainage water from the root zone to a stream, drainage ditch, or evaporation
pond. EPA does not regulate most tile fields.) In 1997, the Ohio Department of Natural
Resources documented chicken manure traveling through tile drains into a nearby stream. In
addition, spills can occur as a result of lagoon overflows and washouts from floodwaters when
lagoons are sited on floodplains. There are also indications that discharges from siphoning
lagoons occur deliberately as a means to reduce the volume in overfull lagoons. Acute
discharges of this kind frequently result in dramatic fish kills. In 1997, an independent review of
Indiana Department of Environmental Management records indicated that the most common
causes of waste releases in that state were intentional discharge and lack of operator knowledge,
rather than spills due to severe rainfall conditions.
Numerous such dry-weather discharges have been identified. For example, in 1995, two
separate discharges of 25 million gallons of manure from hog farms in North Carolina were
documented, and both resulted in fish kills. Subsequent discharges of hundreds of thousands of
gallons of manure were documented from hog operations in Iowa (1996), Illinois (1997), and
Minnesota (1997). Fish kills were also reported as a result of two of these discharges.
Discharges of over 8 million gallons of manure from a poultry operation in North Carolina in
1995 likewise resulted in a fish kill. Between 1994 and 1996, half a dozen discharges from
poultry operations in Ohio resulted when manure entered field tiles. In 1998,125,000 gallons of
manure were discharged from a dairy feedlot in Minnesota.
d. Direct Contact between Confined Animals and Surface Water
Finally, surface discharges can occur as a result of direct contact between confined
animals and the rivers or ponds that are located within their reach. Historically, farms were
located near waterways for both water access for animals and discharge of wastes. This practice
48
-------
is now restricted for CAFOs; however, despite this restriction, enforcement actions are the
primary means for reducing direct access.
In the more traditional farm production regions of the Midwest and Northeast, dairy barns
and feedlots are often in close proximity to streams or other water sources. This close proximity
to streams was necessary in order to provide drinking water for the dairy cows, direct access to
cool the animals in hot weather, and to cool the milk prior to the wide-spread use of refrigeration.
For CAFO-size facilities this practice is now replaced with more efficient means of providing
drinking water for the dairy herd. In addition, the use of freestall bams and modem milking
centers minimizes the exposure of dairy cows to the environment. For example, in New York
direct access is more of a problem for the smaller traditional dairy farms that use older methods .
of housing animals.
In the arid west, feedlots are typically located near waterbodies to allow for cheap and
easy stock watering. Many existing lots were configured to allow the animals direct access to the
water. Certain animals, particularly cattle, will wade into the water, linger to drink, and will
often urinate and defecate there as well. This direct deposition of manure and urine contributes
greatly to water quality problems. Environmental problems associated with allowing farm
animals access to waters that are adjacent to the production area are well documented in the
literature. EPA Region X staff have documented dramatically elevated levels of Escherichia coli
in rivers downstream of AFOs (including CAFOs) with direct access to surface water. Recent
enforcement actions against direct access facilities have resulted in the assessment of tens of
thousands of dollars in civil penalties.
2. Other Discharges to Surface Waters
a. Leaching to Groundwater
Leaching of land-applied pollutants such as nitrate dissolved into rainwater is a
significant transport mechanism for water soluble pollutants. In addition, leaking lagoons are a
source of manure pollutants to ground water. Although manure solids purportedly "self-seal"
lagoons to prevent groundwater contamination, some studies have shown otherwise. A study for
the Iowa legislature published in 1999 indicates that leaking is part of design standards for
earthen lagoons and that all lagoons should be expected to leak. A 1995 survey of hog and
poultry lagoons in the Carolinas found that nearly two-thirds of the 36 lagoons sampled had
leaked into the groundwater. Even clay-lined lagoons have the potential to leak, since they can
crack or break as they age, and can be susceptible to burrowing worms. In a three-year study
(1988-1990) of clay-lined swine lagoons on the Delmarva Peninsula, researchers found that
leachate from lagoons located in well-drained loamy sand had a severe impact on groundwater
quality.
Pollutant transport to groundwater is also greater in areas with high soil permeability and
shallow water tables. Percolating water can transport pollutants to groundwater, as well as to
49
-------
surface waters via interflow. Contaminated groundwater can deliver pollutants to surface waters
through hydrologic connections. Nationally, about 40 percent of the average annual stream flow
is from groundwater. In the Chesapeake Bay watershed, the U.S. Geological Survey (USGS)
estimates that about half of the nitrogen loads from all sources to nontidal streams and rivers
originate from groundwater.
b. Discharge to the Air and Subsequent Deposition
Discharges to air can occur as a result of volatilization of both pollutants already present
in the manure and pollutants generated as the manure decomposes. Ammonia is very volatile,
and can have significant impacts on water quality through atmospheric deposition. Other ways
that manure pollutants can enter the air is from spray application methods for land applying
manure and as particulates wind-borne in dust. Once airborne, these pollutants can find their
way into nearby streams, rivers, and lakes. The 1998 National Water Quality Inventory indicates
that atmospheric deposition is the third greatest cause of water quality impairment for estuaries,
and the fifth greatest cause of water quality impairment for lakes, ponds, and reservoirs.
The degree of volatilization of manure pollutants is dependent on the manure
management system. For example, losses are greater when manure remains on the land surface
rather than being incorporated into the soil, and are particularly high when spray application is
performed. Environmental conditions such as soil acidity and moisture content also affect the
extent of volatilization. Losses are reduced by the presence of growing plants. Ammonia also
readily volatilizes from lagoons.
Paniculate emissions from AFOs may include dried manure, feed, epithelial cells, hair,
and feathers. The airborne particles make up an organic dust, which includes endotoxin (the
toxic protoplasm liberated when a microorganism dies and disintegrates), adsorbed gases, and
possibly steroids. At least 50 percent of dust emissions from swine operations are believed to be
respirable (small enough to be inhaled deeply into the lungs).
3. A National Study of Nitrogen Sources to Watersheds
In 1994, the USGS analyzed nitrogen sources to 107 watersheds. Potential sources
included manure (both point and nonpoint sources), fertilizers, point sources, and atmospheric
deposition The "manure" source estimates include waste from both confined and unconfmed
animals. As may be expected, the USGS found that proportions of nitrogen originating from
various sources differ according to climate, hydrologic conditions, land use, population, and
physical geography. Results of the analysis for selected watersheds for the 1987 base year show
that in some instances, manure nitrogen is a large portion of the total nitrogen added to the
watershed. The study showed that, for following nine watersheds, more than 25 percent of
nitrogen originates from manure: Trinity River, Texas; White River, Arkansas; Apalachicola
River, Florida; Altamaha River, Georgia; Potomac River, Washington, D.C.; Susquehanna River,
Pennsylvania; Platte River, Nebraska; Snake River, Idaho; and San Joaquin River, California. Of
50
-------
these, California, Texas, Florida, Arkansas, and Idaho have large populations of confined
animals.
4. State Level Studies of Feedlot Pollutants Reaching Surface Waters
There are many studies demonstrating surface water impacts from animal feeding
operations. These impacts have been documented for at least the past decade. For example, in
1991, the U.S. Fish and Wildlife Service (FWS) reported on suspected impacts from a large
number of cattle feedlots on Tierra Blanca Creek, upstream of the Buffalo Lake National
Wildlife Refuge in the Texas Panhandle. FWS found elevated aqueous concentrations of
ammonia, chemical oxygen demand, coliform bacteria, chloride, nitrogen, and volatile suspended
solids; they also found elevated concentrations of the feed additives copper and zinc in the creek
sediment.
According to Arkansas' 1996 Water Quality Inventory Report, a publication of the
Arkansas Department of Environmental Protection, water in the Grand Neosho basin only
partially supports aquatic life. Land uses there, primarily confined animal feeding operations
including poultry production and pasture management, are major sources of nutrients and chronic
high turbidity. Pathogens sampled in the Muddy Fork Hydrologic Unit Area, in the Arkansas
River basin, also exceed acceptable limits for primary contact recreation (swimming). This
problem was reported in the 1994 water quality inventory, and it, too, was traced to extensive
poultry, swine, and dairy operations in the Moore's Creek basin. Essentially, all parts of the
subwatershed are impacted by these activities. Currently, the Muddy Fork Hydrologic Unit Area
Project is a USDA agricultural assistance, technology transfer, and demonstration project. A
section 319 water quality monitoring operation is also ongoing in the hydrologic unit area.
In 1997, the Hoosier Environmental Council documented the reduction in biodiversity
due to AFOs in a study of three Indiana stream systems. That study found that waters
downstream of animal feedlots (mainly hog and dairy operations) contained fewer fish and a
limited number of species of fish in comparison with reference sites. It also found excessive
algal growth, altered oxygen content, and increased levels of ammonia, turbidity, pH, and total
dissolved solids.
C. What Are the Potential and Observed Impacts?
Pollutants in animal manures can impair surface waters. Such impairments have resulted
in fish kills; eutrophication and algal blooms; contamination of shellfish, and subsequent toxin
and pathogen transmission up the food chain; increased turbidity and negative impacts to benthic
organisms; and reduced biodiversity when rivers and streams become uninhabitable by resident
species. These manure pollutants can also deteriorate soil quality and make it toxic to plants. In
addition to these ecological impacts, pollutants in animal manures can present a range of risks to
human health when they contaminate drinking water or shellfish, and when they are present in
recreational waters.
51
-------
1. Ecological Impacts
a. Fish Kills and Other Fishery Impacts
Fish kills are one of the most dramatic impacts associated with manure reaching surface
water. Spills, dry-weather discharges, and runoff can carry pollutants in manure to rivers and
streams and can result in serious fish kills. During the years 1987 through 1997, at least 47
incidents offish kills have been associated with hog manure. Another 8 fish kills were attributed
to poultry waste, and 2 with beef/dairy manure. An additional 20 fish kills were associated with
animal manure for which one specific animal type was not identified. These incidents were
reported by the Iowa Department of Natural Resources, the Maryland Department of the
Environment, the Natural Resources Defense Council, several citizen's groups, and numerous
newspapers. These incidents are not reflective of all states. In Illinois alone, records indicate that
171 fish kills attributable to manure discharges were investigated by Illinois Environmental
Protection Agency personnel between 1979 and 1998. Thousands offish are typically killed by
one of these events. • .. .
Ammonia is highly toxic to aquatic life and is a leading cause of fish kills. In a May 1997
incident in Wabasha County, Minnesota, ammonia in a dairy cattle manure discharge killed
16,500 minnows and white suckers. Ammonia and other pollutants in manure exert a direct
biochemical oxygen demand (BOD) on the receiving water. As ammonia is oxidized, dissolved
oxygen is consumed. Moderate depressions of dissolved oxygen are associated with reduced
species diversity, while more severe depressions can produce fish kills.
Nitrites pose additional risks to aquatic life: if sediments are enriched with nutrients, the
concentrations of nitrites on the overlying water may be raised enough to cause nitrite poisoning
or "brown blood disease" in fish.
Excess nutrients result in eutrophication (see section V.C.I.b, which follows).
Eutrophication is associated with blooms of a variety of organisms that are toxic to both fish and
humans. This includes the estuarine dinoflagellate Pfiesteria piscicida, which is implicated in
several fish kills and fish disease events. Pfiesteria has been implicated as the primary causative
agent of many major fish kills and fish disease events in North Carolina estuaries and coastal
areas, as well as in Maryland and Virginia tributaries to the Chesapeake Bay. In 1997, hog
operations were identified as a potential cause of a Pfiesteria outbreak in North Carolina rivers
that resulted in 450,000 fish killed. Also that same year, poultry operations were linked to
Pfiesteria outbreaks in the Pokomoke River and Kings Creek (both in Maryland) and in the
Chesapeake Bay, in which tens of thousands of fish were killed.
The presence of estrogen and estrogen-like compounds in surface water has caused much
concern. These hormones have been found in animal manures and runoff from fields where
manure has been applied. The ultimate fate of hormones in the environment is unknown,
although early studies indicate that common soil or fecal bacteria cannot metabolize estrogen.
52
-------
When present in high enough concentrations in the environment, hormones and other endocrine
disrupters including pesticides are linked to reduced fertility, mutations, and the death offish.
Estrogen hormones have been implicated in widespread reproductive disorders in a variety of
wildlife. There is evidence that fish in some streams are experiencing endocrine disruption and
that contaminants including pesticides may be the cause, though there is no evidence linking
these effects to CAFOs.
b. Eutrophication and Algal Growth
Eutrophication is the process in which phosphorus and nitrogen over-enrich water bodies
and disrupt the balance of life in that water body. As a result, the excess nutrients cause fast-
growing algae blooms. The 1998 National Water Quality Inventory indicates that excess algal
growth is the seventh leading stressor in lakes, ponds, and reservoirs. Rapid growth of algae can
lowsr the dissolved oxygen content of a water body to levels insufficient to support fish and
invertebrates. Eutrophication can also affect phytoplankton and zooplankton population
diversity, abundance, and biomass, and increase the mortality rates of aquatic species. Floating
algal mats can reduce the penetration of sunlight in the water column and thereby limit growth of
seagrass beds and other submerged vegetation. This in turn reduces fish and shellfish habitat.
This reduction in submerged aquatic vegetation adversely affects both fish and shellfish
populations.
Increased algal growth can also raise the pH of waterbodies, as algae consume dissolved
carbon dioxide to support photosynthesis. This elevated pH can harm the gill epithelium of
aquatic organisms. The pH may then drop rapidly at night, when algal photosynthesis stops. In
extreme cases, such pH fluctuations can severely stress aquatic organisms.
Eutrophication is also a factor in the growth of toxic microorganisms, such as
cyanobacteria (a toxic algae) and Pfiesteria piscicida, which can affect human health as well.
Decay of algal blooms and night-time respiration can further depress dissolved oxygen levels,
potentially leading to fish kills and reduced biodiversity. In addition, toxic algae such as
cyanobacteria release toxins as they die, which can severely impact wildlife as well as humans.
Researchers have documented stimulation of Pfiesteria growth by swine effluent discharges, and
have shown that the organism's growth can be highly stimulated by both inorganic and organic
nitrogen and phosphorus enrichments.
c. Wildlife Impacts
As noted earlier, reduction in submerged aquatic vegetation due to algal blooms is the
leading cause of biological decline in Chesapeake Bay, adversely affecting both fish and shellfish
populations. In marine ecosystems, blooms known as red or brown tides have caused significant
mortality in marine mammals. In freshwater, cyanobacterial toxins have caused many incidents
of poisoning of wild and domestic animals that have consumed impacted waters.
53
-------
Even with no visible signs of the algae blooms, shellfish such as oysters, clams and
mussels can carry the toxins produced by some types of algae In their tissue. Shellfish are filter
feeders which pass large volumes of water over their gills. As a result, they can concentrate a
broad range of microorganisms in their tissues. Concentration of toxins in shellfish provides a
pathway for pathogen transmission to higher trophic organisms. Information is becoming
available to assess the health effects of contaminated shellfish on wildlife receptors. Earlier this
year, the death of over 400 California sea lions was linked to ingestion of mussels contaminated
by a bloom of toxic algae. Previous incidents associated the deaths of manatees and whales with
toxic and harmful algae blooms.
In August 1997, the National Oceanic and Atmospheric Administration (NOAA) released
Tlie 1995 National Shellfish Register of Classified Growing Waters. The register characterizes
the status of 4,230 shellfish-growing water areas in 21 coastal states, reflecting an assessment of
nearly 25 million acres of estuarine and non-estuarine waters. NOAA found that 3,404 shellfish
areas had some level of impairment. Of these, 110 (3 percent) were impaired to varying degrees
by feedlots, and 280 (8 percent) were impaired by "other agriculture" which could include land
where manure is applied.
Avian botulism and avian cholera have killed hundreds of thousands of migratory
waterfowl in the past. Although outbreaks of avian botulism have occurred since the beginning
of the century, most occurrences have been reported in the past twenty years, which coincides
with the trend toward fewer and larger AFOs. The connection between nutrient runoff, fish kills,
and subsequent outbreaks of avian botulism was made in 1999 at California's Salton Sea, when
almost 8 million fish died in one day. The fish kill was associated with runoff from surrounding
farms, which carried nutrients and salts into the Salton Sea. Those nutrients caused algae blooms
which in turn lead to large and sudden fish kills. Since the 1999 die off, the number of
endangered brown pelicans infected with avian botulism increased to about 35 birds a day. In
addition, bottom feeding birds can be quite susceptible to metal toxicity, because they are
attracted to shallow feedlot wastewater ponds and waters adjacent to feedlots. Metals can remain
in aquatic ecosystems for long periods of time because of adsorption to suspended or bed
sediments or uptake by aquatic biota.
Reduction in biodiversity due to AFOs has been documented in a 1997 study of three
Indiana stream systems. That study shows that waters downstream of animal feedlots (mainly
hog and dairy operations) contained fewer fish and a limited number of species of fish in
comparison with reference sites. The study also found excessive algal growth, altered oxygen
content, and increased levels of ammonia, turbidity, pH, and total dissolved solids. Multi-
generation animal studies have found decreases in birth weight, post-natal growth, and organ
weights among mammals prenatally exposed to nitrite. Finally, hormones and pesticides have
been implicated in widespread reproductive disorders in a variety of wildlife.
d. Other Aquatic Ecosystem Imbalances
54
-------
Changes to the pH balance of surface water also threaten the survival of the fish and other
aquatic organisms. Data from Sampson County, North Carolina show that "ammonia rain" has
increased as the hog industry has grown, with ammonia levels in rain more than doubling
between 1985 and 1995. Li addition, excess nitrogen can contribute to water quality decline by
increasing the acidity of surface waters.
In fresh waters, increasing salinity can also disrupt the balance of the ecosystem, making
it difficult for resident species to remain. Salts also contribute to the degradation of drinking
water supplies.
Trace elements (e.g., arsenic, copper, selenium, and zinc) may also present ecological
risks. Antibiotics, pesticides, and hormones may have low-level, long-term ecosystem effects.
2. Drinking Water Impacts
Nitrogen in manure is easily transformed into nitrate form, which can be transported to
drinking water sources and present a range of health risks. In 1990, PA found that nitrate is the
most widespread agricultural contaminant in drinking.water wells, and estimated that 4.5 million
people are exposed to elevated nitrate levels from wells. In 1995, several private wells in North
Carolina were found to be contaminated with nitrates at levels 10 times higher than the State's
health standard; this contamination was linked with a nearby hog operation. The national
primary drinking water standard (Maximum Contaminant Level, or MCL) for nitrogen (nitrate,
nitrite) is 10 milligrams per liter (mg/L). In 1982, nitrate levels greater than 10 mg/L were found
in 32 percent of the wells in Sussex County, Delaware; these levels were associated with local
poultry operations. In southeastern Delaware and the Eastern Shore of Maryland, where poultry
production is prominent, over 20 percent of wells were found to have nitrate levels exceeding 10
mg/L. Nitrate is not removed by conventional drinking water treatment processes. Its removal
requires additional, relatively expensive treatment units.
Algae blooms triggered by nutrient pollution can affect drinking water by clogging
treatment plant intakes, producing objectionable tastes and odors, and increasing production of
harmful chlorinated byproducts (e.g., trihalomethanes) by reacting with chlorine used to disinfect
drinking water. As aquatic bacteria and other microorganisms degrade the organic matter in
manure, they consume dissolved oxygen. This can lead to foul odors and reduce the water's
value as a source of drinking water. Increased organic matter in drinking water sources can also
lead to excessive production of harmful chlorinated byproducts, resulting in higher drinking
water treatment costs.
Pathogens can also threaten drinking water sources. Surface waters are typically expected
to be more prone than groundwater to contamination by pathogens such as Escherichia coli and
Cryptosporidium parvum. However, groundwater in areas of sandy soils, limestone formations,
or sinkholes are particularly vulnerable. In a 1997 survey of drinking water standard violations
in six slates over a four-year period, the U.S. General Accounting Office noted in its 1997 report
55
-------
Drinking Water: Information on the Quality of Water Found at Community Water Systems and
Private Wells that bacterial standard violations occurred in up to 6 percent of community water
systems each year and in up to 42 percent of private wells. (Private wells are more prone than
public wells to contamination, since they tend to be shallower and therefore more susceptible to
contaminants leaching from the surface.) In cow pasture areas of Door County, Wisconsin,
where a thin topsoil layer is underlain by fractured limestone bedrock, groundwater wells have
commonly been shut down due to high bacteria levels.
Each of these impacts can result in increased drinking water treatment costs. For
example, California's Chino Basin estimates a cost of over $1 million per year to remove the
nitrates from drinking water due to loadings from local dairies. Salt load into the Chino Basin
from local dairies is over 1,500 tons per year, and the cost to remove that salt by the drinking
water treatment system ranges from $320 to $690 for every ton. In Iowa, Des Moines Water
Works planned to spend approximately $5 million in the early 1990's to install a treatment
system to remove nitrates from their main sources of drinking water, the Raccoon and Des
Moines Rivers. Agriculture was cited as a major source of the nitrate contamination, although
the portion attributable to animal waste is unknown. In Wisconsin, the City of Oshkosh has
spent an extra $30,000 per year on copper sulfate to kill the algae in the water it draws from Lake
Winnebago. The thick mats of algae in the lake have been attributed to excess nutrients from
manure, commercial fertilizers, and soil. In Tulsa, Oklahoma, excessive algal growth in Lake
Eucha is associated with poultry farming. The city spends $100,000 per year to address taste and
odor problems in the drinking water.
3. Human Health Impacts
Human and animal health impacts are primarily associated with drinking contaminated
water, contact with contaminated water, and consuming contaminated shellfish.
a.
Nutrients
The main hazard to human health from nutrients is elevated nitrate levels in drinking
water. In particular, infants are at risk from nitrate poisoning (also referred to as
methemoglobinemia or "blue baby syndrome"), which results in oxygen starvation and is
potentially fatal. Nitrate toxicity is due to its metabolite nitrite, which is formed in the
environment, in foods, and in the human digestive system. In addition to blue baby syndrome,
low blood oxygen due to methemoglobinemia has also been linked to birth defects, miscarriages,
and poor health in humans and animals. These effects are exacerbated by concurrent exposure to
many species of bacteria in water.
Studies in Australia compiled in a 1993 review by Bruning-Fann and Kaneene showed an
increased risk of congenital malformations with consumption of high-nitrate groundwater.
Multi-generation animal studies have found decreases in birth weight and post-natal growth and
organ weights associated with nitrite exposure among prenatally exposed mammals. Nitrate- and
56
-------
nitrite-containing compounds also have the ability to cause hypotension or circulatory collapse.
Nitrate metabolites such as N-nitroso compounds (especially nitrosamines) have been linked to
severe human health effects such as gastric cancer.
Eutrophication can also affect human health by enhancing growth of harmful algal
blooms that release toxins as they die. In marine ecosystems, harmful algal blooms such as red
tides can result in human health impacts via shellfish poisoning and?recreational contact. In
freshwater, blooms of cyanobacteria (blue-green algae) may pose a serious health hazard to
humans via water consumption. When cyanobacterial blooms die or are ingested, they release
water-soluble compounds that are toxic to the nervous system and liver. Algal blooms can also
increase production of harmful chlorinated byproducts (e.g., trihalomethanes) by reacting with
chlorine used to disinfect drinking water. These substances can result in increased health risks.
b. Pathogens
Livestock manure has been identified as a potential source of pathogens by public health
officials. Humans may be exposed to pathogens via consumption of contaminated drinking
water and shellfish, or by contact and incidental ingestion during recreation in contaminated
waters. Relatively few microbial agents are responsible for the majority of human disease
outbreaks from water-based exposure routes. Intestinal infections are the most common type of
waterborne infection, and affect the most people. A May, 2000 outbreak of Escherichia coli
O157:H7 in Walkerton, Ontario resulted in at least seven deaths and 1,000 cases of intestinal
problems; public health officials theorize that flood waters washed manure contaminated with E.
coli into the town's drinking water well.
A study for the period 1989 to 1996 revealed that infections caused by the protozoa
Giardia sp. and Cryptosporidium parvum were the leading cause of infectious water-borne
disease outbreaks in which an agent was identified. C. parvum is particularly associated with
cows, and can produce gastrointestinal illness, with symptoms such as severe diarrhea. Healthy
people typically recover relatively quickly from gastrointestinal illnesses such as
cryptosporidiosis, but such diseases can be fatal in people with weakened immune systems. This
subpopulation includes children, the elderly, people with HTV infection, chemotherapy patients,
and those taking medications that suppress the immune system. In Milwaukee, Wisconsin in
1993, C. parvum contamination of a public water supply caused more than 100 deaths and an
estimated 403,000 illnesses. The source was not identified, but possible sources include runoff
from cow manure application sites.
In 1999, an E. coli outbreak occurred at the Washington County Fair in New York State.
This outbreak, possibly the largest waterborne outbreak of £. coli 0157:H7 in U.S. history, took
the lives of two fair attendees and sent 71 others to the hospital. An investigation identified 781
persons with confirmed or suspected illness related to this outbreak. The outbreak is thought to
57
-------
have been caused by contamination of the Fair's Well 6 by either a dormitory septic system or
manure runoff from the nearby Youth Cattle Barn.
Contact with pathogens during recreational activities in surface water can also result in
infections of the skin, eye, ear, nose, and throat. In 1989, ear and skin infections and intestinal
illnesses were reported in swimmers as a result of discharges from a dairy operation in
Wisconsin.
As discussed in the previous section, excess nutrients result in eutrophication, which is.
associated with the growth of a variety of organisms that are toxic to humans either through
ingestion or contact. This includes the estuarine dinoflagellate Pfiesteria piscicida. While
Pfiesteria is primarily associated with fish kills and fish disease events, the organism has also
been linked with human health impacts through dermal exposure. Researchers working with
dilute toxic cultures of Pfiesteria exhibited symptoms such as skin sores, severe headaches,
blurred vision, nausea/vomiting, sustained difficulty breathing, kidney and liver dysfunction,
acute short-term memory loss, and severe cognitive impairment. People with heavy
environmental exposure have exhibited symptoms as well. In a 1998 study, such environmental
exposure was definitively linked with cognitive impairment, and less consistently linked with
physical symptoms.
Even with no visible signs of the algae blooms, shellfish such as oysters, clams and
mussels can carry the toxins produced by some types of algae in their tissue. These can then
affect people who eat the contaminated shellfish. The 1995 National Shellfish Register of
Classified Growing Waters published by the National Oceanic and Atmospheric Administration
(NOAA) identifies over 100 shellfish bed impairments (shellfish not approved for harvest) due to
feedlots.
c.
Trace Elements
Some of the trace elements in manure are essential nutrients for human physiology;
however, they can induce toxicity at elevated concentrations. These elements include the feed
additives zinc, arsenic, copper, and selenium. Although these elements are typically present in
relatively low concentrations in manure, they are of concern because of their ability to persist in
the environment and to bioconcentrate in plant and animal tissues. These elements could pose a
hazard if manure is overapplied to land.
Trace elements are associated with a variety of illnesses. For example, arsenic is
carcinogenic to humans, based on evidence from human studies; some of these studies have
found increased skin cancer and mortality from multiple internal organ cancers in populations
who consumed drinking water with high levels of inorganic arsenic. Arsenic is also linked with
noncancer effects, including hyperpigmentation and possible vascular complications. Selenium
is associated with liver dysfunction and loss of hair and nails, and zinc can result in changes in
copper and iron balances, particularly copper deficiency anemia.
58
-------
d. Odors
Odor is a significant concern because of its documented effect on moods, such as
increased tension, depression, and fatigue. Odor also has the potential for vector attraction, and
has been associated with a negative impact on property values. Additionally, many of the odor-
causing compounds in manure can cause physical health impacts. For example, hydrogen sulfide
is toxic,, and ammonia gas is a nasal and respiratory irritant.
4. Recreational Impacts
As discussed above, CAFO pollutants contribute to the increase in turbidity, increase in
eutrophication and algal blooms, and reduction of aquatic populations in rivers, lakes, and
estuaries. Impaired conditions interfere with recreational activities and aesthetic enjoyment of
these water bodies. Recreational activities include fishing, swimming, and boating. Fishing is
reduced when fish populations decrease. Swimming is limited by increased risk of infection
when pathogens are present. Boating and aesthetic enjoyment decline with the decreased
aesthetic appeal caused by loss of water clarity and water surfaces clogged by algae. These
impacts are more fully discussed in Section XI of this preamble.
VI. What Are Key Characteristics of the Livestock and Poultry Industries?
A. Introduction and Overview
1. Total Number and Size of Animal Confinement Operations
USDA reports that there were 1.1 million livestock and poultry farms in the United States
in 1997. This number includes all operations that raise beef, dairy, pork, broilers, egg layers, and
turkeys, and includes both confinement and non-confinement (grazing and rangefed) production.
Only operations that raise animals in confinement will be subject to today's proposed regulations.
For many of the animal sectors, it is not possible to precisely determine what proportion
of the total livestock operations are confinement operations and what proportion are grazing
operations only. Data on the number of beef and hog operations that raise animals in
confinement are available from USDA. Since most large dairies have milking parlors, EPA
assumes that all dairy operations are potentially confinement operations. In the poultry sectors,
there are few small non-confinement operations and EPA assumes that all poultry operations
confine animals. EPA's analysis focuses on the largest facilities in these sectors only.
Using available 1997 data from USDA, EPA estimates that there are about 376,000 AFOs
that raise or house animals in confinement, as defined by the existing regulations (Table 6-1).
59
-------
Table 6-1 presents the estimated number of AFOs and the corresponding animal inventories for
1997 across select size groupings. These estimates are based on the number of "animal units"
(AU) as defined in the existing regulations at 40 CFR 122, with the addition of the revisions that
are being proposed for immature animals and chickens. Data shown in Table 6-1 are grouped by
operations with more than 1,000 AU and operations with fewer than 300 AU.
As shown in Table 6-1, there were an estimated 12,660 AFOs with more that 1,000 AUin
1997 that accounted for about 3 percent of all confinement operation. In most sectors, these
larger-sized operations account for the majority of animal production. For example, in the beef,
turkey and egg laying sectors, operations with more than 1,000 AU accounted for more than 70
percent of all animal inventories in 1997; operations with more than 1,000 AU accounted for
more than 50 percent of all hog, broiler, and heifer operations (Table 6-1). In contrast, operations
with fewer than 300 AU accounted for 90 percent of all operations, but a relatively smaller share
of animal production.
USDA personnel have reviewed the data and assumptions used to derive EPA's estimates
of the number of confinement operations. Detailed information on how EPA estimated the
number of AFOs that may be subject to today's proposed regulations can be found in the
Development Document for the Proposed Revisions to the National Pollutant Discharge
Elimination System Regulation and the Effluent Guidelines for Concentrated Animal Feeding
Operations (referred to as the "Development Document").
Table 6-1. Number of AFOs and Animals On-Site, by Size Group, 1997
Sector/
Size Category
Cattle
Veal
Heifers
Dairy
Hogs^F*
Hogs: FF *
Broilers
Layers: wet *
Layers: dry *
Turkeys
Total*
Total
AFOs
>1000
AU"
<300
AU
(number of operations)
106,080
850
1,250
116,870
53,620
64,260
34,860
3,110
72,060
13,720
375,700
2,080
10
300
1,450
1,670
2,420
3t940
50
590
370
12,660
102,000
640
200
109,740
48,700
54,810
20,720
2,750
70,370
12,020
336,590
Total
>1000
AU
<300
AU
(number of animals, 1000's)
26,840
270
850
9,100
18,000
38,740
1,905,070
392,940
112,800
na
22,790
10
450
2,050
9,500
21,460
1,143,040
275,060
95,880
na
2,420
210
80
5,000
2,700
5,810
476,270
58,940
2,260
na
60
-------
Sector/
Size Category
Total
AFOs
>1000
AU"
<300
AU
(number of operations) .
Total
>1000
All
<300
AU
(number of animals, 1000's)
Source: Derived by USDA from published USDA/NASS data, including 1997 Census of Agriculture. In some
cases, available data are used to interpolate data for some AU size categories (see EPA's Development Document).
Data for veal and heifer operations are estimated by USDA. Totals may not add due to rounding.
" As defined for the proposed CAFO regulations, one AU is equivalent to: one slaughter or feeder cattle, calf or
heifer; 0.7 mature dairy cattle; 2.5 hogs (over 55 pounds) or 5 nursery pigs; 55 turkeys; and 100 chickens
regardless of the animal waste system used.
1 "Hogs: FF' are farrow-finish (includes breeder and nursery pigs); "Hogs: GF' are grower-finish only.
31 "Layers: wet" are operations with liquid manure systems; "Layers: dry" are operations with dry systems.
* "Total AFOs" eliminates double counting of operations with mixed animal types. Based on survey level Census
data for 1992, operations with mixed animal types account for roughly 25 percent of total AFOs.
2. Total Number of CAFOs Subject to the Proposed Regulations
Table 6-2 presents the estimated number of operations that would be defined as a CAFO
under each of the two regulatory alternatives being proposed. The "two-tier structure" would
define as CAFOs all animal feeding operations with more than 500 AU. The "three-tier
structure" would define as CAFOs all animal feeding operations with more than 1,000 AU and
any operation with more than 300 AU, if they meet certain "risk-based" conditions, as defined in
Section vn. Table 6-2 presents the estimated number of CAFOs in terms of number of
operations with more than 1,000 AU and operations for each co-proposed middle category
(operations with between 500 and 1,000 AU and between 300 and 1,000 AU, respectively).
Based on available USDA data for 1997, EPA estimates that both proposed alternative
structures would regulate about 12,660 operations with more than 1,000 AU, This estimate
adjusts for operations with more than a single animal type. The two alternatives differ in the
manner in which operations with less than 1,000 AU would be defined as CAFOs and, therefore,
subject to regulation, as described in Section VEL As shown in Table 6-2, in addition to the
12,660 facilities with more than 1,000 AU, the two-tier structure at 500 AU threshold would
regulate an additional 12,880 operations with between 500 and 1,000 AU. Including operations
with more than 1,000 AU, the two-tier structure regulates a total of 25,540 AFOs that would be
subject to the proposed regulations (7 percent of all AFOs).
Under the three-tier structure, an estimated 39,330 operations would be subject to the
proposed regulations (10 percent of all AFOs), estimated as the total number of animal
confinement operations with more than 300 AU. See Table 6-1. Of these, EPA estimates that a
total of 31,930 AFOs would be defined as CAFOs (9 percent of all AFOs) and would need to
obtain a permit (Table 6-2), while an estimated 7,400 operations would certify that they do not
need to obtain a permit. Among those operations needing a permit, an estimated 19,270
operations have between 300 to 1,000 AU. For more information, see the Economic Analysis.
61
-------
Table 6-2. Number of Potential CAFOs by Select Regulatory Alternative, 1997
Sector/Size
Category
Cattle
Veal
Heifers
Dairy
Hogs: GF "
Hogs: FF "
Broilers
Layers: wet v
Layers: dry *
Turkeys
Total3'
"Two-tier"
>300AU
>SOOAU
>7SOAU
(Operations)
4,080
210
1,050
7,140
4,920
9,450
14,140
360
1,690
2,100
39,320
3,080
90
800
3,760
2,690
5,860
9,780
360
1,280
1,280
25,5-40
2,480
40
420
2,260
2,300
3,460
7,780
210
1,250
740
19,100
>300AU
4%
25%
84%
6%
9%
15%
41%
12%
2%
15%
10.5%
>500AU
>750AU
(%Total)
3%
10%
64%
3%
5%
9%
28%
12%
2%
9%
6.8%
2%
4%
34%
2%
4%
5%
22%
7%
2%
5%
5.1%
"Three-tier"
>300AU
(#)
3,210
140
980
6,480
2,650
5,700
13,740
360
1,650
2,060
31,930
(%Total)
3%
16%
78%
6%
5%
9%
39%
12%
2%
15%
8.5%
Source: See Table 6-1.
u pp_ farrow-finish (includes breeder and nursery pigs); GB=grower-finish.
•' "Layers: wet" are operations with liquid manure systems. "Layers: dry" are operations with dry systems.
* "Total" eliminates double counting of operations with mixed animal types (see Table 6-1).
EPA estimated the number of operations that may be defined as CAFOs under the three-
tier structure using available information and compiled data from USD A, State Extension
experts, and agricultural professionals. These estimates rely on information about the percentage
of operations in each sector that would be impacted by the "risk-based" criteria described in
Section VH In some cases, this information is available on a state or regional basis only and is
extrapolated to all operations nationwide. EPA's estimates reflect information from a majority of
professional experts in the field. Greater weight is given to information obtained by State
Extension agents, since they have broader knowledge of the industry in their state. More detailed
information on how EPA estimated the number of operations that may be affected by the
proposed regulations under the three-tier structure is available in the rulemaking record and in
the Development Document.
EPA is also requesting comment on two additional options for the scope of the rule. One
of these is an alternative two-tier structure with a threshold of 750 AU. Under this option, an
estimated 19,100 operations, adjusting for operations with more than a single animal type, would
be defined as CAFOs. This represents about 5 percent of all CAFOs, and would affect an
estimated 2,930 beef, veal, and heifer operations, 2,260 dairies, and 5,750 swine and 9,980
poultry operations (including mixed operations). Under the other alternative, a variation of the
three-tier structure being co-proposed today, the same 39,320 operations with 300 AU or greater
would potentially be defined as CAFOs. However, the certification conditions for being defined
as a CAFO would be different for operations with 300 to 1,000 AU (as described later in Section
62
-------
VH). EPA has not estimated how many operations would be defined as CAFOs under this
alternative three-tier approach, although EPA expects that it would be fewer than the 31,930
estimated for the three-tier approach being proposed today. If after considering comments, EPA
decides to further explore this approach, it will conduct a full analysis of the number of
potentially affected operations.
EPA does not anticipate that many AFOs with less than 500 AU (two-tier structure) or
300 AU (three-tier structure) will be subject to the proposed requirements. In the past 20 years,
EPA is aware of very few AFOs that have been designated as CAFOs. Based on available
USDA analyses that measure excessive nutrient application on cropland in some production
areas and other farm level data by sector, facility size and region, EPA estimates that designation
may bring an additional 50 operations under the proposed two-tier structure each year
nationwide. EPA assumed this estimate to be cumulative such that over a 10-year period
approximately 500 AFOs may become designated as CAFOs and therefore subject to the
proposed regulations. EPA expects these operations to consist of beef, dairy, farrow-finish hog,
broiler and egg laying operations that are determined to be significant contributors to water
quality impairment. Under the three-tier structure, EPA estimates that fewer operations would be
designated as CAFOs, with 10 dairy and hog operations may be designated each year, or 100
operations over a 10-year period. Additional information is provided in the Economic Analysis.
EPA expects that today's proposed regulations would mainly affect livestock and poultry
operations that confine animals. In addition to CAFOs, however, the proposed regulations would
also affect businesses that contract out the raising or finishing production phase to a CAFO but
exercise "substantial operational control" over the CAFO (as described in Section VII.C.6).
EPA expects that affected businesses may include packing plants and slaughtering
facilities that enter into a production contract with a CAFO. Under a production contract, a
contractor (such as a processing firm, feed mill, or other animal feeding operation) may either
own the animals and/or may maintain control over the type of production practices used by the
CAFO. Processor firms that enter into a marketing contract with a CAFO are not expected to be
subject to co-permitting requirements since the mechanism for "substantial operational control"
generally do not exist. Given the types of contract arrangements that are common in the hog and
poultry industries, EPA expects that packers/slaughterers in these sectors may be subject to the
proposed co-permitting requirements.
As discussed later in Sections VI.D.1 and VI.E.1, EPA estimates that 94 meat packing
plants that slaughter hogs and 270 poultry processing facilities may be subject to the proposed
co-permitting requirements. Other types of processing firms, such as further processors, food
manufacturers, dairy cooperatives, and Tenderers, are not expected to be affected by the co-
permitting requirements since these operations are further up the marketing chain and do not
likely contract with CAFOs to raise animals. Fully vertically integrated companies (e.g., where
the packer owns the CAFO) are not expected to require a co-permit since the firm as the owner
of the CAFO would require only a single permit. EPA solicits comment on these assumptions as
63
-------
part of today's rulemaking proposal. EPA also expects that non-CAFO, crop fanners who
receive manure from CAFOs would be affected under one of the two co-proposed options
relating to offsite management of manure (see Section VH).
Additional information is provided in the Economic Impact Analysis of Proposed Effluent
Limitations Guidelines and National Pollutant Discharge Elimination System for Concentrated
Animal Feeding Operations (referred to as "Economic Impact Analysis").
3. Manure and Manure Nutrients Generated Annually at AFOs
USDA's National Resources Conservation Service (NRCS) estimates that 128.2 billion
pounds of manure are "available for land application from confined ALT' from the major
livestock and poultry sectors; EPA believes these estimates equate to the amount of manure that
is generated at animal feeding operations since USDA's methodology accounts for all manure
generated at confinement facilities. USDA reports that manure nutrients available for land
application totaled 2.6 billion pounds of nitrogen and 1.4 billion pounds of phosphorus in 1997
(Table 6-3). USDA's estimates do not include manure generated from other animal agricultural
operations, such as sheep and lamb, goats, horses, and other farm animal species.
Table 6-3. Manure and Manure Nutrients "Available for Land Application", 1997
Sector
Cattle"
Dairy
Hogs
Ail Poultry
Total
USDA Estimates: "Available for
Application" from Confined AU" *
Total
Manure
(bill. IDS)
32.9
45.5
16.3
33.5
128.2
Total
Nitrogen
Total
Phosphorus
(million pounds)
; 521
! 636
274
1,153
2,583
362
244
277
554
1,437
EPA Estimates:
Percentage Share by Facility Size Group *
>1000AU
>750AU
>500AU
>300AU
(percent of total manure nutrients applied)
83%
23%
55%
49%.
49%
85%
31%
63%
66%
58%
86%
37%
69%
77%
64%
90%
43%
78%
90%
72%
Source:
a/ Manure and nutrients are from USDA/NRCS using 1997 Census of Agriculture and procedures documented
developed by USDA. Numbers are "dry state" and reflect the amount of manure nutrient "available for application
from confined ALT' and are assumed by EPA to coincide with manure generated at confined operations.
b/ Percentage shares are based on the! share of animals within each facility size group for each sector (shown in
Table 6-1) across three facility size groups.
c/ "Cattle" is the sum of USDA's estimate for livestock operations "with fattened cattle" and "with cattle other than
fattened cattle and milk cows."
The contribution of manure and manure nutrients varies by animal type. Table 6-3 shows
that the poultry industry was the largest producer of manure nutrients in 1997, accounting for 45
percent (1.2 billion pounds) of all nitrogen and 39 percent (0.6 billion pounds) of all phosphorus
64
-------
available for land application that year. Among the poultry sectors, EPA estimates that
approximately 55 percent of all poultry manure was generated by broilers, while layers generated
20 percent and turkeys generated 25 percent. The dairy industry was the second largest producer
of manure nutrients, generating 25 percent (0.6 billion pounds) of all nitrogen and 17 percent (0.2
billion pounds) of all phosphorus (Table 6-3). Together, the hog and beef sectors accounted for
about one-fourth of all nitrogen and nearly 40 percent of all phosphorus from manure.
Table 6-3 shows EPA's estimate of the relative contribution of manure generated by
select major facility size groupings, including coverage for all operations with more than 1,000
AU, all operations with more than 750 AU or 500 AU (two-tier structure), and all operations
with more than 300 AU (three-tier structure). EPA estimated these shares based on the share of
animals within each facility size group for each sector, as shown in Table 6-1. Given the number
of AFOs that may be defined as CAFOs and subject to the proposed regulations (Table 6-1), EPA
estimates that the proposed effluent guidelines and NPDES regulations will regulate 5 to 7
percent (two-tier structure) to 10 percent (three-tier structure) percent of AFOs nationwide.
Coverage in terms of manure nutrients generated will vary by the proposed regulatory approach.
As shown in Table 6-3, under the 500 AU two-tier structure, EPA estimates that the proposed
requirements will capture 64 percent of all CAFO manure; under the 750 AU two-tier structure,
EPA estimates that the proposed requirements will capture 58 percent of all CAFO manure.
Under the three-tier structure, EPA estimates that the proposed requirements will capture 72
percent of all CAFO manure generated annually (Table 6-3). The majority of this coverage (49
percent) is attributable to regulation of operations with more than 1,000 AU.
Additional information on the constituents found in livestock and poultry manure and
wastewater is described in Section V. Information on USDA's estimates of nutrients available
for land application and on the relative consistency of manure for the main animal types is
provided in the Development Document.
B. Beef Subcategory
1. General Industry Characteristics
Cattle feedlots are identified under NAICS 112112 (SIC 0211, beef cattle feedlots) and
NAICS 112111, beef cattle ranching and farming (SIC 0212, beef cattle, except feedlots). This
sector comprises establishments primarily engaged in feeding cattle and calves for fattening,
including beef cattle feedlots and feed yards (except stockyards for transportation).
The beef cattle industry can be divided into four separate producer segments:
• Feedlot operations fatten or "finish" feeder cattle prior to slaughter and constitute
the final phase of fed cattle production. Calves usually begin the finishing stage
after 6 months of age or after reaching at least 400 pounds. Cattle are typically
65
-------
held for 150 to 180 days and weigh between 1,150 to 1,250 pounds (for steers) or '
1,050 to 1,150 pounds (for heifers) at slaughter.
] !,
• Veal operations raise male dairy calves for slaughter. The majority of calves are i;
"special fed" or raised on a low-fiber diet until about 16 to 20 weeks of age, when j!
they weigh about 450 pounds. fl
• Stacker or backgrounding operations coordinate the flow of animals from '••,
breeding operations to feedlots by feeding calves after weaning and before they i!
enter a feedlot. Calves are kept between 60 days to 6 months or until they reach a !
weight of about 400 pounds.
• Cow-calf producers typically maintain a herd of mature cows, some replacement
heifers, and a few bulls, and breed and raise calves to prepare them for fattening at
a feediot. Calves typically reach maturity on pasture and hay and are usually sold
at weaning. Cow-calf operators may also retain the calves and continue to raise
them on pasture until they reach 600 to 800 pounds and are ready for the feedlot.
Animal feeding operations in this sector that may be affected by today's proposed
regulations include facilities that confine animals. Information on the types of facilities in this
sector that may be covered by the proposed regulations is provided in Section VQ.
USDA reports that there were more than 106,000 beef feedlots in 1997, with a total
inventory of 26.8 million cattle (Table 6.1). Due to ongoing consolidation in the beef sector, the
total number of operations has dropped by more than one-half since 1982, when there were
240,000 operations raising fed cattle. EPA also estimates that there were 850 veal operations
raising 0.3 million head and 1,250 stand-alone heifer operations raising 0.9 million head in 1997.
Only a portion of these operations would be subject to the proposed regulations.
As shown in Table 6-2, under the two-tier structure, EPA estimates that there are 3,080
beef feedlots with more than 500 head (500 AU of beef cattle). EPA also estimates that there are
about 90 veal operations and 800 heifer operations that may be subject to the proposed
regulations. Under the three-tier structure, EPA estimates that 3,210 beef feedlots, 140 veal and
980 heifer operations with more than 300 head (300 AU) would meet the "risk-based" conditions
described in Section VH and thus require a permit.
EPA expects that few operations that confine fewer than 500 AU of beef, veal, or heifers,
would be designated by the permit authority. For the purpose of estimating costs, EPA assumes
that no beef, veal, or heifer operations would be designated as CAFOs and subject to the
proposed regulations under the three-tier structure. Under the two-tier structure, EPA assumes
that about four beef feedlots located in the Midwest would be designated annually, or 40 beef
feedlots projected over a 10-year period.
66
-------
The cattle feeding industry is concentrated in the Great Plains and Midwestern states.
The majority of feedlots are located in the Midwest. However, the majority of large feedlots (i.e.,
operations with more than 1,000 head) are located in four Great Plains states—Texas, Kansas,
Nebraska, and Colorado—accounting for nearly 80 percent of annual fed cattle marketings.
Table 6-1 shows that, although the majority of beef feedlots (over 98 percent) have capacity
below 1,000 head, larger feedlots with more than 1,000 head accounted for the majority of
animal production. In 1997, feedlots with more than 1,000 head accounted for 85 percent of the
nation's fed cattle inventory and sales. Cattle feeding has become increasingly concentrated over
the last few decades. Feedlots have decreased in number, but increased in capacity. The decline
in the number of operations is mostly among feedlots with less than 1,000 head.
The majority of cattle and calves are sold through private arrangements and spot market
agreements. Production contracting is not common in the beef sector. Most beef sector contracts
are marketing based where operations agree to sell packers a certain amount of cattle on a
predetermined schedule. Production contracts are uncommon, but may be used to specialize in a
single stage of livestock production. For example, custom feeding operations provide finish
feeding under contract. Backgrounding or stocker operations raise cattle under contract from the
time the calves are weaned until they are on a finishing ration in a feedlot. As shown by 1997
USDA data of animal ownership, production contracts account for a relatively small share (4
percent) of beef production. These same data show that production contracts are used to grow
replacement breeding stock.
Despite the limited use of contracts for the finishing and raising phase of production,
EPA expects that no businesses, other than the CAFO where the animals are raised, will be
subject to the proposed co-permitting requirements. Reasons for this assumption are based on
data from USDA on the use of production contracts and on animal ownership at operations in
this sector. Additional information is provided in Section 2 of the Economic Analysis. EPA is
seeking comment on this assumption as part of today's notice.
2. Farm Production and Waste Management Practices
Beef cattle may be kept on unpaved, partly paved, or totally paved lots. The majority of
beef feedlots use unpaved open feedlots. In open feedlots, protection from the weather is often
limited to a windbreak near the fence in the winter and/or sunshade in the summer; however,
treatment facilities for the cattle and the hospital area are usually covered. Confinement feeding
barns with concrete floors are also sometimes used at feedlots in cold or high rainfall areas, but
account for only 1 to 2 percent of all operations. Smaller beef feedlots with less than 1,000 head,
especially in areas with severe winter weather and high rainfall, may use open-front barns, slotted
floor housing, or housing with sloped gutters.
Wastes produced from beef operations include manure, bedding, and contaminated
runoff. Paved lots generally produce more runoff than unpaved lots. Unroofed confinement
areas typically have a system for collecting and confining contaminated runoff. Excessively wet
67
-------
lots result in decreased animal mobility and performance. For this reason, manure is often
stacked into mounds for improved drainage and drying, as well as providing dry areas for the
animals. If the barn has slotted floors, the manure is collected beneath slotted floors, and is
scraped or flushed to the end of the barn where it flows or is pumped to a storage area for later
application via irrigation or transported in a tank wagon. Waste may also be collected using
flushing systems.
Waste from a beef feedlot may be handled as a solid or liquid. Solid manure storage can
range from simply constructed mounds within the pens to large stockpiles. In some areas, beef
feedlot operations may use a settling basin to remove bulk solids from the pen runoff, reducing
the volume of solids prior to entering a storage pond, therefore increasing storage capacity. A
storage pond is typically designed to hold the volume of manure and wastewater accumulated
during the storage period, including additional storage volume for normal precipitation, minus
evaporation, and storage volume to contain a 25-year, 24-hour storm event. An additional safety
volume termed "freeboard" is also typically built into the storage pond design.
Veal are raised almost exclusively in confinement housing, generally using individual
stalls or pens. Veal calves are raised on a liquid diet and their manure is highly liquid. Manure
is typically removed from housing facilities by scraping or flushing from collection channels and
then flushing or pumping into liquid waste storage structures, ponds, or lagoons.
Waste collected from the feedlot may be transported within the site to storage, treatment,
and use or disposal areas. Solids and semi solids are typically transported using mechanical
conveyance equipment, pushing the waste down alleys, and transporting the waste in solid
manure spreaders. Flail-type spreaders, dump trucks, or earth movers may also be used to
transport these wastes. Liquids and slurries are transferred through open channels, pipes, or in a
portable liquid tank. The most common form of utilization is land application. However, the
amount of cropland and pastureland that is available for manure application varies at each
operation. Cattle waste may also be used as a bedding for livestock, marketed as compost, or
used as an energy source.
Additional information on the types of farm production and waste management practices
is provided in the Development Document.
C. Dairy Subcategory
1. General Industry Characteristics
Operations that produce milk are identified under NAICS 11212, dairy cattle and milk
production (SIC 0241, dairy farms).
A dairy operation may have several types of animal groups present, including:
68
-------
Calves (0-5 months);
Heifers (6-24 months);
-Lactating dairy cows (i.e., currently producing milk); and;
Cows close to calving and dry cows (i.e,, not currently producing milk); and
Bulls.
Animal feeding operations in this sector that may be affected by today's proposed
regulations include facilities that confine animals. Information on the types of facilities in this
sector that may be covered by the proposed regulations is provided in Section VII.
In 1997, there were 116,900 dairy operations with a year-end inventory of 9.1 million
milk cows that produced 156.1 billion pounds of milk (Table 6.1). Only a portion of these
operations would be subject .to the proposed regulations. As shown in Table 6.2, under the two-
tier structure, EPA estimates that there are 3,760 dairy operations that confine more than 350
milk cows (i.e., 500 AU equivalent). Under the three-tier structure, EPA estimates that 6,480
dairy operations with more than 200 head (i.e., 300 AU equivalent) would meet the "risk-based"
conditions described in Section YE and thus require a permit.
Table 6-1 shows that dairies with fewer than 200 head account for the majority (95
percent) of milking operations and account for 55 percent of the nation's milk cow herd. EPA
expects that under the two-tier structure designation of dairies with fewer than 350 milk cows
would be limited to about 22 operations annually, or 220 dairies projected over a 10-year time
period. Under the three-tier structure, EPA expects annual designation of dairies with fewer than
200 milk cows would be limited to about 5 operations, or 50 operations over a 10-year period.
EPA expects that designated facilities will be located in more traditional farming regions.
More than one-half of all milk produced nationally is concentrated among the top five
producing states: California, Wisconsin, New York, Pennsylvania, and Minnesota. Other major
producing states include Texas, Michigan, Washington, Idaho, and Ohio. Combined, these ten
states accounted for nearly 70 percent of milk production in 1997. Milk production has been
shifting from traditional to nontraditional milk producing states. Operations in the more
traditional milk producing regions of the Midwest and Mid-Atlantic tend to be smaller and less
industrialized. Milk production at larger operations using newer technologies and production
methods is emerging in California, Texas, Arizona, New Mexico, and Idaho. Milk production in
these states is among the fastest-growing in the nation, relying on economies of scale and a
specialization in milk production to lower per-unit production costs. (Additional data on these
trends are provided in Section FV.C).
69
-------
Over the past few decades, the number of dairy operations and milk cow inventories has !
dropped, while overall milk production has been increasing. USDA reports that while the
number of dairy operations dropped by more than one-half from 277,800 in 1982 to 116,900 in
1997, the amount of milk produced annually at these operations rose from 135.5 billion pounds ,
to 156.1 billion pounds. These figures signal trends toward increased consolidation, large gains
in per-cow output, and increases in average herd size per facility. From 1982 to 1997, the
average number of dairy cows per facility doubled from 40 cows to 80 cows per facility.
Although milk and dairy food production has become increasingly specialized, it has not
experienced vertical integration in the same way as other livestock industries. The use of
production contracts is uncommon in milk production. In part, this is attributable to the large
role of farmer-owned, farmer-controlled dairy cooperatives, which handle about 80 percent of the
milk delivered to plants and dealers. Milk is generally produced under marketing-type contracts
through verbal agreement with their buyer or cooperative. Data from USDA indicate that little
more than 1 percent of milk was produced under a production contract in 1997. Use of
production contracts in the dairy sector is mostly limited to contracts between two animal feeding
operations to raise replacement heifers.
Despite the limited use of contracts between operations to raise replacement herd, EPA
expects that no businesses other than the CAFO where the animals are raised will be subject to
the proposed co-permitting requirements. Reasons for this assumption are based on data from
USDA on the use of production contracts and on animal ownership at operations in this sector.
Additional information is provided in Section 2 of the Economic Analysis. EPA is seeking
comment on this assumption as part of today's notice of the proposed rulemaking.
2. Farm Production and Waste Management Practices
Animals at dairy operations may be confined in free-stalls, drylots, tie-stalls, or loose
housing. Some may be allowed access to exercise yards or open pasture. The holding area
confines cows that are ready for milking. Usually, this area is enclosed and is part of the milking
center, which in turn may be connected to the barn or located in the immediate vicinity of the
cow housing. Milking parlors are separate facilities where the cows are milked and are typically
cleaned several times each day to remove manure and dirt. Large dairies tend to have automatic
flush systems, while smaller dairies simply hose down the area. Larger dairies in the northern
states, however, may be more likely to use continuous mechanical scraping of alleys in barns.
Cows that are kept in tie-stalls may be milked directly from their stalls.
Waste associated with dairy production includes manure, contaminated runoff, milking
house waste, bedding, spilled feed and cooling water. Dairies may either scrape or flush manure,
depending on the solids content in manure and wastewater. Scraping systems utilize manual,
mechanical, or tractor-mounted equipment to collect and transport manure from the production
area. Flushing systems use fresh or recycled lagoon water to move manure. Dairy manure as
excreted has a solids content of about 12 percent and tends to act as a slurry; however, it can be
70
-------
handled as a semisolid or a solid if bedding is added. Semisolid manure has a solids content
ranging from 10 to 16 percent. Dilution water may be added to the manure to create a slurry with
a solids content of 4 to 10 percent. If enough dilution water is added to the manure to reduce the
solids content below 4 percent, the waste is considered to be a liquid.
Manure in a solid or semisolid state minimizes the volume of manure that is handled. In
a dry system, the manure is collected on a regular basis and covered to prevent exposure to rain
and runoff; sources of liquid waste, such as milking center waste, are typically handled
separately. In a liquid or slurry system, the manure is typically mixed with flushing system water
from lagoons; the milking center effluent is usually mixed in with the animal manure in the
lagoon or in the manure transfer system to ease pumping. Liquid systems are usually favored by
large dairies because they have lower labor cost and because the dairies tend to use automatic
flushing systems.
Methods used at dairy operations to collect waste include mechanical/tractor scraper,
flushing systems, gutter cleaner/gravity gutters, and slotted floors. Manure is typically stored as a
slurry or liquid in a waste storage pond or in structural tanks. Milking house waste and
contaminated runoff must be stored as liquid in a waste storage pond or structure. One common
practice for the treatment of waste at dairies includes solids separation. Another common
practice for the treatment of liquid waste at dairies includes anaerobic lagoons. The transfer of
dairy waste depends on its consistency: liquid and slurry wastes can be transferred through open
channels, pumps, pipes, or in a portable tank; solid and semi-solid waste can be transferred by
mechanical conveyance, solid manure spreaders, or by being pushed down curbed concrete
alleys. The majority of dairy operations dispose of their waste through land application. The
amount of crop and pastureland available for land application of manure varies by operation.
Additional information on the types of farm production and waste management practices
is provided in the Development Document.
D. Hog Subcategory
1. General Industry Characteristics
Hog operations that raise or feed hogs and pigs either independently or on a contract basis
are identified under NAJCS 11221, hog and pig farming (SIC 0213, hogs).
Hog operations may be categorized by six facility types based on the life stage of the
animal in which they specialize:
• Farrow-to~wean operations that breed pigs and ship 10- to 15-pound pigs to
nursery operations.
71
-------
Farrowing-nursery operations that breed pigs and ship 40- to 60-pound "feeder" j
pigs to growing-finishing operations. ;
;i
Nursery operations that manage weaned pigs (more than 10 to 15 pounds) and ji
:|
ship 40- to 60-pound "feeder" pigs to growing-finishing operations.
Growing-finishing or feeder-to-finish operations that handle 40- to 60-pound pigs
and "finish" these to market weights of about 255 pounds.
,l
Farrow-to-finish operations that handle all stages of production from breeding :•
through finishing.
Wean-to-finish operations that handle all stages of production, except breeding,
from weaning (10-to 15-pound pigs) through finishing.
Animal feeding operations in this sector that may be affected by today's proposed
regulations include facilities that confine animals. Information on the types of facilities in this
sector that may be covered by the proposed regulations is provided in Section VII.
In 1997, USDA reports that there were 117,880 hog operations with 56.7 million market
and breeding hogs (Table 6-1). Not all of these operations would be subject to the proposed
regulations. As shown in Table 6-2, under the two-tier structure, EPA estimates that there are
5,860 farrow-finish feedlots (including breeder and nursery operations) and 2,690 grower-finish
feedlots with more than 1,250 head (i.e., 500 AU equivalent). Under the three-tier structure,
EPA estimates that 5,700 farrow-finish feedlots (including breeder and nursery operations) and
2,650 grower-finish feedlots with more than 750 head (i.e., 300 AU equivalent) would meet the
"risk-based" conditions described in Section VII and thus require a permit.
Table 6-1 shows that the majority of hog operations (93 percent) have fewer than 1,250
head, accounting for about one-third of overall inventories. Nearly half the inventories are
concentrated among the 3 percent of operations with more than 2,500 head. Under the two-tier
structure EPA expects that designation of hog operations with fewer than 1,250 head will be
limited to about 20 confinement operations annually, or 200 operations over a 10-year time
period. Under the three-tier structure, EPA expects that about 5 hog operations with fewer than
750 head would be designated annually, or 50 operations over a 10-year time period. EPA
expects that designated facilities will be located in more traditional farming regions.
72
-------
Hog production is concentrated among the top five producing states, including Iowa,
North Carolina, Minnesota, Dlinois, and Missouri. Together these states supply 60 percent of
annual pork supplies. The majority of operations are located in the Midwest; however, the
Southeast has seen rapid growth in hog production in the past decade. Recent growth in this
region is due to increased vertical integration, proximity to growing consumer markets, and the
mild climate, which offers lower energy costs and improved feed efficiency. (Additional data on
these trends are provided in Section IV.C).
The hog sector is undergoing rapid consolidation and becoming increasingly specialized.
USDA reports that while the number of hog operations dropped by nearly two-thirds between
1982 and 1997 (from 329,800 to 109,800 operations), the number of feeder pigs sold has risen
from 20.0 million to 35.0 million marketed head over the same period. As in other livestock
sectors, increasing production from fewer operations is attributable to expansion at remaining
operations. Data from USDA indicate that the average number of hogs per facility increased
from 170 pigs in 1982 to 560 pigs in 1997. Increasing production is also attributable to
substantial gains in production efficiency and more rapid turnover, which has allowed hog
farmers to produce as much .output with fewer animals.
The hog sector is rapidly evolving from an industry of small, independent firms linked by
spot markets to an industry of larger firms that are specialized and vertically coordinated through
production contracting. This is particularly true of large-scale hog production in rapidly growing
hog production states such as North Carolina. Production contracting is less common in the
Midwest where coordination efforts are more diversified.
Information from USDA on animal ownership at U.S. farms provides an indication of the
potential degree of processor control in this sector. Data from USDA indicate the use of
production contracts accounted for 66 percent of hog production in the Southern and Mid-
Atlantic states in 1997, especially among the larger producers. This indicates that a large share
of hog production may be under the ownership or control of processing firms that are affiliated
with hog operations in this region. This compares to the Midwest, where production contracting
accounted for 18 percent of hog production. Production contracting in the hog sector differs
from that in the beef and dairy sectors since it is becoming increasingly focused on the finishing
stage of production, with the farmer ("grower") entering into an agreement with a meat packing
or processing firm ("integrator"). Production contracts are also used between two independent
animal feeding operations to raise immature hogs.
Businesses that contract out the growing or finishing phase of production to an AFO may
also be affected by the proposed co-permitting requirements. Affected businesses may include
other animal feeding operations as well as processing sector firms. By NAICS code, meat
packing plants are classified as NAICS 311611, animal slaughtering (SIC 2011, meat packing
plants). The Department of Commerce reports that there were a total of 1,393 red meat
slaughtering facilities that slaughter hogs as well as other animals, including cattle and calves,
sheep, and lamb. Of these, Department of Commerce's 1997 product class specialization
73
-------
identifies 83 establishments that process fresh and frozen pork and 11 establishments that process
or cure pork. These data generally account for larger processing facilities that have more than 20;
employees. EPA believes that processing firms that may be affected by the proposed co-
permitting requirements will mostly be larger facilities that have the administrative and
production capacity to take advantage of various contract mechanisms. This assumption is
supported by information from USDA that indicates that production contracts in the hog sector ;:
are generally associated with the largest producers and processors. Section 2 of the Economic 1
Analysis provides additional information on the basis for EPA's estimate of potential co- !
permittees. EPA is seeking comment on this assumption as part of today's notice of the
proposed rulemaking.
11
Using these Department of Commerce data, EPA estimates that 94 companies engaged in ij
pork processing may be subject to the proposed co-permitting requirements. This estimate does i!
not include other processors under NAICS 311611, including sausage makers and facilities that ij
"further process" hog hides and other by-products because these operations are considered to be i:
further up the marketing chain and likely do not contract out to CAFOs.
2. Farm Production and Waste Management Practices
Many operations continue to have the traditional full range of pork production phases at ;
one facility, known as farrow-to-finish operations. More frequently at new facilities, operations
are specialized and linked into a chain of production and marketing. The evolution in farm
structures has resulted in three distinct production systems to create pork products: 1) farrow-to-
finish; 2) farrowing, nursery, and grow-finish operations; and 3) farrow-to-wean and wean-finish
operations. Most nursery and farrowing operations, as well as practically all large operations of
any type, raise pigs in pens or stalls in environmentally controlled confinement housing. These
houses commonly use slatted floors to separate manure and wastes from the animal. Open
buildings with or without outside access are relatively uncommon at large operations, but can be
used in all phases of pork production. Smaller operations, particularly in the Midwest, may
utilize open lots or pasture to raise pigs.
Hog waste includes manure and contaminated runoff. Most confinement hog operations
use one of three waste handling systems: flush under slats, pit recharge, or deep underhouse pits.
Flush housing uses fresh water or recycled lagoon water to remove manure from sloped floor
gutters or shallow pits. The flushed manure is stored in lagoons or tanks along with any
precipitation or runoff that may come into contact with the manure. Flushing occurs several
times a day. Pit recharge systems are shallow pits under slatted floors with 6 to 8 inches of pre-
charge water. The liquid manure is pumped or gravity fed to a lagoon approximately once a
week. Deep pit systems start with several inches of water, and the manure is stored under the
house until it is pumped out for field application on the order of twice a year. Most large
operations have 90 to 365 days storage. The deep pit system uses less water, creating a slurry
that has higher nutrient concentrations than the liquid manure systems. Slurry systems are more
common in the Midwest and the cooler climates.
74
-------
Dry manure handling systems include those used at open buildings and lots, scraped lots,
hoop houses, deep bedded systems, and high rise hog houses. These systems produce a more
solid manure material that is readily handled with a tractor or front end loader. The solids are
stored in stacks or covered until used as fertilizer. In some cases, solids are composted.
Storage lagoons are used to provide anaerobic bacterial decomposition of organic
materials. When only the top liquid is removed for irrigation or some other use, a limited
amount of phosphorus-rich sludge accumulates in the lagoon, which requires periodic removal.
Vigorous lagoon mixing with an agitator or a chopper prior to irrigation is sometimes done to
minimize the sludge accumulation. In certain climates, a settling and evaporation pond is used to
remove solids, which are dried in a separate storage area. Some lagoons and tanks are covered
with a synthetic material that reduces ammonia volatilization. Covers also prevent rainfall from
entering the system and, therefore, reduce disposal costs.
Land application is the most common form of utilization. To mitigate odor problems and
volatization of ammonia, liquid waste can be injected below the soil surface. Waste may also be
distributed through an irrigation process. Waste management systems for hogs often incorporate
odor control measures, where possible.
Additional information on the types of farm production and waste management practices
is provided in the Development Document.
E. Poultry Subcategory
1. General Industry Characteristics
Poultry operations can be classified into three individual sectors based on the type of
commodity in which they specialize. These sectors include operations that breed and/or raise:
• Broilers or young meat chickens that are raised to a live weight of 4 to 4.5 pounds
and other meat-type chickens, including roasters that are raised to 8 to 9 pounds.
Classification: NAICS 11232, broilers and other meat-type chickens (SIC 0251,
broiler, fryer and roaster chickens).
• Turkeys and turkey hens, including whole turkey hens that range from 8 to 15
pounds at slaughter, depending on market, and also turkey "canners and cut-ups"
75
-------
that range from 22 to 40 pounds. Classification: NAICS 11233, turkey production1;
(SIC 0253, turkey and turkey eggs). j
Hens that lay shell eggs, including eggs that are sold for human consumption and I
eggs that are produced for hatching purposes. Classification: NAICS 11231,
Chicken egg production (SIC 0252, chicken eggs) and NAICS 11234, poultry
hatcheries (SIC 0254, poultry hatcheries).
Animal feeding operations in this sector that may be affected by today's proposed
regulations include facilities that confine animals. Information on the types of facilities in this
sector that may be covered by the proposed regulations is provided in Section VH.
In 1997, the USDA reports that there were 34,860 broiler operations that raised a total of
1.9 billion broilers during the year. There were also 13,720 turkey operations raising a total
112.8 million turkeys. Operations with egg layers and pullets totaled 75,170 with an average
annual inventory of 393 million egg layers on-site. (See Table 6-1). Not all of these operations
would be subject to the proposed regulations.
Under the two-tier structure, EPA estimates that there are 9,780 broiler operations, 1,280
turkey operations and 1,640 egg laying and pullet operations that have more than 500 AU (i.e.,
operations with more than 50,000 chickens and more than 27,500 turkeys). Under the three-tier
structure, EPA estimates that 13,740 broiler operations, 2,060 turkey operations and 2,010 egg
laying operations with more than 300 AU (i.e., operations with more than 30,000 chickens and
more than 16,500 turkeys) would meet the "risk-based" conditions described in Section VIT and
thus require a permit.
EPA expects few, if any, poultry AFOs with fewer than 500 AU will be subject to the
revised requirements. As shown in Table 6-1, most poultry operations have fewer than 500 AU.
Under the two-tier structure, EPA expects that designation of broiler operations with fewer than
50,000 chickens will be limited to two broiler and two egg operations being designated annually,
or a total of 40 poultry operations over a 10-year period. EPA expects that no turkey operations
would be designated as CAFOs and subject to the proposed regulations. EPA expects that no
confinement poultry operations will be designated as CAFOs under the proposed requirements
under the three-tier structure.
Overall, most poultry production is concentrated in the Southeast and in key Midwestern
states. As in the pork sector, the Southeast offers advantages such as lower labor, land, and
energy costs; proximity to end markets; and milder weather, which contributes to greater feed
76
-------
efficiency. Nearly 60 percent of all broiler production is concentrated among the top five
producing states, including Georgia, Arkansas, Alabama, Mississippi, and North Carolina. The
top five turkey producing states also account for about 60 percent of all turkeys sold
commercially. These include North Carolina, Minnesota, Virginia, Arkansas, and California.
Missouri and Texas are also major broiler and turkey producing states. The top five states for
egg production account for more than 40 percent of all egg production, including Ohio,
California, Pennsylvania, Indiana, and Iowa. Other major egg producing states include Georgia,
Texas, Arkansas, and North Carolina.
The number of operations in each of the poultry sectors has been declining while
production has continued to rise. USDA reports that while the number of both turkey and broiler
operations decreased by about 10,000 operations between 1982 and 1997, the number of animals
sold for slaughter rose nearly twofold: the number of broilers sold rose from 3.5 billion to 6.7
billion and the number of turkeys sold rose from 167.5 million to 299.5 million. During the
same period, the number of egg operations dropped nearly two-thirds (from 215,800 operations
in 1982), while the number of eggs produced annually has increased from 5.8 billion dozen to 6.2
billion dozen. Increased production from fewer operations is due to expanded production from
the remaining operations. This is attributable to increases in the average number of animals
raised at these operations as "well as substantial gains in production efficiency and more rapid
turnover, which has allowed operators to produce more with fewer animals. Data from USDA
indicate that average inventory size on poultry operations increased twofold on broiler operations
and rose threefold at layer and turkey operations between 1982 and 1997. (Additional data on
these trends are provided in Section IV.C). As in other sectors, larger operations control most
animal inventories and sales.
The poultry industry is characterized by increasing integration and coordination between
the animal production facility and the processing sector. Vertical integration has progressed to
the point where large multifunction producer-packer-processor-distributor firms are the dominant
force in poultry meat and egg production and marketing. Coordination through production
contracting now dominates the poultry industry. Today's integrators are subsidiaries of feed
companies, independent processors, cooperatives, meat packers, or retailers, or affiliates of
conglomerate corporations. These firms may own and/or direct the entire process from the
production of hatching eggs to the merchandising of ready-to-eat-sized poultry portions to
restaurants.
Production contracting in the poultry sector differs from that in the other livestock sectors
since it is dominated by near vertical integration between a farmer ("grower") and a processing
firm ("integrator"). Information from USDA on animal ownership at U.S. farms provides an
indication of the potential degree of processor control in this sector. Data from USDA indicate
production contracting accounted for virtually all (98 percent) of U.S. broiler production in 1997.
This indicates that nearly all broiler production may be under the ownership or control of
processing firms that are affiliated with broiler operations. Production contracting accounts for a
77
-------
relatively smaller share of turkey and egg production, accounting for 70 percent and 37 percent, |
respectively. . i
Businesses that contract out the growing or finishing phase of production to an AFO may i;
also be affected by the proposed co-permitting requirements. Affected businesses may include ;
other animal feeding operations as well as processing sector firms. Poultry processing facilities
are classified under NAICS 311615, poultry processing, and NAICS 311999, all other
miscellaneous (SIC 2015, poultry slaughtering facilities). The Department of Commerce reports
that there were a total of 558 poultry and egg slaughtering and processing facilities in 1997. Of
these, Department of Commerce's 1997 product class specialization for poultry identifies 212
establishments that process young chickens, 15 that process hens or fowl, and 39 that process
turkeys (rounded to the nearest ten). These data generally account for larger processing facilities
that have more than 20 employees. EPA believes that processing firms that may be affected by
the proposed co-permitting requirements will mostly be larger facilities that have the
administrative and production capacity to take advantage of various contract mechanisms.
Section 2 of the Economic Analysis provides additional information on the basis forEPA's
estimate of potential co-permittees. EPA is seeking comment on this assumption as part of
today's notice of the proposed rulemaking.
Using these Department of Commerce data, EPA estimates that about 270 companies
engaged in poultry slaughtering may be subject to the proposed co-permitting requirements. This
estimate does not include egg processors under NAICS 311999 because these operations are
considered to be further up the marketing chain and likely do not contract out to CAFOs.
2, Farm Production and Waste Management Practices
There are two types of basic poultry confinement facilities—those that are used to raise
turkeys and broilers for meat and those that are used to house layers. Broilers and young turkeys
are grown on floors on beds of litter shavings, sawdust, or peanut hulls; layers are confined to
cages. Broilers are reared in houses where an absorbent bedding material such as wood shavings
or peanut hulls are placed on the floor at a depth of several inches. Breeder houses contain
additional rows of slats for birds to roost. Broilers may also be provided supplementary heat
during the early phases of growth. Turkeys as well as some pullets and layers are produced in a
similar fashion. Pullets or chickens that are not yet of egg laying age are raised in houses on
litter, or in cages. Most commercial layer facilities employ cages to house the birds, although
smaller laying facilities and facilities dedicated to specialty eggs such as brown eggs or free range
eggs may use pastures or houses with bedded floors. Layer cages are suspended over a bottom
story in a high-rise house, or over a belt or scrape gutter. The gutter may be a shallow sloped pit,
in which case water is used to flush the wastes to a lagoon. Rush systems are more likely to be
found at smaller facilities in the South.
Poultry waste includes manure, poultry mortalities, litter, spilt water, waste feed, egg
wash water, and also flush water at operations with liquid manure systems. Manure from broiler,
78
-------
breeder, some pullet operations, and turkey operations is allowed to accumulate on the floor
where it is mixed with the litter. In the chicken houses, litter close to drinking water access
forms a cake that is removed between flocks. The rest of the litter pack generally has low
moisture content and is removed every 6 months to 2 years, or between flocks to prevent disease.
This whole house clean-out may also require storage, depending on the time of year it occurs.
The litter is stored in temporary field stacks, in covered piles, or in stacks within a roofed facility
to help keep it dry. Commonly, treatment of broiler and turkey litter includes composting which
stabilizes the litter into a relatively odorless material and which increases the market value of the
litter. Proper composting raises the temperature within the litter such that pathogens are reduced,
allowing reuse of the litter in the poultry house.
The majority of egg laying operations also use dry manure handling. Laying hens are
kept in cages and the manure drops below the cages in both dry and liquid manure handling
systems. Most of the dry manure laying operations are constructed as high rise houses where the
birds are kept on the second floor and the manure drops to the first floor sometimes referred to as
the pit. Ventilation flows through the house from the roof down over the birds and into the pit
over the manure before it is forced out through the sides of the house. The ventilation drys the
manure as it piles up into cones. Manure can be stored in high rise houses for up to a year before
requiring removal. In dry layer houses with belts, the manure that drops below the cage collects
on belts and is transported to a separate covered storage area. Layer houses with liquid systems
use either a shallow pit or alleyway located beneath the cages for flushing. Flushed wastes are
pumped to a lagoon.
Because of the large number of routine mortalities associated with large poultry
operations, the disposal of dead birds is occasionally a resource concern. Poultry facilities must
have adequate means for disposal of dead birds in a sanitary manner. To prevent the spread of
disease, dead birds are usually collected daily. Disposal alternatives include incineration,
rendering, composting, and in-ground burial or burial in disposal tanks. Much of the waste from
poultry facilities is land applied.
Additional information on the types of farm production and waste management practices
is provided in the Development Document.
VII. What Changes to the NPDES CAFO Regulations Are Being Proposed?
A. Summary of Proposed NPDES Regulations
EPA is co-proposing, for public comment, two alternative ways to structure the NPDES
regulation for defining which AFOs are CAFOs. Both structures represent significant
improvements to the existing regulation and offer increased environmental protection. The first
alternative proposal is a "two-tier structure," and the second is a "three-tier structure." Owners
79
-------
or operators of all facilities that are defined as CAFOs in today's proposal, under either
alternative, would be required to apply for an NPDES permit.
In the first co-proposed alternative, EPA is proposing to replace the current three-tier
structure in 40 CFR 122.23 with a two-tier structure. See proposed §122.23(a)(3) for the two-tier
structure, included at the end of this preamble. All AFOs with 500 or more animal units would
be defined as CAFOs, and those with fewer than 500 animal units would be CAFOs only if they
are designated as such by EPA or the State NPDES permit authority.
In the second co-proposed alternative, EPA is proposing to retain the current three-tier
structure. All AFOs with 1,000 or more animal units would be defined as CAFOs, and those
with less than 300 animals units would be CAFOs only if they are designated by EPA or the State
NPDES permit authority. Those with 300 to 1,000 animal units would be CAFOs if they meet
one or more of several specific conditions, and today's proposal would revise the existing
conditions. These facilities could also be designated as CAFOs if they are found to be significant
contributors of pollutants, to waters of the United States. Further, all AFOs between 300 and
1,000 animal units would be required to certify to the permit authority that they do not meet any
of the conditions. Those facilities unable to certify would be required to apply for a permit.
These regulatory alternatives are two of six different approaches that the Agency
considered. Two of the approaches are also being seriously considered, but are not being
proposed in today's action because they have not been fully analyzed. However, EPA is
soliciting public comment on these two alternatives. One of the alternatives is a two-tier
structure, similar to what is being proposed today, but would establish a threshold at the
equivalent of 750 AU. The other alternative under consideration is a three-tier structure, with
different certification and permitting requirements for facilities in the 300 AU to 1,000 AU tier.
These alternatives are described in more detail in Section VHB.5. After reviewing public
comment, EPA may decide to pursue either of these alternatives.
In addition, EPA considered two other alternative approaches that are not being proposed.
One would retain the existing three-tier structure for determining which AFOs are CAFOs, and
would retain the existing conditions for determining which of the middle tier facilities are
CAFOs while incorporating all other proposed changes to the CAFO regulations (e.g., the
definition of CAFO, the duty to apply, etc.). The sixth approach that was not proposed which is
similar to today's second alternative proposal, would retain the three-tiered structure and would
revise the conditions for determining which of the middle tier facilities are CAFOs in the same
manner as today's proposal. In contrast with today's proposal, it would not require all AFOs in
the middle tier to certify they are not CAFOs.
EPA is soliciting comment on all six scenarios for structuring how to determine which
facilities are CAFOs.
Table 7-1. Proposed Revision to the Structure of the CAFO Regulation
80
-------
Proposed Revision
Historical Record
Two-Tier Structure
Three-Tier Structure
Comparative Analysis
Alternative Scenarios Considered but not Proposed
Section
B.I
B.2
B.3
B.4
B.5
Besides changing the structure of the regulation, under both of today's proposals, EPA is
also proposing changes to clarify, simplify, and strengthen the NPDES regulation, including to:
clarify the definition of an AFO; discontinue the use of the term "animal unit" and eliminate the
mixed animal type multiplier when calculating numbers of animals; eliminate the 25-year, 24-
hour storm permit exemption; and impose a clearer and more broad duty to apply for a permit on
all operations defined or designated as a CAFO.
EPA is also proposing several changes that determine whether a facility is an AFO or
whether it is a CAFO and therefore must apply for an NPDES permit on that basis. Specifically,
EPA is proposing to formally define a CAFO to: include both the animal production area and the
land application area; broaden coverage in the poultry sector to include all chicken operations,
both wet and dry; add coverage for stand-alone immature swine and heifer operations; lower the
NPDES threshold that defines which facilities are CAFOs for other animal sectors, including
horses, sheep, lambs and ducks; and require facilities that are no longer active CAFOs to remain
permitted until their manure and storage facilities are properly closed and they have no potential
to discharge CAFO manure or wastewater. This section also discusses the concept of "direct
hydrologic connection" between ground water and surface water and its application to CAFOs.
Considerations for providing regulatory relief to small businesses are also discussed.
EPA is also proposing changes that clarify the scope of NPDES regulation of CAFO
manure and process wastewater. Today's proposal modifies the criteria for designation of AFOs
as CAFOs on a case-by-case basis and explicitly describes EPA's authority to designate facilities
as CAFOs in States with approved NPDES programs. EPA is also proposing that the permit
authority must require entities that have "substantial operational control" over a CAFO to be co-
permitted, and is requesting comment on an option for States to waive this requirement if they
provide another means of ensuring that excess manure transported from CAFOs to off-site
recipients is properly land applied. EPA also is clarifying Clean Water Act requirements
concerning point source discharges at non-CAFOs.
These changes are summarized in Table 7-2 and described in the noted sections.
Table 7-2. Proposed Revisions for Defining CAFOs other Point Sources
Proposed Revision
Clarify the vegetation language in the definition of an AFO
Section
C.1
81
-------
Discontinue use of the term animal unit
Eliminate the mixed animal type multiplier
Remove the 25-year, 24-hour storm event exemption from the definition of a CAFO
Clarify the duty to apply, that all CAFOs must apply for an NPDES permit
Definition of a CAFO includes both production area and land application area
Include dry poultry operations
Include stand-alone immature swine and heifer operations
Coverage of other sectors besides beef, dairy, swine and poultry
Require facilities that are no longer CAFOs to remain permitted until proper closure
Applicability of direct hydrological connection to surface water
Regulatory relief for small businesses
Designation criteria
Designation of CAFOs by EPA in States with NPDES authorized programs
Co-permitting of entities that exert substantial operational control over a CAFO
Point source discharges at AFOs that are not CAFOs
C.2.a i
C.2.b
C.2.C \
C.2.d
C.2.e
C.2.f
: M m — f
C.2.g
C.2.h
C.2.J
!
C.2.k
C.3
C.4 !
C-5
C.6
We also extensively discuss matters associated with the land application of CAFO-
generated manure and wastewater, including how the agricultural storm water exemption applies
to the application of CAFO-generated manure both on land under the control of the CAFO
operator and off-site. EPA is proposing to require CAFO owners or operators to land apply
manure in accordance with proper agricultural practices, as defined in today's regulation. EPA is
also co-proposing two different means of addressing the off-site transfer of CAFO-generated
manure. In one proposal, CAFO owners or operators would be allowed to transfer manure off-
site only to recipients who certify to land apply according to proper agricultural practices; to
maintain records of all off-site transfers; and to provide adequate information to off-site manure
recipients to facilitate proper application. Alternately, the certification wouJd not be required, and
CAFOs owners or operators would simply be required to maintain records and provide the
required information to recipients. See Table 7-3 for references.
Table 7-3. Land Application of CAFO-Generated Manure and Wastewater
Proposed Revision
Why is EPA Regulating Land Application of CAFO Waste?
How is EPA Interpreting the Agricultural Storm Water Exemption with Respect to Land
Application of CAFO-generated Manure?
How is EPA Proposing to Regulate Discharges from Land Application of CAFO-generated
Manure by CAFOs?
Section
D.I
D.2
D.3
82
-------
How is EPA Proposing to Regulate Land Application of Manure and Wastewater by non-
CAFOs?
D.3
EPA is proposing several revisions to requirements contained in CAFO permits. The
requirement that CAFO owners or operators develop and implement a "Permit Nutrient Plan," or
"PNP," is discussed extensively, including clarifying that a PNP is the EPA-enforceable subset of
a Comprehensive Nutrient Management Plan, or "CNMP."
EPA is also proposing to apply revised Effluent Limitation Guidelines and standards (
and hereafter referred to as effluent guidelines or ELG) to beef, dairy, swine, poultry and veal
operations that are CAFOs by definition in either of the two proposed structures, or that have 300
AU to 1,000 AU in the three-tier structure and are designated. NPDES permits issued to small
operations that are CAFOs by designation (those with fewer than 500 AU in the two tier
structure, and those with fewer than 300 AU in the three tier structure) would continue to be
based on Best Professional Judgment (BPJ) of the permit authority. Similarly, CAFOs in other
sectors (i.e., horse, sheep, lambs, and ducks) that have greater than 1,000 AU will continue to be
subject to the existing effluent guidelines and standards (as they are in the existing regulation),
while those with 1,000 AU or fewer would be issued permits based on BPJ, as today's proposed
effluent guidelines does not include revisions to sectors other than beef, dairy, swine, poultry and
veal.
Today's NPDES proposal includes monitoring, reporting and record keeping
. requirements that are consistent with those required by today's proposed effluent guidelines
(discussed in section VIE). In addition, EPA is proposing to require all individual permit
applicants, as well as new facilities applying for coverage under general NPDES permits, to
submit a copy of the cover sheed and Executive Summary of their draft Permit Nutrient Plan
(PNP) to the permit authority along with the permit application or Notice of Intent (NOI). EPA
is proposing to require all CAFOs to submit a notification to the permit authority, within three
months of obtaining permit coverage, that their Permit Nutrient Plans (PNPs) have been
developed, along with a fact sheet summarizing the PNP. Further, EPA is proposing to require
permittees to submit a notification to the permit authority whenever the PNP has been modified.
EPA is also proposing to require that the permit authority include certain conditions in its
general and individual permits that specify: 1) requirements for land application of manure and
wastewater, including methods for developing the allowable manure application rate;
2) restrictions on timing of land application if determined to be necessary, including restrictions
with regard to frozen, saturated or snow covered ground; 3) requirements for the facility to be
permitted until manure storage facilities are properly closed and therefore the facility has no
potential to discharge; 4) conditions for facilities in certain types of topographical regions to
prevent discharges to ground water with a direct hydrological connection to surface water; and 5)
under one co-proposed option, requirements that the CAFO owner or operator obtain a signed
certification from off-site recipients of more than twelve tons annually, that manure will be land
applied according to proper agricultural practices (co-proposed with omitting such a
83
-------
requirement). Comments are also requested on whether EPA should include erosion controls in j'
the NPDES permit, and whether EPA should establish an additional design standard that would \<
address chronic rainfall. Table 7-4 summarizes the proposed revisions that address minimum ij
permit conditions, as well as issues for which comment are being sought. >i
i!
Table 7-4. Proposed Revisions for Permit Requirements
Proposed Revision
Permit Nutrient Plan
Effluent Limitations
Monitoring and reporting
Record keeping
Special Conditions and Standard Conditions
Determining allowable manure application rate
Timing of land application of manure
Maintaining permit until proper closure
Discharge to ground water with a direct hydrological connection to surface water
Obtain certification from off-site recipients of manure of appropriate land
application
Erosion control
Solicitation of comment on defining chronic rainfall
Section
E.J
E.2
E.3
E.4
E.5
E.5.a
E.5.b
E.5.C
E.5.d
E.5.e
E,5.f
E.5.g
Finally, EPA is proposing to amend certain aspects of the general and individual permit
process to improve public access and public involvement in permitting CAFOs. While the
NPDES regulations already provide a process for public involvement in issuing individual
NPDES permits, today EPA is proposing to require the permit authority to issue quarterly public
notices of all Notices of Intent (NOIs) received for coverage under general NPDES permits for
CAFOs, as well as of notices from CAFOs that their Permit Nutrient Plans have been developed
or amended. Today's proposal discusses public availability of NOIs, Permit Nutrient Plans and
PNP notifications. EPA is proposing several new criteria for which CAFOs may be ineligible for
general permits, and would require the permit authority to conduct a public process for
determining, in light of those criteria, when individual permits would be required.
Owners or operators of all facilities that are defined as CAFOs in today's proposed
regulation would be required to apply for an NPDES permit. However, EPA also is proposing
that they may, instead, seek to obtain from the permit authority a determination of "no potential
to discharge" in lieu of submitting a permit application. (EPA notes that, because of the
stringency of demonstrating that a facility has no potential to discharge, EPA expects that few
facilities will receive such determinations.) Finally, EPA is proposing to amend the CAFO
individual permit application requirements and corresponding Form 2B. See Table 7-5.
84
-------
Table 7-5. Proposed Revisions to Permit Process
Proposed Revision
General Permit and NOI provisions
Individual permits
Requests not to have a permit issued by demonstrating "no potential to discharge"
Amendments to NPDES Permit Application For CAFOs Form 2B
Section
F.I
F.2
F.3
F.4
B. What Size AFOs Would be Considered CAFOs?
EPA is proposing two alternative structures for establishing which AFOs would be
regulated as CAFOs. Each proposal reflects the Agency's efforts to balance the goals of ease of
implementation and effectively addressing the sources of water quality impairments. The two-
tier structure is designed to give both regulators and animal feeding facility operators a clear,
straightforward means of determining whether or not an NPDES permit is required for a facility.
On the other hand, the three-tier structure, while less straightforward in determining which
facilities are required to have NPDES permits, may allow the permit authority to focus its
permitting resources on facilities which are more likely to be significant sources of water quality
impairments. The Agency believes both the two-tier and three-tier approaches are reasonable
and is requesting comment on how best to strike a balance between simplicity and flexibility
while achieving the goals of the Clean Water Act. EPA may decide to choose either or both
alternatives in the final rule, and requests comments on both. EPA is also requesting comment
on a variation of the two-tier structure and a variation of the three-tier structure and, after
considering public comment, may decide to pursue either or both of these variations for the final
rule.
EPA is not proposing to define animal types on the basis of age, size or species in order to
avoid complicating the implementation of this proposal. Throughout today's preamble, each of
the subcategories, under today's proposed effluent guidelines, is described as follows:
o "Cattle, excluding mature dairy or veal" (referred in today's preamble as the beef sector)
includes any age animal confined at a beef operation, including heifers when confined
apart from the dairy. This subcategory also includes stand-alone heifer operations, also
referred to as heifer operations.
o "Mature dairy cattle" (referred in today's preamble as the dairy sector) indicates that only
the mature cows, whether milking or dry, are counted to identify whether the dairy is a
CAFO.
o "Veal" is distinguished by the type of operation. Veal cattle are confined and manure is
managed differently than beef cattle. EPA is not proposing to define veal by size or age.
Note that the current regulation includes veal under the beef subcategory, but in today's
proposal a new veal subcategory would be established.
o "Swine weighing over 25 kilograms or 55 pounds" also indicates that only mature swine
are counted to determine whether the facility is a CAFO. Once defined as a CAFO, all
animals in confinement at the facility would be subject to the proposed requirements.
85
-------
o "Immature Swine weighing less than 25 kilograms or 25 pounds" indicates that immature
swine are counted only when confined at a stand-alone nursery. Today's preamble uses
the terms "swine sector" to indicate both mature and immature swine, but permit
provisions are separately applied to them.
o "Chicken" and "Turkeys" are listed as separate subcategories and are counted separately
in order to determine whether the facility is a CAFO. However, they are subject to the
same effluent limitations, and are collectively referred to as the "poultry sector."
o "Ducks," "Horses," and "Sheep or Lambs" are separate subcategories under the existing
NPDES and effluent limitation regulations. Part 412 effluent limitations are not being
revised in today's proposal; however, some of the proposed revisions to the NPDES
program will affect these subcategories.
1. Historical Record
In 1973, when EPA proposed regulations for CAFOs, the Agency determined the
thresholds above which AFOs would be subject to NPDES permitting requirements "on the basis
of information and statistics received, pollution potential, and administrative manageability." 38
FR 10961,10961 (May 3,1973)! In 1975, the Agency, after litigation, again proposed
regulations for CAFOs which established a threshold number of animals above which an AFO
would be determined to be a CAFO. 40 FR 54182 (Nov. 20,1975). The Agency noted that it
might be possible to establish a precise regulatory formula to determine which AFOs are CAFO
point sources based on factors such as the proximity of the operation to surface waters, the
numbers and types of animals confined, the slope of the land, and other factors relative to the
likelihood or frequency of discharge of pollutants into navigable waters. 40 FR at 54183.
The Agency decided, however, that even if such a formula could be constructed, it would
be so complex that both permitting authorities and feedlot operators would find it difficult to
apply. Then, as now, EPA concluded that the clearest and most efficient means of regulating
concentrated animal feeding operations was to establish a definitive threshold number of
confined animals above which a facility is defined as a CAFO, below which a permitting
authority could designate a facility as a CAFO, after consideration of the various relevant factors.
The threshold numbers initially established by the Agency were based generally on a statement
by Senator Muskie when the Clean Water Act was enacted. Senator Muskie, floor manager of
the legislation, stated that: "Guidance with respect to the identification of 'point sources' and
'nonpoint sources,' especially with respect to agriculture, will be provided in regulations and
guidelines of the Administrator." 2 Legislative History of the Water Pollution Control Act
Amendments of 1972 at 1299,93d Cong, 1st Sess. (January 1973). Senator Muskie then
identified the existing policy with respect to identification of agricultural point sources was
generally that "runoff from confined livestock and poultry operations are not considered a 'point
source' unless the following concentrations of animals are exceeded: 1000 beef cattle; 700 dairy
cows; 290,000 broiler chickens; 180,000 laying hens; 55,000 turkeys; 4,500 slaughter hogs;
35,000 feeder pigs; 12,000 sheep or lambs; 145,000 ducks." Id. In the final rule, the Agency and
; commenters agreed that while Senator Muskie's statement provided useful general guidance,
86
-------
particularly in support of the idea of defining CAFOs based on specified numbers of animals
present, it was not a definitive statement of the criteria for defining a CAFO. 41 FR 11458 (Mar.
18,1976). The Agency, thus, looked to data with respect to both the amount of manure
generated by facilities above the threshold and the number of facilities captured by the regulation.
EPA has again looked to those factors and, with 25 years of regulatory experience,
focused particularly on the amount of manure captured by the threshold, ease of implementation
for both regulators and the regulated community, as well as on matters of administrative
convenience and manageability of the permitting program. Based on these considerations, EPA
is proposing two alternative structures. EPA notes that the NPDES threshold is generally
synchronized with the effluent guidelines applicability threshold, and information on the cost per
pound of pollutants removed, and affordability of the various options is available in Section X.
2.
Two-Tier Structure
The first alternative that EPA is proposing is a two-tier structure that establishes which
operations are defined as CAFOs based on size alone. See proposed §122.23(a)(3). In this
alternative, EPA is proposing that the threshold for defining operations as CAFOs be equivalent
to 500 animal units (AU). All operations with 500 or more animal units would be defined as
CAFOs (§122.23(a)(3)(i)). Operations with fewer than 500 animal units would be CAFOs only
if designated by EPA or the State permit authority (§122.23(a)(3)(ii)). Table 7-6 describes the
number of animals that are equivalent to the proposed 500 AU threshold, as well as three other
two-tier thresholds that are discussed in this section.
The proposed two-tier structure would eliminate the 300 AU to 1,000 AU tier of the
existing regulation, under which facilities were either defined as a CAFO if they met certain
conditions or were subject to designation on a case-by-case basis by the permit authority
according to the criteria in the regulations. EPA is proposing to eliminate this middle category
primarily because it has resulted in general confusion about which facilities should be covered by
an NPDES permit, which, in turn, has led to few facilities being permitted under the existing
regulation. The two-tier structure offers simplicity and clarity for the regulated community and
enforcement authorities for knowing when a facility is a CAFO and when it is not, thereby
improving both compliance and enforcement.
Table 7-6. Number of Animals Covered by Alternative Two-Tier Approaches
Animal Type
Cattle and Heifers
Veal
Mature Dairy Cattle
Number of Animals Equivalent to:
300 AU
300
300
200
500 AU
500
500
350
750 AU
750
750
525
1,000 AU
1,000
1,000
700
87
-------
sXVlfle^Iipmg over 25 kilograms - or
55 pounds
Immature Swine weighing less than 25
kilograms, or 55 pounds
Chickens
Turkeys
Ducks
Horses
Sheep or Lambs
Number of Animals Equivalent to:
750
3,000
30,000
16,500
1,500
150
3,000
1,250
5,000
50,000
27400
2,500
250
5,000
1,875
7,500
75,000
41,250
3.750
375
7,500
2,500
10,000
100,000
55,000
5,000
500
10,000
Operations with fewer animals than the number listed for the selected threshold in Table
7-6 would only become CAFOs through case-by-case designation.
In order to determine the appropriate threshold for this two-tier approach, EPA analyzed
information on numbers of operations, including percent of manure generated, potential to reduce
nutrient loadings, and administrative burden. EPA considered current industry trends and
production practices, including the trend toward fewer numbers of AFOs, and toward larger
facilities that tend to be more specialized and industrialized in practice, as compared to more
traditional agricultural operations. EPA also considered other thresholds, including 300 AU, 750
AU, or retaining the existing 1,000 AU threshold. After considering each of these alternatives,
EPA is proposing 500 AU as the appropriate threshold for a two-tier structure, but is also
requesting comment on a threshold of 750 AU..
EPA is proposing 500 AU as the appropriate threshold for a two-tier structure because it
regulates larger operations and exempts more traditional - and oftentimes more sustainable - farm
production systems where farm operators grow both livestock and crops and land apply manure
nutrients. Consistent with the objectives under the USDA-EPA Unified National Strategy for
Animal Feeding Operations (March 9,1999), the proposed regulations cover more of the largest
operations since these pose the greatest potential risk to water quality and public health, given
the sheer volume of manure generated at these operations. Larger operations that handle larger
herds or flocks often do not have an adequate land base for manure disposal through land
application. As a result, large facilities need to store large volumes of manure and wastewater,
which have the potential, if not properly handled, to cause significant water quality impacts. By
comparison, smaller farms manage fewer animals and tend to concentrate less manure nutrients
at a single farming location. Smaller farms tend to be less specialized and are more diversified,
engaging in both animal and crop production. These farms often have sufficient cropland and
fertilizer needs to appropriately land apply manure nutrients generated at a farm's livestock or
poultry business. More information on the characteristics of larger-scale animal production
-------
.practices is provided in sections IV and VI of this document, as well as noted in the analysis of
impacts to small businesses (section X.I).
EPA is proposing the 500 AU threshold because operations of this size account for the
majority of all manure and manure nutrients produced annually. The proposed two-tier structure
would cover an estimated 25,540 animal production operations, or approximately seven percent
of all operations, which account for 64 percent of all AFO manure generated annually. The
USDA-EPA Unified National Strategy had a goal of regulating roughly five percent of all
operations.
EPA is specifically seeking comment on an alternative threshold of 750 AU, which would
encompass five percent of AFOs. There are an estimated 19,100 operations with 750 AU or
more (13,000 of which have more than 1,000 AU), and account for 58 percent of all manure and
mar-ure nutrients produced annually by AFOs. Regulating five percent of AFOs may be viewed
by some as being consistent with the USDA-EPA Unified National Strategy.
A 750 AU threshold has the benefits cited for the 500 AU threshold. The two-tier
structure is simple and clear, and it would focus regulation on even larger operations, thereby
relieving smaller operations from the burden of being automatically regulated, and moderating
the administrative burden to permit authorities. Permit authorities could use state programs to
focus on operations below 750 AU, and could use the designation process as needed.
In some sectors, a 750 AU threshold may not be sufficiently protective of the
environment. For example, in the Pacific Northwest, dairies tend to be smaller, but also tend to
be a significant concern. In the mid-Atlantic, where poultry operations have been shown to be a
source of environmental degradation, a 750 AU threshold would exempt many broiler operations
from regulatory requirements. EPA is concerned that a 750 AU threshold would disable permit
authorities from effectively addressing regional concerns.
EPA also considered adopting the 1,000 AU threshold, which would have regulated three
percent of all operations and 49 percent of all manure generated annually. A threshold of 300
AU was also considered, which would have addressed an additional 8 percent of all manure
generated annually, but would have brought into regulation 50 percent more operations than the
500 AU threshold (thus regulating a total of 10 percent of all AFOs which account for 72 percent
of AFO manure).
Raising the NPDES threshold to 500 AU, 750 AU or 1,000 AU raises a policy question
for facilities below the selected threshold but with more than 300 AU. Facilities with 300 to
1,000 AU are currently subject to NPDES regulation under some conditions, though in practice
few operations in this size range have actually been permitted to date. To rely entirely on
designation for these operations could be viewed by some as deregulatory, because the
designation process is a time consuming and resource intensive process that makes it difficult to
redress violations. It also results in the inability for permit authorities to take enforcement
89
-------
actions against initial discharges, (unless they are from an independent point source at the 'j
facility); instead such discharges could only result in requiring a permit. Unless the designation I;
process can be streamlined in some way to enable permit authorities to more efficiently address '
those who are significant contributors of pollutants, raising the threshold too high may also not
be sufficiently protective of the environment. Please see Section VHC.3 and VII.C.4 for a
discussion of the designation process.
More information on how data for these alternatives were estimated is provided in section'1
VI of this preamble.
EPA is soliciting comment on the two-tier structure, and what the appropriate threshold ]
should be. In addition, EPA is soliciting comment on other measures this rule, when final, might [•
include to ensure that facilities below the regulatory threshold meet environmental requirements, j;
such as by streamlining the designation process or some other means.
3.
Three-Tier Structure
The second alternative that EPA is proposing is a three-tier structure that retains the
existing tiers but amends the conditions under which AFOs with 300 AU to 1,000 AU, or
"middle tier" facilities, would be defined as CAFOs. Further, EPA would require all middle tier
AFOs to either apply for an NPDES permit or to certify to the permit authority that they do not
meet any of the conditions which would require them to obtain a permit.
EPA is proposing this alternative because it presents a "risk based" approach to
determining which operations pose the greatest concern and have the greatest potential to
discharge. The particular conditions being proposed would have the effect of ensuring that
manure at all facilities with 300 AU or more is properly managed, and thus may be more
environmentally protective than the two-tier structure. Further, even though this alternative
would impose some degree of burden on all AFOs with 300 AU or more, it would provide a way
for facilities to avoid being permitted, and could reduce the administrative burden associated
with permitting.
The three-tier alternative would affect all 26,665 facilities between 300 AU and 1,000 AU
in addition to the 12,660 facilities with greater than 1,000 AU, and thus would affect 10 percent
of all AFOs while addressing 72 percent of all AFO manure. However, because owners or
operators of middle tier facilities would be able to certify that their operations are not CAFOs,
EPA estimates that between 4,000 to 19,000 mid-size facilities would need to apply for and
obtain a permit.
Of the approximately 26,000 AFOs with 300 AU to 1,000 AU, EPA estimates that
owners or operations of approximately 7,000 facilities would have to, at a minimum, implement
a Permit Nutrient Plan (as discussed further below) and would be able to certify to the permit
authority that they are not a CAFO based on existing practices. Operators of some 19,000
90
-------
facilities of these middle tier facilities would be required to adopt certain practices in addition to
implementing a PNP, in order to be able to certify they are not a CAFO to avoid being
permitted.
See the EPA NPDES CAFO Rulemaking Support Document, included in the Record, for detailed
descriptions of the number of facilities affected by this and the other alternative scenarios
considered.
EPA is also proposing the three-tier structure because it provides flexibility for State
programs. A State with an effective non-NPDES program could succeed in helping many of
their middle tier operations avoid permits by ensuring they do not meet any of the conditions that
would define them as CAFOs. This important factor would enable States to tailor their programs
while minimizing the changes State programs might need to make to accommodate today's
proposed rulemaking.
The three-tier structure would affect the facilities shown in Table 7-7.
Table 7-7. Number of Animals in the Three-tier Approach (By Sector)
Animal Type
Cattle. Excluding Mature Dairy
and Veal
Veal
Mature Dairy Cattle
Swine, weighing over 25
kilograms or 55 pounds
* Immature Swine, weighing less
than 25 kilograms or 55 pounds
* Chickens
Turkeys
Ducks
Horses
Sheep or Lambs
>1000 AU equivalent
(number of animals)
1,000
1,000
700
2,500
10,000
100,000
55,000
5,000
500 horses
10,000
300-1000AU equivalent
(number of animals)
300-1.000
300-1,000
200-700
750-2,500
3,000 - 10,000
30,000 - 100,000
16,500 - 55,000
1,500-5,000
150-500
3,000-10,000
<300 AU equivalent
(number of animals)
<300
<300
<200
<750
<3,000
<30,000
<16,500
<1,500
<150
<3.000
* Immature swine, heifers and dry chicken operations are not included in the existing regulation but are included in
today's proposed rulemaking.
Revised Conditions
EPA examined the conditions under the existing regulation and determined that the
conditions needed to be modified in order to improve its efficacy. Under the existing regulation,
91
-------
an AFO with 300 AU to 1,000 AU is not defined as a CAFO unless it meets one of the two j;
criteria governing the method of discharge: 1) pollutants are discharged through a man-made |j
ditch, flushing system, or other similar man-made device; or 2) pollutants are discharged directly
into waters of the United States that originate outside of the facility and pass over, across, or !|
through the facility or otherwise come into direct contact with the confined animals. Under the >i
two-tier structure, these conditions would be eliminated because a facility would simply be jl
defined as a CAFO if it had more than 500 AU. Under the three-tier structure, EPA is proposing^
to eliminate the existing conditions and add several others designed to identify facilities which N
pose the greatest risk to water quality. ';
; i
The three-tier proposal would, for the middle tier, eliminate both criteria in the existing j
regulation because these conditions have proven to be difficult to interpret and implement for ;
AFOs in the 300 AU to 1,000 AU size category, and thus have not facilitated compliance or '(
enforcement, and the scenario does not meet the goal of today's proposal to simplify the NPDES ||
regulation for CAFOs. The two criteria governing method of discharge, e.g., "man-made device";
and "stream running through the CAFO," are subject to interpretation, and thus difficult for AFO ;
operators in this size range to determine whether or not the permit authority would consider them !'
to be a CAFO. EPA does not believe it is necessary to retain these criteria because all discharges ij
of pollutants from facilities of this size should be considered point source discharges. By
replacing these terms with a list of conditions, EPA intends to clarify that all discharges from ;
CAFOs must be covered by an NPDES permit, whether or not they are from a manmade
conveyance. EPA notes that under this proposal, the Agency would not eliminate the two '
conditions as criteria for designation of AFOs with less than 300 AU as CAFOs. See the
discussion of designation in Section Vn.C.3. '
The revised conditions for the middle tier would require the owner or operator to apply
for an NPDES permit if the operation meets any of the following conditions and is therefore a
CAFO: 1) there is direct contact of animals with waters of the U.S. at the facility; 2) there is
insufficient storage and containment at the production area to prevent discharges from reaching
waters of the U.S.; 3) there is evidence of a discharge from the production area in the last five
years; 4) the production area is located within 100 feet of waters of the U.S.; 5) the operator does
not have, or is not implementing, a Permit Nutrient Plan that meets EPA's minimum
requirements; or 6) more than twelve tons of manure is transported off-site to a single recipient
annually, unless the recipient has complied with the requirements for off-site shipment of
manure.
The EPA NPDES CAFO Rulemaking Support Document, dated September 26,2000,
(available in the rulemaking Record) describes the assumptions used to estimate the number of
facilities that would be affected by each condition, which EPA developed in consultation with
state regulatory agency personnel, representatives of livestock trade associations, and extension
specialists.
Each of these proposed conditions is described further below.
92
-------
Direct contact of animals with waters of the U.S.
The condition for "direct contact of animals with waters of the U.S." covers situations
such as dairy or beef cattle walking or standing in a stream or other such water that runs through
the production area. This condition ensures that facilities which allow such direct contact have
NPDES permits to minimize the water quality problems that such contact can cause.
Insufficient Storage
The condition for "insufficient storage and containment at the production area to prevent
discharge to waters of the U.S." is intended to address discharges through any means, including
sheet runoff from the production area, whereby rain or other waters might come into contact with
manure and other raw materials or wastes and then run off to waters of the U.S. or leach to
ground water that has a direct hydrologic connection to waters of the U.S. This is to ensure that
all mid-sized facilities prevent discharges from inadequate storage and containment of manure,
process wastewater, storm water, and other water coming in contact with manure.
Sufficient storage would be defined as facilities that have been designed and constructed
to standards equivalent to today's proposed effluent guidelines. Thus, beef and dairy operations
would be designed and constructed to prevent discharge in a 25-year, 24-hour storm event, while
swine and poultry would be required to meet a zero discharge standard. See Section VffiC.6.
Past or Current Discharge
Operations that meet the condition for "evidence of discharge from the production areas
within the past five years" would be considered CAFOs under this proposal. A discharge would
include all discharges from the production area including, for example, a discharge from a
facility designed to contain a 25-year, 24-hour storm. Evidence of discharge would include:
citation by the permit authority; discharge verified by the permit authority whether cited or not;
or other verifiable evidence that the permit authority determines to be adequate to indicate a
discharge has occurred.
Under this approach, there would be no allowance in the certification process for facilities
in the beef and dairy sectors designed to contain runoff from a 25-year, 24-hour storm that had a
discharge anyway during an extreme storm event. Thus, in this respect, the requirements for
certification would be more stringent than those that would apply to a permitted facility. EPA is
thus proposing that a facility that chooses not to be covered by an NPDES permit would not get
the benefits of NPDES coverage such as the 25-year, 24-hour storm standard for beef and dairy
operations, and upset and bypass defense. Alternatively, EPA is soliciting comment on the
definition of a "past or current discharge," including whether to define it as a discharge from a
facility that has not been designed and constructed in accordance with today's proposed effluent
93
-------
guidelines. This would make the certification requirements consistent with those for permitted
facilities.
Proximity to Waters of the U.S.
!|
Operations with production areas that are located within 100 feet of waters of the U.S. are,
of particular concern to EPA, since their proximity increases the chance of discharge to waters |j
and is a compelling factor that would indicate the potential to discharge. Research has shown '•'
that the amount of pollutants in runoff over land can be mitigated by buffers and setbacks. (See !'
Environmental Impact Assessment; Development of Pollutant Loading Reductions from the |j
Implementation of Nutrient Management and Best Management Practices; both available in the |!
rulemaking Record.) Any operation located at a distance less than the minimum setback poses a j
particular risk that contaminants will discharge to receiving waters. EPA estimates that [
approximately 4,000 operations between 300 AU and 1,000 AU in size have production areas
that are within 100 feet of waters of the U.S.
Permit Nutrient Plan for Land Application of Manure and Wastewater
For facilities that land apply manure, another condition indicative of risk to water
impairment is whether or not the facility has developed and is implementing a Permit Nutrient
Plan for manure and/or wastewater that is applied to land that is owned or controlled by the AFO
operator. Contamination of water from excessive application of manure and wastewater to fields
and cropland presents a substantial risk to the environment and public health because nutrients
from agriculture are one of the leading sources of water contamination in the United States.
While CAFOs are not the only source of contamination, they are a significant source, and CAFO
operators should apply manure properly to minimize environmental impacts. Thus, EPA would
require any facility with 300 AU to 1,000 AU that does not have a PNP that conforms to today's
proposed effluent guidelines for land application to apply for an NPDES permit. (As described
in Section VH.E.1, the PNP is the effluent guideline subset of elements in a CNMP. Section
Vffl.C.6 of today's proposal describes the effluent guideline requirements in a PNP.)
\
Certification for Off-site Transfer of CAFO-generated Manure
The final condition for avoiding a permit concerns the transfer of CAFO-generated
manure and wastewater to off-site recipients. EPA is co-proposing two ways to address manure
transferred off-site, which are discussed in detail in Section Vn.D.2, as well as in Vn.e.5.e. In
this condition, a facility would be considered a CAFO if more than 12 tons of manure is
transported off-site to a single recipient annually, unless the AFO owner or operator is complying
with the requirements for off-site transfer of manure, or is complying with the requirements of a
State program that are equivalent to the requirements of 40 CFR part 412.
Under one co-proposed option, the AFO owner or operator would be required to obtain
certifications from recipients that the manure will be properly managed; to maintain records of
94
-------
the recipients and the quantities transferred; and to provide information to the recipient on proper
manure management and test results on nutrient content of the manure. Under the alternative
option, CAFOs would not be required to obtain certifications, but would still maintain the
records of transfers and provide the information to the recipients.
Under the first option, the CAFO owner or operator would obtain a certification from
recipients (other than waste haulers that do not land apply the waste) that the manure: 1) will be
land applied in accordance with proper agricultural practices as defined in today's proposal; 2)
will be applied in accordance with an NPDES permit; or 3) will be used for alternative uses, such
as for pelletizing or distribution to other markets. If transferring manure and wastewater to a
waste hauler, the CAFO owner or operator would be required to obtain the name and location of
the recipients of the waste, if known, and provide the hauler with an analysis of the content of the
manure and a brochure describing responsibilities for appropriate manure management, which
would be provided, in turn, to the recipient. These provisions are discussed in more detail in
Sections VH.D.4 and VH.E.4.
Excess Manure Alternative Considered
As an alternative to the two conditions addressing land application of CAFO-generated
manure, EPA also considered a condition that would simply require the CAFO operator to
determine whether it generates more manure than the land under his or her control could
accommodate at allowable manure application rates, and if so, it would be a CAFO, required to
land apply according to a PNP. Further, this condition would create a voluntary option for off-
site transfer of CAFO-generated manure whereby, if the manure was transferred to someone
certifying they had a certified CNMP and were implementing it, the facility would not be a
CAFO on the basis of having excess manure.
EPA considered this criterion to identify which CAFOs were likely to pose a risk of
discharge and impacts to human health and the environment based on generation of excess
manure (e.g., more manure than can be properly applied to land under his or her operational
control). Requiring such CAFOs to apply for an NPDES permit would allow EPA to require
these operations to maintain records documenting the fate of the manure (e.g., whether it was
land applied on-site or transferred to a third party). EPA is interested in monitoring the fate of
the large quantities of manure generated by CAFOs, and in educating recipients regarding proper
agricultural practices. CAFO operators able to certify there is sufficient cropland under their
operational control to accommodate the proper application of manure generated at their facility
would not be defined as CAFOs and thus would not need to apply for an NPDES permit on that
basis.
To identify facilities that generate excess manure, EPA considered a screening tool
originally developed by USDA, known as Manure Master. The tool allows AFO operators to
compare the nutrient content in the animal manure produced by an AFO with the quantity of
nutrients used and removed from the field on which that manure is applied. This tool would help
95
-------
assess the relative potential for the nutrients contained in the animal manure to meet or exceed
the crop uptake and utilization requirements for those crops that receive applications of manure.
The screening tool calculates a balance between the nitrogen, phosphorus, and potassium content
in the manure and the quantity of these nutrients used by particular crops. This balance can be
calculated based upon recommended fertilizer application rates, when known, or upon estimated i
plant nutrient content, when recommended fertilizer application rates are not known. For
nitrogen, the balance is calculated taking into account expected losses from leaching,
denitrification, and volatilization.
The manure screening tool would be available as either an Internet-based program or as a
computer software program that allows for direct input of data and generation of reports. AFO
operators would enter the average number of confined animals by animal type, the number of
acres for each crop, and the expected yield for each crop for which the operator expects to apply
manure. The operator would also specify whether the manure is incorporated into the soil or
surface applied. The software also allows, but does not require, entry of soil test or other crop
nutrient recommendations. The screening too] produces a report that includes the balance (i.e.,
pounds needed or pounds excess, per acre) for nitrogen, phosphorus, and potassium for an AFO
operator's fields. The balance will advise the operator whether the quantity of nutrients in his or
her animal manure exceeds the quantity removed in harvested plants or the quantity of nutrients
recommended.
There are many assumptions in this screening tool that make it too general to use for
detailed nutrient management planning, although it would be useful as a rough means of
determining whether a facility is generating manure in excess of crop needs. The factors used to
calculate manure nutrient content are developed from estimates that account for nutrient losses
due to collection, storage, treatment, and handling. When manure is not incorporated, an
additional nitrogen loss is included for volatilization. When the nutrients exceed nutrient
utilization, there is increased potential for nutrients to leach or runoff from fields and become
pollutants of ground or surface water. This software is intended to be used as a decision support
screening tool to allow AFO operators to make a quick evaluation as to whether the quantity of
nutrients applied to the land on which manure is spread exceeds the quantity of nutrients used by
crops. EPA believes it could be a valuable tool to determine, at a screening level, whether
available nutrients exceed crop needs and, thus, whether a facility has a greater likelihood for
generating the runoff of nutrients that could impact water quality. EPA is not proposing this
option as there are concerns that simply having enough land may not provide assurance that the
manure would be applied in ways that avoided impairing water quality. However, EPA is
requesting comment below on an alternative three-tier approach that would include such a
screening tool as one of the criteria for certifying that an AFO in the 300 to 1,000 AU size
category is not a CAFO.
Certifying That a Middle Tier AFO is not a CAFO
96
-------
Under the three-tier structure, EPA is proposing to allow AFOs with between 300 AU
and 1,000 AU to certify to the permit authority that they do not meet any of the risk-based
conditions and thus are not CAFOs. The certification would be a check-off form that would also
request some basic information about the facility, including name and address of the owner and
operators; facility name and address and contact person; physical location and longitude and
latitude information for the production area; type and number of animals at the AFO; and
signature of owner, operator or authorized representative. The draft sample certification form is
included here for public comment.
Form for Certifying Out of the Concentrated Animal Feeding Operation Provisions of the
National Pollutant Discharge Elimination System
This checklist is to assist you in determining whether your animal feeding operation (AFO) is, or
is not, a concentrated animal feeding operation (CAFO) subject to certain regulatory provisions.
For clarification, please see the attached fact sheet.
Section 1. First determine whether or not your facility is an AFO.
A facility that houses animals is an animal feeding operation if:
• Animals (other than aquatic animals) have been, are, or will be stabled or
confined and fed or maintained for a total of 45 days or more in any 12-month
period.
• Animals are not considered to be stabled or confined when they are in areas such
as pastures or rangeland that sustain crops or forage growth during the entire time
that animals are present.
Yes, my facility is an AFO. PROCEED TO SECTION 2.
No, my facility is not an AFO. STOP. YOU DO NOT NEED TO SUBMIT THIS
FORM
Section 2.
Determine the size range of your AFO.
If your facility is an AFO, and the number of animals is in the size range for any animal type
listed below, then you may potentially be a concentrated animal feeding operation.
200-700 mature dairy cattle (whether milked or dry)
300-1000 head of cattle other than mature dairy cattle
750-2,500 swine each weighing over 25 kilograms (55 pounds)
97
U.S. EPA Headquarters Library
Mail code 3201
1200 Pennsylvania Avenue NW
Washington DC 20460
-------
3,000-10,000 swine each weighing under 25 kilograms (55 pounds)
30,000-100,000 chickens
16,500-55,000 turkeys
150-500 horses
3,000-10,000 sheep or lambs
1,500-5,000 ducks
Mv AFO is within this size ranee. PROCEED TO SECTION 3.
Mv AFO has fewer than the lower threshold number for any animal type so I am
not a CAFO under this description. STOP.
Mv AFO has more than the upper threshold number of animals for any animal
type. STOP. PLEASE CONTACT YOUR PERMIT AUTHORITY FOR
INFORMATION ON HOW TO APPLY FOR AN NPDES PERMIT.
Section3.
Minimum Requirements
Check all boxes that apply to your operation. If all of the following boxes are checked,
PROCEED TO SECTION 4.
My production area is not located within 100 feet of waters of the U.S.
There is no direct contact of animals with waters of the U.S. in the production
area,
I am currently maintaining properly engineered manure and wastewater storage
and containment structures designed to prevent discharge in either a 25-year, 24-
hour storm (for beef and dairy facilities) or all circumstances (for all other
facilities), in accordance with the effluent guidelines (40 CFR Part 412).
There are no discharges from the production area and there have been no
discharges in the past 5 years.
I have not been notified by my State permit authority or EPA that my facility
needs an NPDES permit
If any box in this section is not checked, you may not use this certification and you must
apply for an NPDES permit. STOP. PLEASE CONTACT YOUR PERMIT
AUTHORITY FOR MORE INFORMATION.
Section 4.
Land Application
A. If all of the boxes in Section 3 are checked, you may be able to certify that you are not
a CAFO on the basis of ensuring proper agricultural practices for land application of
CAFO manure:
98
-------
I either do not land apply manure or, if land applying manure, I have, and am
implementing, a certified Permit Nutrient Plan (PNP). I maintain a copy of my
PNP at my facility, including records of implementation and monitoring; and
B. Check One:
- My State has a program for excess manure in which I participate.
OR
[Alternative 1: I do not transfer more than 12 tons of manure to any off-site
recipients unless they have signed a certification form assuring me that they are
either 1) applying manure according to proper agricultural practices; 2) obtaining
an NPDES permit for discharges; or 3) transferring manure to other non-land
application uses; and] [For Alternative 2, this box is not needed]
I maintain records of recipients, receiving greater than 12 tons of manure
annually, and the quantity and dates transferred, and I provide recipients an
analysis of the content of the manure as well as information describing the
recipients responsibilities for appropriate manure management. If I transfer
manure or wastewater to a manure hauler, I also obtain the name and location of
the recipients of the manure, if known;
If a box is checked in both subsection A and subsection B above, you may certify that you
are not a CAFO. PROCEED TO SECTION 5.
If a box is not checked in both subsection A and subsection B above, you may not use this
certification form. STOP. YOU MUST APPLY FOR AN NPDES PERMIT.
Section 5.
Certification
/ certify that I own or operate the animal feeding operation described herein, and have
legal authority to make management decisions about said operation. I certify that the
information provided is true and correct to the best of my knowledge.
I understand that in the event of a discharge to waters of the U.S. from my AFO, I must
report the discharge to the Permit Authority and apply for a permit. 1 will report the
discharge by phone within 24 hours, submit a written report within 7 calendar days, and
make arrangements to correct the conditions that caused the discharge.
In the event any of these conditions can no longer be met, I understand that my facility is
a CAFO and I must immediately apply for a permit. I also understand that I am liable
for any unpermitted discharges. This certification must be renewed every 5 years.
99
-------
1 certify under penalty of law that this document either was prepared by me or was >\
prepared under my direction or supervision. Based on my inquiry of the person or
persons who gatheried the information, the information provided is, to the best of my [|
knowledge and belief, true, accurate and complete. I am aware that there are penalties I1
for submitting false information, including the possibility of fine and imprisonment for !J
knowing violations.
Facility Name.
Signature
.Name of Certifier.
Date
check one: o owner
D operator
Name & Address of other entity that exercises substantial operational control of this
CAFO:
Address of animal feeding operation:
County: . State:
Latitude/Longi tude:
Phone: Email:
Name of Closest Waters of the U.S.: Distance to Waters:
Description of closest waters: (e.g. intermittent stream, perennial stream; ground water
aquifer):
Where an operation in the 300-1000 AU size range has certified that it meets all
of the required conditions to be excluded from the CAFO definition, if at any future point
the operation fails to meet one or more of these conditions, it would immediately become
defined as a CAFO. Any discharges from the operation at that point would be illegal
until the operation obtains a permit. For example, if an operation has certified that it
meets all of the conditions for being excluded from the CAFO definition, but then has an
actual discharge to the waters (which would be inconsistent with the certification that
there is no "current discharge"), that discharge would be considered to be an unpermitted
discharge from a CAFO. Similarly, if an operation at any point no longer has sufficient
storage and containment to prevent discharges, it would immediately become a CAFO
and be required to apply for a permit (regardless of whether it had any actual discharges).
Constructing the regulations in this way would do two things. First, it would
make clear that there is no shield from liability for any operation that falsely certified that
it met the conditions to be excluded from regulation. Second, it would make clear that
even in cases where an operation has certified to all the required conditions in good faith,
there is no protection from the regulatory and permitting requirements if at any point the
operation no longer meets those conditions. Operations would be on notice that if they
100
-------
had any doubts about their continued ability to meet the conditions for exclusion, they
should decline to "certify out" and should apply for a permit.
Alternative Three-tier Structure; Simplified Certification
EPA is requesting comment on a variation of the three-tier structure being co-
proposed today. Under this alternative, operations with > 1,000 AU would be subject to
the same requirements as under both of today's co-proposed options, and operations
between 300 and 1,000 animal units would be defined as CAFOs, required to obtain an
NPDES permit, unless they can certify that they do not meet the conditions for definition
as a CAFO. However, the conditions for making this certification would be different than
those under the proposed three-tier approach, and the substantive permit requirements for
operations between 300 and 1,000 AU that do not certify would also be different.
Under this approach, operations between 300 and 1,000 AU, that are not likely to
be significant contributors of pollutants, could avoid definition as a CAFO by certifying.
to a more limited range of factors. The check list would indicate, for example, adequate
facility design to contain manure and runoff in up to a 25-year, 24-hour storm, use of
appropriate BMPs, and application of manure at agronomic rates. Under this variation,,
the check list would be designed to minimize both the required information and the
substantive operational requirements for these middle tier facilities on the grounds that,
because they are smaller size operations, they are less likely to be the type of
concentrated, industrial operations that Congress intended to include as CAFOs. So, for
example, the check list could allow several alternatives for appropriate manure storage,
including cost-effective BMPs such as stacking manure in certain locations or in certain
ways to avoid discharge, in lieu of expanded structural storage capacity. Similarly, the
indication that manure is applied at agronomic rates could be based on a simple ratio of
animals to crop land, or on the use of a more sophisticated screening tool, such as the
USDA developed tool described above, but would not necessarily require preparation of a
full CNMP by a certified planner. The check list might also include an assurance by the
operator that recipients of off-site manure are provided nutrient test results and
information on appropriate manure management.
AFOs in this size category that are not able to certify, according to the check list
criteria, that they are not likely to be significant contributors of pollutants to waters of the
US would be defined as CAFOs and thus required to obtain an NPDES permit. However,
the conditions in the permit would not necessarily be the same as those in permits for
operations with > 1,000 AU. In particular, the effluent guidelines described in today's
proposal would not be applicable to these facilities. Rather, CAFOs in this size category
would be required to operate in accordance with BAT, as determined by the best
professional judgement (BPJ) of the permit writer. This is the same as the existing
requirement for CAFOs in this size category. Or, EPA might promulgate an alternate set
of national effluent guidelines for CAFOs in this subcategory. Such effluent guidelines
101
-------
might include zero discharge from the production area in up to a 25-year, 24-hour storm,};
implementation of a PNP, appropriate BMPs, and appropriate management of manure !'
shipped off-site.
Under this approach, all 26,665 operations between 300 and 1,000 AU would be j
affected by the rule, just as under the three-tier approach being proposed today. However
EPA expects that a larger number of facilities would be able to avoid definition as a [|
CAFO and the requirement to obtain a permit than under today's proposed approach. |
EPA has not estimated the number of operations that would be defined as CAFOs under [j
this alternative three-tier approach, but expects that it would be more than 16,420 but !;
fewer than 31,930 (of which some 13,000 would have over 1,000 AU). For those '',
facilities that did receive a permit, compliance would generally be less expensive. This |
approach was presented to small entity representatives (SERs) during the SBREFA !
outreach conducted for this rule, and discussed in detail by the Small Business Advocacy
Review Panel that conducted the outreach. While some concerns were expressed, the
approach was generally received favorably by both the SERs and the Panel. See the Panel!
Report (2000) for a complete discussion of the Panel's consideration of this option.
EPA requests comment on this alternative three tier approach. In particular, EPA
requests comment on which items should be included in the certification check list, and
whether substantive permit requirements for CAFOs in this size category should be left
completely up to the BPJ of the permit authority, or based on an alternate set of effluent
guidelines, as discussed above. After evaluating public comments, EPA may decide to
further explore this option. At that time, EPA would develop and make available for
public comment as appropriate a more detailed description of the specific requirements of (I
such an approach, as well as a full analysis of its costs, benefits, and economic impacts, j;
In particular, EPA would add an analysis to the public record of why it would be . li
appropriate to promulgate different effluent guideline requirements, or no effluent M
guideline requirements, for CAFOs that have between 300 and 1,000 AU as compared to [•
the effluent guidelines for operations with greater than 1,000 AU. This would include an
evaluation of whether the available technologies and economic impacts are different for \
the smaller versus the larger CAFOs.
4. Comparative Analysis
EPA is proposing both the two- and three-tier structures for public comment as they both
offer desirable qualities. On the one hand, the two-tier structure is simple and clear, focuses on
the larger operations, and provides regulatory relief to smaller businesses. However, it requires
permits of all facilities meeting the size threshold. On the other hand, the three-tier structure
offers flexibility to States for addressing environmental impacts of AFOs through non-NPDES
programs or non-regulatory programs, while focusing the regulation on facilities demonstrating
102
-------
certain risk characteristics. It imposes, however, some degree of burden to all facilities more
than 300 AU.
The costs of each of the six alternatives considered by EPA are discussed in Section X of
today's proposal, and benefits are discussed in Section XI. Key findings from EPA's analysis are
summarized in Table 7-8 for quick reference. See Sections X and XI for full discussions and
explanations.
EPA solicits comment on both of today's alternative proposed structures, as well as on
the two alternatives discussed above.
EPA is also soliciting comment on whether or not to adopt both the two-tier and the
three-tier structures, and to provide a mechanism to allow States to select which of the two
alternative proposed structures to adopt in their State NPDES program. Under this option, a
State could adopt the structure that best fits with the administrative structure of their program,
and that best serves the character of the industries located in their State and the associated
environmental problems. This option is viable only if the Agency is able to determine that the
two structures provide substantially similar environmental benefits by regulating equivalent
numbers of facilities and amounts of manure. Otherwise, States would be in a position to choose
a less stringent regulation, contrary to the requirements of the Clean Water Act.
EPA's preliminary assessment is that there appear to be significant differences in the
scope of the structures, such that the two-tier structure could be considered less stringent than the
three-tier structure, depending upon which structures, criteria and thresholds are selected in the
final proposal. As table 7-8 indicates, for example, the co-proposed two-tier structure with a 500
AU threshold would regulated 25,540 operations, whereas the co-proposed three-tier structure
would regulate up to 39,320 operations. A two-tier structure with 750 AU would regulate 19,100
operations, whereas the alternative, less stringent, three-tier structure would regulate as few as
16,000 and as many as 32,000. The range of manure covered under these various alternatives
ranges from as little as 49% to as much as 72% of all AFO manure. Further, how each animal
sector is affected varies with each alternative, with some alternatives being significantly less
protective in certain sectors than other alternatives. Section VI of today's preamble provides
more information on the affects on each animal sector of various alternatives.
EPA is not able to conclude that the stringency of the two options is equivalent, due to the
lack of data and EPA's uncertainty over exactly how many facilities may be subject to regulation
under each alternative. Therefore, EPA is not proposing this option.. However, EPA seeks
comment on the option to allow States to select which of two structures to implement, and
requests information on establishing whether two options provide equivalent environmental
protection.
Table 7-8. Comparison of Regulatory Alternatives for Select Criteria"
103
-------
Criteria
Number Operations that
will be Required to
Obtain a Permit
Percentage of Affected
Operations Required to
Obtain a Permit
Estimated Compliance
Costs to CAFOs
($million/year, pre-tax)
Percentage Manure Covered
by Proposed Regulations
Baseline
>1000
AU
12,660
3%
$605
.49% '•
2-Tier
Alternatives
>7SO
AU
19,100
5%
$721
58%
>500
AU
25,540
7%
$831
64%
>300
AU
39,320
11%
$980
72%
3-Tier
Alternatives
Proposed
31,930*
9%
$930
72%
Alternative
>16,420
10%
>$680
ND
1
J
'i
Ii
1
>
i
i
'\
\l
ii
'i
ii
il
!
Three-tier Proposed: Number of affected facilities up to 39,320. Number of permitted facilities between
16,000 and 32,000, rounded.
Three-tier Alternative: Number of affected facilities and industry costs are expected to be greater than
that estimated for NPDES Scenario 1 ("Status Quo"). ND = Not Determined.
5. Additional Scenarios Considered But Not Proposed
EPA also considered two other scenarios, which would retain the existing three-tier
approach.
a. Scenario 1: Retain Existing Structure
One of the alternative regulatory scenarios would incorporate all of today's proposed
revisions except those related to the tiered structure for defining which AFOs are CAFOs. In
other words, the existing three-tier structure (greater than 1,000 AU; 300 AU to 1,000 AU; fewer
than 300 AU) would remain in place, and the conditions for defining the middle tier operations
would not change. Thus, as under the existing regulation, mid-sized AFOs (300 AU to 1,000
AU) would be defined as CAFOs only if, in addition to the number of animals confined, they
also meet one of the two specific criteria governing the method of discharge: 1) pollutants are
discharged through a man-made ditch, flushing system, or other similar man-made device; or 2)
pollutants are discharged directly into waters of the United States that originate outside of the
facility and pass over, across, or through the facility or otherwise come into direct contact with
the confined animals.
EPA is not proposing this scenario because these conditions have proven to be difficult to
interpret and implement for AFOs in the 300 to 1,000 AU size category, and thus have not
104
-------
facilitated compliance or enforcement, and the scenario does not meet the goal of today's
proposal to simplify the NPDES regulation for CAFOs. The two criteria governing method of
discharge, e.g., "man-made device" and "stream running through the CAFO," are subject to
interpretation, and thus difficult for AFO operators in this size range to determine whether or not
the permit authority would consider them to be a CAFO. EPA does not believe it is necessary to
retain these criteria because all discharges of pollutants from facilities of this size should be
considered point source discharges. While the other proposed changes go a long way to improve
the effectiveness of the NPDES program for CAFOs, EPA believes the definition criteria for
facilities in this size range also need to be amended to make the regulation effective, simple, and
enforceable.
b. Scenario 2: Revised Conditions Without Certification
The second scenario EPA considered would also retain the existing three-tier structure,
and would modify the conditions for defining the middle tier AFOs as CAFOs in the same way
that today's proposed three-tier structure does. That is, any AFO that meets the size condition
(300 AU to 1,000 AU) would be defined as a CAFO if it met one or more of the following risk-
based conditions: 1) direct contact of animals with waters of the U.S.; 2) insufficient storage and
containment at the production area to prevent discharge from reaching waters of the U.S.; 3)
evidence of discharge in the last five years; 4) the production area is located within 100 feet of
waters of the U.S.; 5) the operator does not have, or is not implementing, a Permit Nutrient Plan;
and 6) any manure transported off-site is transferred to recipients of more than twelve tons
annually without following proper off-site manure management, described above in the
discussion of the three-tier structure (co-proposed with omitting this requirement).
In this scenario, owners or operators of AFOs in the middle tier would not be required to
certify to the permit authority that the facility is not a CAFO. However, all facilities that do meet
one or more of the conditions would have a duty to apply for an NPDES permit. This scenario is
not being proposed because of concerns that there would be no way for the permit authority to
know which operations were taking the exemption and which should, in fact, be applying for a
permit. The certification scenario provides a measure of assurance to the public, the permit
authority, and the facilities' owners or operators, that CAFOs and AFOs are implementing
necessary practices to protect water quality.
C. Changes to the NPDES Regulations
In addition to changing the threshold for determining which facilities are CAFOs, EPA is
proposing a number of other changes that address how the permitting authority determines
whether a facility is an AFO or a CAFO that, therefore, must apply for an NPDES permit. These
proposed revisions are discussed in this section and in section D.
1. Change the AFO Definition to Clearly Distinguish Pasture Land
105
-------
EPA is proposing to clarify the regulatory language that defines the term "animal feeding
operations," or AFO, in order to remove ambiguity. See proposed §122.23(a)(2). The proposed
rule language would clarify that animals are not considered to be "stabled or confined" when they;
are in areas such as pastures or rangeland that sustain crops or forage during the entire time lj
animals are present. Other proposed changes to the definition of AFO are discussed below in '
section 3.e.
To be considered a CAFO, a facility must first meet the AFO definition. AFOs are ,
enterprises where animals are kept and raised in confined situations. AFOs concentrate animals,ij
feed, manure and urine, dead animals, and production operations on a small land area. Feed is '
brought to the animals rather than the animals grazing or otherwise seeking feed in pastures, •
fields, or on rangeland. The current regulation [40 CFR 122.23(b)(l)] defines an AFO as a "lot
or facility where animals have been, are, or will be stabled or confined and fed or maintained for
a totrJ of 45 days or more in any 12 month period; and where crops, vegetation!,] forage growths
or post-harvest residues are not sustained over any portion of the lot or facility in the normal '
growing season" [emphasis added].
The definition states that animals must be kept on the lot or facility for a minimum of 45 i
days, in a 12-month period. If an animal is at a facility for any portion of a day, it is considered i
to be at the facility for a full day. However, this does not mean that the same animals must •
remain on the lot for 45 consecutive days or more; only that some animals are fed or maintained ;
on the lot or at the facility 45 days out of any 12-month period. The 45 days do not have to be ;
consecutive, and the 12-month period does not have to correspond to the calendar year. For
example, June 1 to the following May 31 would constitute a 12-month period. i
i
The definition has proven to be difficult to implement and has led to some confusion.
Some CAFO operators have asserted that they are not AFOs under this definition where
incidental growth occurs on small portions of the confinement area. In the case of certain
wintering operations, animals confined during winter months quickly denude the feedlot of
growth that grew during the summer months. The definition was not intended to exclude, from
the definition of an AFO, those confinement areas that have growth over only a small portion of
the facility or that have growth only a portion of the time that the animals are present. The
definition is intended to exclude pastures and rangeland that are largely covered with vegetation
that can absorb nutrients in the manure. It is intended to include as AFOs areas where animals
are confined in such a density that significant vegetation cannot be sustained over most of the
confinement area.
As indicated in the original CAFO rulemaking in the 1970s, the reference to vegetation in
the definition is intended to distinguish feedlots (whether outdoor confinement areas or indoor
covered areas with constructed floors) from pasture or grazing land. If a facility maintains
animals in an area without vegetation, including dirt lots or constructed floors, the facility meets
this part of the definition. Dirt lots with nominal vegetative growth while animals are present are
also considered by EPA to meet the second part of the AFO definition, even if substantial growth
106
-------
of vegetation occurs during months when animals are kept elsewhere. Thus, in the case of a
wintering operation, EPA considers the facility an AFO potentially subject to NPDES regulations
as a CAFO. It is not EPA's intention, however, to include within the AFO definition pasture or
rangeland that has a small, bare patch of land, in an otherwise vegetated area, that is caused by
animals frequently congregating if the animals are not confined to the area.
The following examples are presented to further clarify EPA's intent. 1) When animals
are restricted to vegetated areas as in the case of rotational grazing, they would not be considered
to be confined in an AFO if they are rotated out of the area while the ground is still covered with
vegetation. 2) If a small portion of a pasture is barren because, e.g., animals congregate near the
feed trough in that portion of the pasture, that area is not considered an AFO because animals are
not confined to the barren area. 3) If an area has vegetation when animals are initially confined
there, but the animals remove the vegetation during their confinement, that area would be
considered an AFO. This may occur, for instance, at some wintering operations.
Thus, to address the ambiguities noted above, EPA is proposing to clarify the regulatory
language that defines the term "animal feeding operation" as follows: "An animal feeding
operation or AFO is a facility where animals (other than aquatic animals) have been, are, or will
be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month
period. Animals are not considered to be stabled or confined when they are in areas such as
pastures or rangeland that sustain crops or forage growth during the entire time that animals are
present. Animal feeding operations include both the production area and land application area as
defined below." EPA is interested in receiving comments regarding whether the proposed
revision to the AFO definition clearly distinguishes confinement areas from pasture land.
2. Proposed Changes to the NPDES Permitting Regulation for
Determining Which AFOs are CAFOs
To improve the effectiveness and clarity of the NPDES regulation for CAFOs, EPA is
proposing to revise the regulation as discussed in the following sections.
a. Eliminate the Term "Animal Unit"
V
To remove confusion for the regulated community concerning the definition of the term
"animal unit" or "AU," EPA is proposing to eliminate the use of the term in the revised
regulation. Instead of referring to facilities as having greater or fewer than 500 animal units, for
example, EPA will use the term "CAFO" to refer to those facilities that are either defined or
designated, and all others as "AFOs." However, in the text of today's preamble, the term AU
will be used in order to help the reader understand the differences between the existing regulation
and today's proposal. If this revision is adopted, the term AU will not be used in the final
regulation. Section VHB, above, lists the numbers of animals in each sector that would be used
to define a facility as a CAFO.
107
-------
EPA received comment on the concept of animal units during the AFO Strategy listening jj
sessions, the small business outreach process, and on comments submitted for the draft CAFO j!
NPDES Permit Guidance and Example Permit. EPA's decision to move away from the concept |j
of "animal units" is supported by the inconsistent use of this concept across a number of federal 'i
programs, which has resulted in confusion in the regulated community. A common thread acrossj
all of the federal programs is the need to normalize numbers of animals across animal types.
Animal units have been established based upon a number of different values that include live |j
weight, forage requirements, or nutrient excretion.
USDA and EPA have different "animal unit" values for the livestock sectors. Animal
unit values used by USDA are live-weight based, and account for all sizes and breeds of animals
at a given operation. This is particularly confusing as USDA's animal unit descriptions result in i1
different values in each sector and at each operation.
The United States Department of Interior (Bureau of Land Management and National ;
Park Service) also references the concept of "animal unit" in a number of programs. These
programs are responsible for the collection of grazing fees for federal lands. The animal unit
values used in these programs are based upon forage requirements. For Federal lands an animal
unit represents one mature cow, bull, steer, heifer, horse, mule, or five sheep, or five goats, all
over six months of age. An animal unit month is based on the amount of forage needed to :'
sustain one animal unit for one month. Grazing fees for Federal lands are charged by animal unit ;!
months. j,
r
In summary, using the total number of head that defines an operation as a CAFO will |j
minimize confusion with aninfal unit definitions established by other programs. See tables 7-6 '•'
and 7-7 above.
b. How Will Operations With Mixed Animal Types be Counted?
EPA is proposing to eliminate the existing mixed animal provision, which currently
requires an operator to add the number of animal units from all animal sectors at the facility
when determining whether it is a CAFO. (Poultry is currently excluded from this mixed animal
type calculation). While the mixed calculation would be eliminated, once the number of animals
from one sector (e.g. beef, dairy, poultry, swine, veal) of one type cause an operation to be
defined as a CAFO, manure from all confined animal types at the facility would be covered by
the permit conditions. In the event that waste streams from multiple livestock species are
commingled, and the regulatory requirements for each species are not equivalent, the permit must
apply the more stringent requirements.
In the existing regulation, a facility with 1,000 animal units or the cumulative number of
mixed animal types which exceeds 1,000, is defined as a CAFO. Animal unit means a unit of
measurement for any animal feeding operation calculated by adding the following numbers: the
number of slaughter and feeder cattle multiplied by 1.0, plus the number of mature dairy cattle
108
-------
multiplied by 1.4, plus the number of swine weighing over 25 kilograms (approximately 55
pounds) multiplied by 0.4, plus the number of sheep multiplied by 0.1, plus the number of horses
multiplied by 2.0. As mentioned, poultry operations are excluded from this mixed unit
calculation as the current regulation simply stipulates the number of birds that define the
operation as a CAFO, and assigns no multiplier.
Because simplicity is one objective of these proposed regulatory revisions, the Agency
believes that either all animal types, including poultry, covered by the effluent guidelines and
NPDES regulation should be included in the formula for mixed facilities, or EPA should
eliminate the facility multipliers from the revised rule. Today's rulemaking proposes changes
that would have to be factored in to a revised mixed animal calculation which would make the
regulation more complicated to implement. For example, EPA is proposing to cover additional
animal types (dry chicken operations, immature swine and heifer operations). Thus, EPA is
proposing to eliminate the mixed operation calculation rather than revise it and create a more
complicated regulation to implement that would potentially bring smaller farms into regulation.
EPA believes that the effect of this proposed change would be sufficiently protective of
the environment while maintaining a consistently enforceable regulation. EPA estimates 25
percent of AFOs with less than 1,000 AU have multiple animal types present simultaneously at
one location, and only a small fraction of these AFOs would be CAFOs exceeding either 300 AU
or 500 AU when all animal types are counted. EPA also believes that few large AFOs possess
mixed animals due to the increasingly specialized nature of livestock and poultry production.
Therefore, EPA believes that a rule which required mixed animal types to be part of the threshold
calculation to determine if a facility is a CAFO would result in few additional operations meeting
the definition of a CAFO. In addition, most facilities with mixed animal types tend to be much
smaller, and tend to have more traditional, oftentimes more sustainable, production systems.
These farms tend to be less specialized, engaging in both animal and crop production. They
often have sufficient cropland and fertilizer needs to land apply manure nutrients generated at the
farm's livestock or poultry business. Nevertheless, should an such AFO be found to be a
significant contributor of pollution to waters of the U.S., it could be designated a CAFO by the
permit authority.
EPA is, therefore, proposing to eliminate the mixed animal calculation in determining
which AFOs are CAFOs. Once an operation is a CAFO for any reason, manure from all confined
animal types at the facility is subject to the permit requirements. EPA is requesting comment on
the number of operations that could potentially have the equivalent of 500 AU using the mixed
calculation that would be excluded from regulation under this proposal.
c. Is an AFO Considered a CAFO if it Only Discharges During a
25-Year, 24-Hour Storm?
EPA is proposing to eliminate the 25-year, 24-hour storm event exemption from the
CAFO definition (40 CFR 122.23, Appendix B), thereby requiring any operation that meets the
109
-------
definition of a CAFO either to apply for a permit or to establish that it has no potential to
discharge. Under the proposed three-tier structure an operation with 300 AU to 1,000 AU may
certify that it is not a CAFO if it is designed, constructed, and maintained in accordance with
today's effluent guidelines and it does not meet any of the risk-based conditions. See Section
Vn.B.2.
The existing NPDES definition of a CAFO provides that "no animal feeding operation is
a concentrated animal feeding operation... as defined above... if such animal feeding operation
discharges only as the result of a 25-year, 24-hour storm event" (40 CFR. § 122.23, Appendix
B). This provision applies to AFOs with 300 AU or more that are defined as CAFOs under the
existing regulation. (Facilities of any size that are CAFOs by virtue of designation are not
eligible for this exemption because, by the terms of designation, it does not apply to them.
Moreover, they have been determined by the permit authority to be a significant contributor of
pollution to waters of the U.S.)
The 25-year, 24-hour standard is an engineering standard used for construction of storm
water detention structures. The term "25-year, 24-hour storm event" means the maximum 24-
hour precipitation event with a probable recurrence of once in 25 years, as defined by the
National Weather Service (NWS) in Technical Paper Number 40 (TP40), "Rainfall Frequency
Atlas of the United States," May 1961, and subsequent amendments, or by equivalent regional or
State rainfall probability information developed therefrom. [40 CFR Part 412.1I(e)J. (Note that
the NWS is updating some of the Precipitation Frequency Publications, including part of the
TP40. In 1973, the National Atmospheric and Oceanic Administration (NOAA) issued the
NOAA Atlas 2, Precipitation Frequency Atlas of the Western United States. The Atlas is
published in a separate volume for each of the eleven western states. An update for four of the
State volumes is currently being conducted. In addition, the NWS is updating TP40 for the Ohio
River Basin which covers a significant portion of the eastern U.S. The updates will reflect more
than 30 years of additional data and will benefit from NWS enhanced computer capabilities since
the original documents were generated almost 40 years ago.) As discussed further in section
VIE, the 25-year, 24-hour storm event also is used as a standard in the effluent limitation
guideline.
The circularity of the 25-year, 24-hour storm event exemption in the existing CAFO
definition has created confusion that has led to difficulties in implementing the NPDES
regulation. The effluent guidelines regulation, which is applicable to permitted CAFOs, requires
that CAFOs be designed and constructed to contain such an event. However, the NPDES
regulations allows facilities that discharge only as a result of such an event to avoid obtaining a
permit. This exemption has resulted in very few operations actually obtaining NPDES permits,
which has hampered implementation of the NPDES program. While there are an estimated
12,000 AFOs likely to meet the current definition of a CAFO, only about 2,500 such facilities
have obtained an NPDES permit. Many of these unpermitted facilities may incorrectly believe
they qualify for the 25-year, 24-hour storm permitting exemption. These unpermitted facilities
operate outside the current NPDES program, and State and EPA NPDES permit authorities lack
110
-------
the basic information needed to determine whether or not the exemption has been applied
correctly and whether or not the CAFO operation is in compliance with NPDES program
requirements.
EPA does not believe that the definition as a CAFO should hinge on whether an AFO
only discharges pollutants due to a 25-year, 24-hour storm event. Congress clearly intended for
concentrated animal feeding operations to be subject to NPDES permits by explicitly naming
CAFOs as point sources in the Clean Water Act Section 502(14). Further, Section 101(a) of the
Act specifically states that elimination of discharges down to zero is to be achieved where
possible, and EPA does not believe that facilities should avoid the regulatory program altogether
by merely claiming that they meet the 25-year, 24-hour criterion. This issue is discussed further
below in section VE.C.2(c).
• The public has expressed widespread concern regarding whether some of these currently
unpermitted facilities are, in fact, entitled to this exemption. Based on comments EPA has
received in a variety of forums, including during the AFO Strategy listening sessions and on the
draft CAFO permit guidance, EPA believes there is a strong likelihood that many of these
facilities are discharging pollutants to waters of the U.S. EPA is concerned that, in applying the
25-year, 24-hour storm exemption, operations are not now taking into consideration runoff from
their production areas, or are improperly interpreting which discharges are the result of 25-year
24-hour storms and chronic rainfall which may result in breaches and overflows of storage
systems, all of which cause pollution to enter waters of the U.S. Additionally, facilities may not
be considering discharges from improper land application of manure and wastewater.
EPA is today proposing to eliminate the 25-year, 24-hour storm exemption from the
CAFO definition (40 CFR 122.23, Appendix B) in order to: a) ensure that all CAFOs with a
potential to discharge are appropriately permitted; b) ensure through permitting that facilities are,
in fact, properly designed, constructed, and maintained to contain a 25-year, 24-hour storm event,
or to meet a zero discharge requirement, as the case may be; c) improve the ability of EPA and
State permit authorities to monitor compliance; d) ensure that facilities do not discharge
pollutants from their production areas or from excessive land application of manure and
wastewater; e) make the NPDES permitting provision consistent with today's proposal to
eliminate the 25-year, 24-hour storm design standard from the effluent guidelines for swine, veal
and poultry; and f) achieve EPA's goals of simplifying the regulation, providing clarity to the
regulated community, and improving the consistency of implementation.
Under the proposed two-tier structure, any facility that is defined as a CAFO would be a
CAFO even if it only discharges in the event of a 25-year, 24-hour storm. Further, the CAFO
operator would be required to apply for an NPDES permit, as discussed below regarding the duty
to apply for a NPDES permit. (If the operator believes the facility never discharges, the operator
could request a determination of no potential to discharge, as discussed below.) Under the three-
tier structure a facility with 300 AU to 1,000 AU would be required to either certify it is not a
CAFO, to apply for a permit, or demonstrate it has no potential to discharge. Today's effluent
111
-------
guidelines proposal would retain the design specification for beef or dairy facilities, which would
allow a permitted'facility to discharge due to a 25-year, 24-hour event, as long as the facility's
containment system is designed, constructed and operated to handle manure and wastewater plus
precipitation from a 25-year, 24-hour storm event (unless a permit writer imposed a more
stringent, water quality-based effluent limitation). However, a facility that meets the definition
of CAFO and discharges during a 25-year, 24-hour storm event, but has failed to apply for an
NPDES permit (or to certify in the three-tier structure), would be subject to enforcement for
violating the CWA. Swine, veal and poultry CAFOs would be required to achieve a zero
discharge standard at all times.
EPA considered limiting this change to the very largest CAFOs (e.g., operations with
1,000 or more animal units), and retaining the exemption for smaller facilities. However, EPA is
concerned that this could allow significant discharges resulting from excessive land application
of manure and wastewater to remain beyond the scope of the NPDES permitting program,
thereby resulting in ongoing discharge of CAFO-generated pollutants into waters of the U.S.
Moreover, EPA believes that retaining the exemption for certain operations adds unnecessary
complexity to the CAFO definition.
s
The Small Business Advocacy Review Panel also considered the idea of removing the 25-
year, 24-hour exemption. While the Panel agreed that this was generally appropriate for
operations above the 1,000 AU threshold, it was divided on whether it would also be appropriate
to remove the exemption for facilities below this threshold. The Panel noted that for some such
facilities, removing the exemption would not expand the scope of the current regulation, but
rather ensure coverage for facilities that should already have obtained a permit. However, the
Panel also recognized that eliminating the exemption would require facilities that do properly
quality for it - e.g., because they do have sufficient manure management and containment in
place, or for some other reason, do not discharge except in a 25-year, 24-hour storm - to obtain a
permit or certify that none is needed. The Panel recommended that EPA carefully weigh the
costs and benefits of removing the exemption for small entities and that it fully analyze the
incremental costs associated with permit applications for those facilities not presently permitted
that can demonstrate that they do not discharge in less than a 25-year, 24-hour storm event, as
well as any costs associated with additional conditions related to land application, nutrient
management, or adoption of BMPs that the permit might contain. The Panel further
recommended that EPA consider reduced application requirements for small operators affected
by the removal of the exemption. The Agency requests comment on whether to retain this
exemption for small entities and at what animal unit threshold would be appropriate for doing so.
d. Who Must Apply for and Obtain an NPDES Permit?
EPA is proposing today to adopt regulations that would expressly require all CAFO
owners or operators to apply for an NPDES permit. See proposed §122.23(c). That is, owners or
operators of all facilities defined or designated as CAFOs would be required to apply for an
NPDES permit. The existing regulations contain a general duty to apply for a permit, which EPA
112
-------
believes applies to virtually all CAFOs. The majority of CAFO owner or operators, however,
have not applied for an NPDES permit. Today's proposed revisions would clarify that all
CAFOs owners or operators must apply for an NPDES permit; however, if he or she believes the
CAFO does not have a potential to discharge pollutants to waters of the U.S. from either its
production area or its land application area(s), he or she could make a no potential discharge
demonstration to the permit authority in lieu of submitting a full permit application. If the permit
authority agrees that the CAFO does not have a potential to discharge, the permit authority would
not need to issue a permit. However, if the unpermitted CAFO does indeed discharge, it would
be violating the CWA prohibition against discharging without a permit and would be subject to
civil and criminal penalties. Thus, an unpermitted CAFO does not get the benefit of the 25-year,
24-hour storm standard established by the effluent guidelines for beef and dairy, nor does it have
the benefit of the upset and bypass affirmative defenses.
The duty to apply for a permit under existing regulations
EPA believes that virtually all facilities defined as CAFOs already have a duty to apply
for a permit under the current NPDES regulations, because of their past or current discharges or
potential for future discharge. Under NPDES regulations at 40 CFR Part 122.21(a), any person
who discharges or proposes to discharge pollutants to the waters of the United States from a
point source is required to apply for an NPDES permit. CAFOs are point sources by definition,
under §502 of the CWA and 40 CFR 122.2. Thus, any CAFO that "discharges or proposes to
discharge" pollutants must apply for a permit.
Large CAFOs with greater than 1,000 AU pose a risk of discharge in a number of
different ways. For example, a discharge of pollutants to surface waters can occur through a spill
from the waste handling facilities, from a breach or overflow of those facilities, or through runoff
from the feedlot area. A discharge can also occur through runoff of pollutants from application
of manure and associated wastewaters to the land or through seepage from the production area to
ground water where there is a direct hydrologic connection between ground water and surface
water. Given the large volume of manure these facilities generate and the variety of ways they
may discharge, and based on EPA's and the States' own experience in the field, EPA believes
that all or virtually all large CAFOs have had a discharge in the past, have a current discharge, or
have the potential to discharge in the future. A CAFO that meets any one of these three criteria
would be a facility that "discharges or proposes to discharge" pollutants and would therefore
need to apply for a permit under the current regulations.
Where CAFO has not discharged in the past, does not now discharge pollutants, and does
not expect to discharge pollutants in the future, EPA believes that the owner or operator of that
facility should demonstrate during the NPDES permit application process that it is, in fact, a "no
discharge" facility. See proposed §122.23(e). EPA anticipates that very few large CAFOs will
be able to successfully demonstrate that they do not discharge pollutants and do not have a
reasonable potential to discharge in the future, and furthermore, that very few large CAFOs will
113
-------
wish to forego the protections of an NPDES permit. For instance, only those beef and dairy
CAFOs with an NPDES permit will be authorized to discharge in a 25-year, 24-hour storm.
EPA also believes that a CAFO owner or operator's current obligation to apply for an
NPDES permit is based not only on discharges from the feedlot area but also on discharges from
the land application areas under the control of the CAFO operator. More specifically, discharges
of CAFO-generated manure and/or wastewater from such land application areas should be
viewed as discharges from the CAFO itself for the purpose of determining whether it has a
potential to discharge. EPA recognizes, however, that it has not previously defined CAFOs to
include the land application area. EPA is proposing to explicitly include the land application
area in the definition of a CAFO in today's action.
The need for a clarified, broadly applicable duty to apply
EPA believes that virtually all large CAFOs have had a past or current discharge or have
the potential to discharge in the future, and that meeting any one of these criteria would trigger a
duty to apply for a permit. Today, EPA is proposing to revise the regulations by finding that, as a
rebuttable presumption, all CAFOs do have a potential to discharge and, therefore, are required.
to apply for and to obtain an NPDES permit unless they can demonstrate that they will not
discharge. See proposed §122.23(c). (See section Vn(F)3 for a fuller discussion on
demonstrating "no potential to discharge.")
EPA has not previously sought to categorically adopt a duty to apply for an NPDES
permit for all facilities within a particular industrial sector. The Agency is proposing today to do
so for CAFOs for reasons that involve the unique characteristics of CAFOs and the zero
discharge regulatory approach that applies to them.
First, as noted, since the inception of the NPDES permitting program in the 1970s, a
relatively small number of larger CAFOs has actually sought permits. Information from State
permit authorities and EPA's own regional offices indicates that, currently, approximately 2,500
CAFOs have NPDES permits out of approximately 12,000 CAFOs with greater than 1,000 AU.
EPA believes there are a number of reasons why so few CAFOs have sought NPDES
permits over the years. The primary reason appears to be that the definition of a CAFO in the
current regulations (as echoed in the regulations of some State programs) excludes animal
feeding operations that do not discharge at all or discharge only in the event of a 25-year, 24-hour
storm. [40 CFR 122.23, Appendix B]. Based on the existing regulation, many animal feeding
operations that claim to be "zero dischargers" believe that they are not subject to NPDES
permitting because they are excluded from the CAFO definition and thus are not CAFO point
sources.
EPA believes that many of the facilities that have relied on this exclusion from the CAFO
definition may have misinterpreted this provision. It excludes facilities from the CAFO
114
-------
definition only when they neither discharge pollutants nor have the potential to discharge
pollutants in a 25-year, 24-hour storm. In fact, as explained above, a facility that has at least a
potential to discharge pollutants (and otherwise meets the CAFO definition) not only is defined
as a CAFO but also has a duty to apply for an NPDES permit, regardless of whether it actually
discharges. (40 CFR 122.21(a)). Thus, many facilities that have at least a potential to discharge
manure and wastewaters may have avoided permitting based on an incorrect reliance on this
definitional exclusion.
To compound the confusion under the current regulations, EPA believes, there has been
misinterpretation surrounding the issue of discharges from a CAFO's land application areas. As
EPA has explained in section VILD of today's notice, runoff from land application of CAFO
manure is viewed as a discharge from the CAFO point source itself. Certain operations may
have claimed to be "zero dischargers" when in fact they were not, and are not, zero dischargers
when runoff from their land application areas is taken into account.
Another category of operations that may have improperly avoided permitting are those
that have had a past discharge of pollutants, and are not designed and operated to achieve zero
discharge except in a 25-year, 24-hour storm event. Many of these facilities may have decided
not to seek a permit because they believe they will not have any future discharges. However, as
explained above, an operation that has had a past discharge of pollutants is covered by the
NPDES permitting regulations in the same way as operations that have a "potential" to discharge
~ i.e., it is not only defined as a CAFO (where it meets the other elements of the definition) but is
required to apply for a permit [Can v. Alta Verde Industries, Inc., 931 F.2d 1055 (5* Cir. 1991)].
Facilities that have had a past discharge meet the criteria of §122.21 (a), in EPA's view, both as
"dischargers" and as operations that have the potential for further discharge. Accordingly, they
are required to apply for an NPDES permit. Misinterpretation regarding the need to apply for a
permit may also have occurred in cases where the past discharges were from land application
runoff, as explained above.
Finally, the nature of these operations is that any discharges from manure storage
structures to waters of the U.S. are usually only intermittent, either due to accidental releases
from equipment failures or storm events or, in some cases, deliberate releases such as pumping
out lagoons or pits. The intermittent nature of these discharges, combined with the large
numbers of animal feeding operations nationwide, makes it very difficult for EPA and State
regulatory agencies to know where discharges have occurred (or in many cases, where animal
feeding operations are even located), given the limited resources for conducting inspections. In
this sense, CAFOs are distinct from typical industrial point sources subject to the NPDES
program, such as manufacturing plants, where a facility's existence and location and the fact that
it is discharging wastewaters at all is usually not in question. Accordingly, it is much easier for
CAFOs to avoid the permitting system by not reporting their discharges, and there is evidence
that such avoidances have taken place.
115
-------
In sum, EPA believes it is very important in these regulatory revisions to ensure that all
CAFOs have a duty to apply for an NPDES permit, including those facilities that currently have a
duty to apply because they meet the definition of CAFO under the existing regulations and those
facilities which would meet the proposed revised definition of CAFO. Two of the revisions that
EPA is proposing today to other parts of the CAFO regulations would themselves significantly
address this matter. First, EPA is proposing to eliminate the 25-year, 24-hour storm exemption
from the definition of a CAFO. Operations would no longer be able to avoid being defined as
CAFO point sources subject to permitting on the basis that they do not discharge or discharge
only in the event of a 25-year, 24-hour storm. Second, EPA is proposing to clarify that land
application areas are part of the CAFO and any associated discharge from these areas is subject
to permitting.
While these two proposed changes would help address the "duty to apply" issue, EPA
does not believe they would go far enough. Even with eliminating the 25-year, 24-hour storm
exemption from the CAFO definition, EPA is concerned that operations would still seek to avoid
permitting by claiming they are "zero dischargers." Specifically, EPA has encountered a further
zero discharge conundrum: A facility claims that by controlling its discharge down to zero - the
very level that a permit would require — it has effectively removed itself from CWA jurisdiction,
because the CWA simply prohibits discharging without a permit, so a facility that does not
discharge does not need a permit. EPA believes this would be an incorrect reading of the CWA
and would not be a basis for claiming an exemption from permitting (as explained directly
below). Therefore, it is important to clarify in the regulations that even CAFOs that claim to be
zero dischargers must apply for a permit.
To round out the basis for this proposed revision, EPA is proposing a regulatory
presumption in the regulations that all CAFOs have a potential to discharge to the waters such
that they should be required to apply for a permit. EPA believes this would be a reasonable
presumption on two grounds. First, the Agency believes this is reasonable from a factual
standpoint, as is fully discussed in section V of today's preamble.
This factual finding would become even more compelling under today's proposals to
eliminate the 25-year, 24-hour storm exemption from the CAFO definition and to clarify that
discharges from on-site land application areas, are considered CAFO point source discharges. If
these two proposals were put in place, EPA believes, many fewer operations would be claiming
that they do not discharge.
Second, a presumption that all CAFOs have a potential to discharge would be reasonable
because of the need for clarity on the issues described above and the historical inability under the
current regulations to effectuate CAFO permitting. Under today's proposal, the duty would be
for each CAFO to apply for a permit, not necessarily to obtain one. A CAFO that believes it
does not have a potential to discharge could seek to demonstrate as much to the permitting
authority in lieu of submitting a full permit application. (To avoid submitting a completed permit
application, a facility would need to receive a "no potential to discharge" determination from the
116
-------
permit authority prior to the deadline for applying for a permit. See section Vn.F.3 below.) If
the demonstration were successful, the permitting authority would not issue a permit. Therefore,
the duty to apply would be based on a rebuttable presumption that each facility has a potential to
discharge. Without this rebuttable presumption, EPA believes it could not effectuate proper
permitting of CAFOs because of operations that would claim to be excluded from the CWA
because they do not discharge.
CWA authority for a duty to apply
In pre-proposal discussions, some stakeholders have questioned EPA's authority under
the Clean Water Act to impose a duty for all CAFOs to apply for a permit. EPA believes that the
CWA does provide such authority, for the following reasons.
Section 301 (a) of the CWA says that no person may discharge without an NPDES permit.
The Act is silent, however, on the requirement for permit applications. It does not explicitly
require anyone to apply for a permit, as some stakeholders have pointed out. But neither does the
Act expressly prohibit EPA from requiring certain facilities to submit an NPDES permit
application or from issuing an NPDES permit without one. Section 402(a) of the Act says simply
that the Agency may issue an NPDES permit after an opportunity for public hearing.
Indeed, finding that EPA could not require permitting of CAFOs would upset the
legislative scheme and render certain provisions of the Act meaningless. Section 301(b)(2)(A),
which sets BAT requirements for existing sources and thus is at the heart of the statutory scheme,
states that EPA shall establish BAT standards that "require the elimination of discharges of all
pollutants if the Administrator finds ... that such elimination is technologically and
economically achievable...." In other words, Congress contemplated that EPA could set effluent
standards going down to zero discharge where appropriate. Section 306, concerning new
sources, contains similar language indicating that zero discharge may be an appropriate standard
for some new sources. Section 402 puts these standards into effect by requiring EPA to issue
NPDES permits that apply these standards and ensure compliance with them. Thus, the Act
contemplates the issuance of NPDES permits that require zero discharge. These provisions are
underscored by Section 101(a) of the Act, which sets a national goal of not just reducing but
eliminating the discharge of pollutants to the waters.
This statutory scheme would be negated if facilities were allowed to avoid permitting by
claiming that they already meet a zero discharge standard that is established in the CAFO
regulations and that a permit would require. Issuing a zero discharge standard would be an act of
futility because it could not be implemented through a permit. Under a contrary interpretation, a
CAFO could repeatedly discharge and yet avoid permitting by claiming that it does not intend to
discharge further. EPA does not believe that Congress intended to tie the Agency's hands in this
manner. To be sure, in no other area of the NPDES program are industrial operations allowed to
avoid permitting by claiming that they already meet the limits that a permit would require. That
would be a plainly wrong view of the Act; Section 301(a) states unequivocally that no person
117
-------
may discharge at all without a permit. The Act does not contemplate a different system for
facilities that are subject to a zero discharge standard, and it is the unique nature of the zero
discharge standard that makes it appropriate for EPA to require CAFOs to apply for permits,
EPA also finds authority to require NPDES permit applications from CAFOs in Section
308 of the Act. Under Section 308, the Administrator may require point sources to provide
information "whenever required to carry out the objective of this chapter," for purposes, among
other things, of determining whether any person is in violation of effluent limitations, or to carry
out Section 402 and other provisions. Because EPA proposes a presumption that all CAFOs
have a potential to discharge pollutants, it is important, and within EPA's authority, to collect
information from CAFOs in order to determine if they are in violation of the Act or otherwise
need a permit.
EPA solicits comment on the proposed duty to apply.
e. The Definitions of AFO and CAFO Would Include the Land
Areas Under the Control of the Operator on Which Manure is
. Applied
In today's proposal, EPA defines an AFO to include both the animal production areas of
the operation and the land areas, if any, under the control of the owner or operator, on which
manure and associated waste waters are applied. See proposed §122.23(a)(l). The definition of
a CAFO is based on the AFO definition and thus would include the land application areas as
well. Accordingly, a CAFO's permit would include requirements to control not only discharges
from the production areas but also those discharges from the land application areas. Under the
existing regulations, discharges from a CAFO's land application areas that result from improper
agricultural practices are already considered to be discharges from the CAFO and therefore, are
subject to the NPDES permitting program. However, EPA believes it would be helpful to clarify
the regulations on this point.
By the term "production area," EPA means the animal confinement areas, the manure
storage areas (e.g. lagoon, shed, pile), the feed storage areas (e.g., silo, silage bunker), and the
waste containment areas (e.g., berms, diversions). The land application areas include any land to
which a CAFO's manure and wastewater is applied (e.g., crop fields, fields, pasture) that is under
the control of the CAFO owner or operator, whether through ownership or a lease or contract.
The land application areas do not include areas that are not under the CAFO owner's or
operator's control. For example, where a nearby farm is owned and operated by someone other
than the CAFO owner or operator and the nearby farm acquires the CAFO's manure or
wastewater, by contract or otherwise, and applies those wastes to its own crop fields, those crop
fields are not part of the CAFO.
The definition of an AFO under the existing regulations refers to a "lot or facility" that
meets certain conditions, including that "[cjrops, vegetation!,] forage growth, or post-harvest
118
-------
residues are not sustained in the normal growing season over any portion of the lot or facility."
40 CFR 122.23(b)(l). In addition, the regulations define "discharge of a pollutant" as the
addition of any pollutant to waters of the United,States from any point source. 40 CFR 122.2.
EPA interprets the current regulations to include discharges of CAFO-generated manure and
wastewaters from improper land application to areas under the control of the CAFO as
discharges from the CAFO itself. Otherwise, a CAFO could simply move its wastes outside the
area of confinement, and over apply or otherwise improperly apply those wastes, which would
render the CWA prohibition on unpermitted discharges of pollutants from CAFOs meaningless.
Moreover, the pipes and other manure-spreading equipment that convey CAFO manure and
wastewaters to land application areas under the control of the CAFO are an integral part of the
CAFO. Under the existing regulations, this equipment should be considered part of the CAFO,
and discharges from this equipment that reach the waters of the United States as a result of
improper land application should be considered discharges from the CAFO for this reason as
well. In recent litigation brought by citizens against a dairy farm, a federal court reached a
similar conclusion. See CARE v. Sid Koopman Dairy, et al., 54 F. Supp. 2d 976 (E.D. Wash.,
1999).
One of the goals of revising the existing CAFO regulations is to make the regulations
clearer and more understandable to the regulated community and easier for permitting authorities
to implement. EPA believes that amending the definition of an AFO (and, by extension, CAFO)
to expressly include land application areas will help achieve this clarity and will enable
permitting authorities to both more effectively implement the proposed effluent guidelines and to
more effectively enforce the CWA's prohibition on discharging without a permit. It would be
clear under this revision that the term "CAFO" means the entire facility, including land
application fields and other areas under the CAFO's control to which it land applies its manure
and wastewater. By proposing to include land application areas in the definition of an AFO, and
therefore, a CAFO, discharges from those areas would, by definition, be discharges from a point
source - i.e., the CAFO. There would not need to be a separate showing of a discernible,
confined, and discrete conveyance such as a ditch.
While the CWA includes CAFOs within the definition of a point source, it does not
elaborate on what the term CAFO means. EPA has broad discretion to define the term CAFO.
Land application areas are integral parts of many or most CAFO operations. Land application is
typically the end point in the cycle of manure management at CAFOs. Significant discharges to
the waters in the past have been attributed to the land application of CAFO-generated manure
and wastewater. EPA does not believe that Congress could have intended to exclude the
discharges from a CAFO's land application areas from coverage as discharges from the CAFO
point source. Moreover, defining CAFOs in this way is consistent with EPA's effluent
limitations guidelines for other industries, which consider on-site waste treatment systems to be
part of the production facilities in that the regulations restrict discharges from the total operation.
Thus, it is reasonable for EPA to revise the regulations by including land application areas in the
definition of an AFO and CAFO.
119
-------
While the proposal would include the land application areas as part of the AFO and
CAFO, it would continue to count only those animals that are confined in the production area
when determining whether a facility is a CAFO.
EPA is also considering today whether it is reasonable to interpret the agricultural storm
water exemption as not applicable to any discharges from CAFOs. See section VH.D.2. If EPA
were to adopt that interpretation, all discharges from a CAFO's land application areas would be
subject to NPDES requirements, regardless of the rate or manner in which the manure has been
applied to the land.
Please refer to section VII.D for a full discussion of land application, including EPA's
proposal with regard to land application of CAFO manure by non-CAFOs.
EPA is requesting comment on this approach.
f. What Types of Poultry Operations are CAFOs?
EPA is proposing to revise the CAFO regulations to include all poultry operations with
the potential to discharge, and to establish the threshold for AFOs to be defined as CAFOs at
50,000 chickens and 27,500 turkeys. See proposed §122.23(a)(3)(i)(H) and (I). The proposed
revision would remove the limitation on the type of manure handling or watering system
employed at laying hen and broiler operations and would, therefore, address all poultry
operations equally. This approach would be consistent with EPA's objective of better addressing
the issue of water quality impacts associated with both storage of manure at the production area
and land application of manure while simultaneously simplifying the regulation. The following
discussion focuses on the revisions to the threshold for chickens under each of the co-proposed
regulatory alternatives.
The existing NPDES CAFO definition is written such that the regulations only apply to
laving hen or broiler operations that have continuous overflow watering or liquid manure
handling systems (i.e.,"wet" systems). (40 CFR Part 122, Appendix B.) EPA has interpreted this
language to include poultry operations in which dry litter is removed from pens and stacked in
areas exposed to rainfall, or piles adjacent to a watercourse. These operations may be considered
to have established a crude liquid manure system (see 1995 NPDES Permitting Guidance for
CAFOs). The existing CAFO regulations also specify different thresholds for determining which
AFOs are CAFOs depending on which of these two types of systems the facility uses (e.g.,
100,000 laying hens or broilers if the facility has continuous overflow watering; 30,000 laying
hens or boilers if the facility has a liquid manure system). When the NPDES CAFO regulations
were promulgated, EPA selected these thresholds because the Agency believed that most
commercial operations used wet systems (38 FR 18001,1973).
In the 25 years since the CAFO regulations were promulgated, the poultry industry has
changed many of its production practices. Many changes to the layer production process have
120
-------
been instituted to keep manure as dry as possible. Consequently, the existing effluent guidelines
do not apply to many broiler and laying hen operations, despite the fact that chicken production
poses risks to surface water and ground water quality from improper storage of dry manure, and
improper land application. It is EPA's understanding that continuous overflow watering has
been largely discontinued in lieu of more efficient watering methods (i.e., on demand watering),
and that liquid manure handling systems represent perhaps 15 percent of layer operations overall,
although in the South approximately 40 percent of operations still have wet manure systems.
Despite the CAFO regulations, nutrients from large poultry operations continue to
contaminate surface water and ground water due to rainfall coming in contact with dry manure
that is stacked in exposed areas, accidental spills, etc. In addition, land application remains the
primary management method for significant quantities of poultry litter (including manure
generated from facilities using "dry" systems). Many poultry operations are located on smaller
parcels of land in comparison to other livestock sectors, oftentimes owning no significant
cropland or pasture, placing increased importance on the proper management of the potentially
large amounts of manure that they generate. EPA also believes that all types of livestock
operations should be treated equitably under the revised regulation.
As documented in the Environmental Impact Assessment, available in the rulemaking
Record, poultry production in concentrated areas such as in the Southeast, the Delmarva
Peninsula in the mid-Atlantic, and in key Midwestern States has been shown to cause serious
water quality impairments. For example, the Chesapeake Bay watershed's most serious water
quality problem is caused by the overabundance of nutrients (e.g. nitrogen and phosphorus),
EPA's Chesapeake Bay Program Office estimates that poultry manure is the largest source of
excess nitrogen and phosphorous reaching the Chesapeake Bay from the lower Eastern Shore of
Maryland and Virginia, sending more than four times as much nitrogen into the Bay as leaky
septic tanks and runoff from developed areas, and more than three times as much phosphorus as
sewage treatment plants. These discharges of nutrients result from an over-abundance of manure
relative to land available for application, as well as the management practices required to deal
with the excess manure. The State of Maryland has identified instances where piles of chicken
litter have been stored near ditches and creeks that feed tributaries of the Bay. Soil data also
suggest that in some Maryland counties with poultry^production the soils already contain 90
percent or more of the phosphorus needed by crops. The State of Maryland has surveyed the
Pocomoke, Transquaking, and Manokin river systems and has concluded that 70 - 87 percent of
all nutrients reaching those waters came from farms (though not all from AFOs). Based on EPA
data, phosphorus concentrations in the Pocomoke Sound have increased more than 25 percent
since 1985, suffocating sea grasses that serve as vital habitat for fish and crabs. In 1997, poultry
operations were found to be a contributing cause ofPfiesteria outbreaks in the Pokomoke River
and Kings Creek (both in Maryland) and in the Chesapeake Bay, in which tens of thousands of
fish were killed. Other examples of impacts from poultry manure are discussed in section V of
today's proposal.
121
-------
Dry manure handling is the predominant practice in the broiler and other meat type
chicken industries. Birds are housed on dirt or concrete floors that have been covered with a
bedding material such as wood shavings. Manure becomes mixed with this bedding to form a
litter, which is removed from the house in two ways. After each flock of birds is removed from '
the house a portion of litter, referred to as cake, is removed. Cake is litter that has become
clumped, usually below the watering system, although it can also be formed by a concentration of j
manure. In addition, the operator also removes all of the litter from the house periodically. The !
frequency of the "whole house" clean-out varies but commonly occurs once each year, unless a ;
breach of biosecurity is suspected. >
Broiler operations generally house between five and six flocks of birds each year, which
means there are between five or six "cake-outs" each year. Roasters have fewer flocks, and small
fryers have more flocks, but the volume of "cake-out" removed in a year is comparable. "Cake-
outs" will sometimes occur during periods when it is not possible to land apply the litter (e.g. in
the middle of the growing season or during the winter when field conditions may not be
conducive to land application). Consequently, it is usually necessary to store the dry litter after
removal until it can be land.applied.
Depending on the time of year it occurs, "whole house" clean-out may also require the
operator to store the dry manure until it can be land applied. If the manure is stored in open
stockpiles over long periods of time, usually greater than a few weeks, runoff from the stockpile
may contribute pollutants to surface water and/or ground water that is hydrologically connected
to surface water.
The majority of egg laying operations use dry manure handling, although there are
operations with liquid manure handling systems. Laying hens are kept in cages and manure
drops below the cages in both dry and liquid manure handling systems. Most of the dry manure
operations are constructed as high rise houses where the birds are kept on the second floor and
the manure drops to the first floor, which is sometimes referred to as the pit. Ventilation flows
through the house from the roof down over the birds and into the pit over the manure before it is
forced out through the sides of the house. The ventilation dries the manure as it piles up into
cones. Manure can usually be stored in high rise houses for up to a year before requiring
removal.
Problems can occur with dry manure storage in a high rise house when drinking water
systems are not properly designed or maintained. For example, improper design or maintenance
of the water system can result in excess water spilling into the pit below, which raises the
moisture content of the manure, resulting in the potential for spills and releases of manure from
the building.
Concerns with inadequate storage or improper design and maintenance contribute to
concerns over dry manure systems for laying hens. As with broiler operations, open stockpiles of
litter stored over long periods of time (e.g., greater than a few weeks) may contribute to pollutant
122
-------
discharge from contaminated runoff and leachate leaving the stockpile. Laying hens operations
may also use a liquid manure handling system. The system is similar to the dry manure system
except that the manure drops below the cages into a channel or shallow pit and water is used to
flush this manure to a lagoon.
The existing regulation already applies to laying hen and broiler operations with 100,000
birds when a continuous flow watering system is used, and to 30,000 birds when a liquid manure
handling system is used. In revising the threshold for poultry operations, EPA evaluated several
methods for equating poultry to the existing definition of an animal unit. EPA considered laying
hens, pullets, broilers, and roasters separately to reflect the differences in size, age, production,
feeding practices, housing, waste management, manure generation, and nutrient content of the
manure. Manure generation and pollutant parameters considered include: nitrogen, phosphorus,
BODS, volatile solids, and COD. Analysis of these parameters consistently results in a threshold
of 79,000 to 140,000 birds as being equivalent to 1,000 animal units. EPA also considered a
liveweight basis for defining poultry. The liveweight definition of animal unit as used by USDA
defines 455,000 broilers and pullets and 250,000 layers as being representative of 1,000 animal
units. EPA data indicates that using a liveweight basis at 1,000 AU would exclude virtually all
broiler operations from the regulation.
Consultations with industry indicated EPA should evaluate the different sizes (ages) and
purposes (eggs versus meat) of chickens separately. However, when evaluating broilers, roasters,
and other meat-type chickens, EPA concluded that a given number of birds capacity represented
the same net annual production of litter and nutrients. For example, a farm producing primarily
broilers would raise birds for 6- 8 weeks with a final weight of 3 to 5 pounds, a farm producing
roasters would raise birds for 9 -11 weeks with a final weight of 6 to 8 pounds, whereas a farm
producing game hens may only keep birds for 4-6 weeks and at a final weight of less than 2
pounds. The housing, production practices, waste management, and manure nutrients and
process wastes generated in each case is essentially the same. Layers are typically fed less than
broilers of equivalent size, and are generally maintained as a smaller chicken. However, a laying
hen is likely to be kept for a year of egg production. The layer is then sold or molted for several
weeks, followed by a second period of egg production. Pullets are housed until laying age of
approximately 18 to 22 weeks. In all cases manure nutrients and litter generated results in a
threshold of 80,000 to 130,000 birds as being the equivalent of 1,000 animal units.
Today's proposed NPDES and effluent guidelines requirements for poultry eliminate the
distinction between how manure is handled and the type of watering system that is used. EPA is
proposing this change because it believes there is a need to control poultry operations regardless
of the manure handling or watering system. EPA believes that improper storage as well as land
application rates which exceed agricultural use have contributed to water quality problems,
especially in areas with large concentrations of poultry production. Inclusion of poultry
operations in the proposed NPDES regulation is intended to be consistent with the proposed
effluent guidelines regulation, discussed in section Vffl of today's preamble. EPA is proposing
that 100,000 laying hens or broilers be considered the equivalent of 1,000 animal units.
123
-------
Consequently EPA proposes to establish the threshold under the two-tier alternative j
structure that defines which operations are CAFOs at 500 animal units as equivalent to 50,000 i;
birds. Facilities that are subject to designation are those with fewer than 50,000 birds. This >{
threshold would address approximately 10 percent of all chicken AFOs nationally and more than|l
70 percent of all manure generated by chickens. On a sector specific basis, this threshold would |!
address approximately 28 percent of all broiler operations (including all meat-type chickens)
while addressing more than 70 percent of manure generated by broiler operations. For layers
(including pullets) the threshold would address less than 5 percent of layer operations while '
addressing nearly 80 percent of manure generated by layer operations. EPA believes this
threshold is consistent with the threshold established for the other livestock sectors.
\
Under this two-tier structure, today's proposed changes exclude poultry operations with '
liquid manure handling systems if they have between 30,000 and 49,999 birds. EPA estimates
this to be few if any operations nationally and believes these are relatively small operations. EPA
does not believe these few operations pose a significant threat to water quality even in
aggregation. EPA also notes that the trend in laying hen operations (where liquid systems may
occur) has been to build new operations to house large numbers of animals (e.g., usually in
excess of 100,000 birds per house), which frequently employ dry manure handling systems. ;
Given the limited number of existing operations with liquid manure handling systems and the :|
continuing trend toward larger operations, EPA believes the proposed uniform threshold of
50,000 birds is appropriate.
Under the proposed alternative three-tier structure, any operation with more than 100,000 jj
chickens is automatically defined as a CAFO. This upper tier reflects 4 percent of all chicken :'
operations. Additionally those poultry operations with 30,000 to 100,000 chickens are defined as jj
CAFOs if they meet the unacceptable conditions presented in section VH.C. This middle tier |i
would address an additional 10 percent of poultry facilities. By sector this middle tier would
potentially cover an additional 45 percent of broiler manure and 22 percent layer manure. In '
aggregate this scenario would address 14 percent of chicken operations and 86 percent of
manure. See VI.A.2 for the additional information regarding scope of the two proposed
regulatory alternatives.
•j
EPA acknowledges that this threshold pulls in a substantial number of chicken operations ij
under the definition of a CAFO. Geographic regions with high density of poultry production
have experienced water quality problems related to an overabundance of nutrients, to which the
poultry industry has contributed. For example northwestern Arkansas and the Delmarva
peninsula in the Mid-Atlantic tend to have smaller poultry farms as compared to other regions. !j
The chicken and turkey sectors also have higher percentages of operations with insufficient or no il
land under the control of the AFO on which to apply manure. Thus EPA believes this threshold jj
is appropriate to adequately control the potential for discharges from poultry CAFOs.
!(
g. How Would Immature Animals in the Swine and Dairy Sectors \''
be Counted?
124
-------
EPA is proposing to include immature swine and heifer operations under the CAFO
definition. See proposed §122.23(a)(3)(i)(C) and (E). In the proposed two-tier structure, EPA
would establish the 500 AU threshold equivalent for defining which operations are CAFOs as
operations with 5000 or more swine weighing 55 pounds or less, and those with fewer than 5000
swine under 55 pounds are AFOs which may be designated as CAFOs. Immature dairy cows, or
heifers, would be counted equivalent to beef cattle; that is, the 500 AU threshold equivalent for
defining CAFOs would be operations with 500 or more heifers, and those with fewer than 500
could be designated as CAFOs.
In the proposed three-tier structure, the 300 AU and 1,000 AU equivalents, respectively
for each animal type would be: 3,000 head and 10,000 head for immature swine; and 300 head
and 1,000 head for heifers.
Only swine over 55 pounds and mature dairy cows are specifically included in the current
definition (although manure and wastewater generated by immature animals confined at the same
operation with mature animals are subject to the existing requirements). Immature animals were
not a concern in the past because they were generally part of operations that included mature
animals and, therefore, their manure was included in the permit requirements of the CAFO.
However, in recent years, these livestock industries have become increasingly specialized with
the emergence of increasing numbers of large stand-alone nurseries. Further, manure from
immature animals tends to have higher concentrations of pathogens and hormones and thus poses
greater risks to the environment and human health.
Since the 1970s, the animal feeding industry has become more specialized, especially at.
larger operations. When the CAFO regulations were issued, it was typical to house swine from
birth to slaughter together at the same operation known as a farrow to finish operation. Although
more than half of swine production continues to occur at farrow-to-finish operations, today it is
common for swine to be raised in phased production systems. As described in section VI,
specialized operations that only house sows and piglets until weaned represent the first phase,
called farrowing. The weaned piglets are transferred to a nursery, either at a separate building or
at a location remote from the farrowing operation for biosecurity concerns. The nursery houses
the piglets until they reach about 55 to 60 pounds, at which time they are transferred to another
site, the grow-finish facility.
The proposed thresholds for swine are established on the basis of the average phosphorus
excreted from immature swine in comparison to the average phosphorus excreted from swine
over 55 pounds. A similar threshold would be obtained when evaluating live-weight manure
generation, nitrogen, COD and volatile solids (VS). See the Technical Development Document
for more details.
Dairies often remove immature heifers to a separate location until they reach maturity.
These off-site operations may confine the heifers in a manner that is very similar to a beef feedlot
125
-------
or the heifers may be placed on pasture. The existing CAFO definition does not address
operations that only confine immature heifers. EPA acknowledges that dairies may keep heifers
and calves and a few bulls on site. EPA data indicates some of these animals are in confinement,
some are pastured, and some moved back and forth between confinement, open Jots, and pasture.
The current CAFO definition considers only the mature milking cows. This has raised some
concerns that many dairies with significant numbers of immature animals could be excluded
from the regulatory definition even though they may generate as much manure as a dairy with a
milking herd large enough to be a CAFO. The proportion of immature animals maintained at
dairies can vary significantly with a high being a one to one ratio. Industry-wide there are 0.6
immature animals for every milking cow.
EPA considered options for dairies that would take into account all animals maintained in
confinement, including calves, bulls and heifers when determining whether a dairy is a CAFO or
not. EPA examined two approaches for this option, one that would count all animals equally and
another based on the proportion of heifers, calves, and bulls likely to be present at the dairy.
EPA is not proposing to adopt either of these options.
The milking herd is usually a constant at a dairy, but the proportion of immature animals
can vary substantially among dairies and even at a given dairy over time. Some operations
maintain their immature animals on-site, but keep them on pasture most of the time. Some
operations keep immature animals on-site, and maintain them in confinement all or most of the
time. Some operations may also have one or two bulls on-site, which can also be kept either in
confinement or on pasture, while many keep none on-site. Some operations do not keep their
immature animals on-site at all, instead they place them offsite, usually in a stand-alone heifer
operation. Because of the variety of practices at dairies, it becomes very difficult to estimate how
many operations have immature animals on-site in confinement. EPA believes that basing the
applicability on the numbers of immature animals and bulls would make implementing the
regulation more difficult for the permit authority and the CAFO operator. However, EPA
requests comment on this as a possible approach.
EPA also requests comments on using only mature milking cows as the means for
determining applicability of the size thresholds. Under the two-tier structure, EPA's proposed
requirements for dairies would apply to 3 percent of the dairies nationally and will control 37
percent of the CAFO manure generated by all dairies nationally. This is proportionally lower
than other livestock sectors, largely due to the dominance of very small farms in the dairy
industry. There are similar trends in the dairy industry as in the other livestock sectors,
indicating that the number of large operations is increasing while the number of small farms
continues to decline. Under the three-tier structure, EPA's proposed requirements would apply
to 6 percent of the dairies nationally, and will control 43 percent of all manure generated at dairy
CAFOs annually. See Section VI.A.I.
126
-------
Inclusion in the proposed NPDES definition of immature swine and heifers is intended to
be consistent with the proposed effluent guidelines regulation, described in section VIE of
today's preamble.
h. What Other Animal Sectors Does Today's Proposal Affect?
EPA is proposing to lower the threshold for defining which AFOs are CAFOs to the
equivalent of 500 AU in the horse, sheep, lamb and duck sectors under the two-tier structure.
See proposed §122.23(a)(3)(i). This action is being taken to be consistent with the NPDES
proposed revisions for beef, dairy, swine and poultry. Under the three-tier structure, the existing
thresholds would remain as they are under the existing regulation.
The animal types covered by the NPDES program are defined in the current regulation
(Part 122 Appendix B). The beef, dairy, swine, poultry and veal sectors are being addressed by
both today's effluent guidelines proposal and today's NPDES proposal. However, today's
proposal would not revise the effluent guidelines for any animal sector other than beef, dairy,
swine, poultry and veal. Therefore, under today's proposal, any facility in the horse, sheep, lamb
and duck sectors with 500 to 1,000 AU that is defined as a CAFO, and any facility in any sector
below 500 AU that is designated as a CAFO, will not be subject to the effluent guidelines, but
will have NPDES permits developed on a best professional judgment (BPJ) basis.
Table 7-6 identifies those meeting the proposed 500 AU threshold in the two-tier
structure. Table 7-7 identifies the numbers of animals meeting the 300 AU, 300 AU to 1,000
AU, and the 1,000 AU thresholds in the three-tier structure.
A facility confining any other animal type that is not explicitly mentioned in the NPDES
and effluent guidelines regulations is still subject to NPDES permitting requirements if it meets
the definition of an AFO and if the permit authority designates it as a CAFO on the basis that it is
a significant contributor of pollution to waters of the U.S. Refer to Vn.C.4 in today's proposal
for a discussion of designation for AFOs. -
The economic analysis for the NPDES rule does not cover animal types other than beef,
dairy, swine and poultry. EPA chose to analyze those animal types that produce the greatest
amount of manure and wastewater in the aggregate while in confinement. EPA believes that
most horses, sheep, and lambs operations are not confined and therefore will not be subject to
permitting, thus, the Agency expects the impacts in these sectors to be minimal. However, most
duck operations probably are confined. EPA requests comments on the effect of this proposal on
the horse, sheep, lamb and duck sectors.
i. How Does EPA Propose to Control Manure at Operations that
Cease to be CAFOs?
127
U.S. EPA Headquarters Library
Mail code 3201
1200 Pennsylvania Avenue NW
Washington DC 20460
-------
EPA is proposing to require operators of permitted CAFOs that cease operations to retain
NPDES permits until the facilities are properly closed, i.e., no longer have the potential to
discharge. See §122.23(i)(3). Similarly, today's proposal would clarify that, if a facility ceases
to be a an active CAFO (e.g., it decreases the number of animals below the threshold that defined
it as a CAFO, or ceases to operate), the CAFO must remain permitted until all wastes at the
facility that were generated while the facility was a CAFO no longer have the potential to reach .
waters of the United States.
These requirements mean that if a permit is about to expire and the manure storage
facility has not yet been properly closed, the facility would be required to apply for a permit
renewal to because the facility has the potential to discharge to waters of the U.S. until it is
properly closed. Proper facility closure includes removal of water from lagoons and stockpiles,
and proper disposal of wastes, which may include land application of manure and wastewater in
accordance with NPDES permit requirements, to prevent or minimize discharge of pollutants to
receiving waters.
The existing regulations do not explicitly address whether a permit should be allowed to
expire when an owner or operator ceases operations. However, the public has expressed
concerns about facilities that go out of business leaving behind lagoons, stockpiles and other
contaminants unattended and unmanaged. Moreover, there are a number of documented
instances of spills and breaches at CAFOs that have ceased operations, leaving behind
environmental problems that became a public burden to resolve (see, for example, report of the
North Carolina DENR, 1999).
EPA considered five options for NPDES permit requirements to ensure that CAFO
operators provide assurances for proper closure of their facilities (especially manure management
systems such as lagoons) in the event of financial failure or other business curtailment. EPA
examined the costs to the industry and the complexity of administering such a program for all
options. The analyses of these options are detailed in the EPA NPDES CAFO Rulemaking
Support Document, September 26, 2000.
Closure Option. 1 would require a closure plan. The CAFO operator would be required to
have a written closure plan detailing how the facility plans to dispose of animal waste from
manure management facilities. The plan would be submitted with the permit application and be
approved with the permit application. The plan would identify the steps necessary to perform
final closure of the facility, including at least:
• A description of how each major component of the manure management facility
(e.g., lagoons, settlement basins, storage sheds) will be closed;
• An estimate of the maximum inventory of animal waste ever on-site, accompanied
with a description of how the waste will be removed, transported, land applied or
otherwise disposed; and
128
-------
• A closure schedule for each component of the facility along with a description of
other activities necessary during closure (e.g., control run-off/run-on, ground
water monitoring if necessary).
EPA also investigated several options that would provide financial assurances in the
event the CAFO went out of business, such as contribution to a sinking fund, commercial
insurance, surety bond, and other common commercial mechanisms. Under Closure Option 2,
permittees would have to contribute to a sinking fund to cover closure costs of facilities which
abandon their manure management systems. The contribution could be on a per-head basis, and
could be levied on the permitting cycle (every five years), or annually. The sinking fund would
be available to cleanup any abandoned facility (including those which are not permitted). Data
on lagoon closures in North Carolina (Harrison, 1999) indicate that the average cost of lagoon
closure for which data are available is approximately $42,000. Assuming a levy of $0.10 per
animal, the sinking fund would cover the cost of approximately 50 abandonments nationally per
year, not accounting for any administrative costs associated with operating the funding program.
Closure Option 3 would require permittees to provide financial assurance by one of
several generally accepted mechanisms. Financial assurance options could include the following
common mechanisms: a) Commercial insurance; b) Financial test; c) Guarantee; d) Certificate of
Deposit or designated savings account; e) Letter of credit; or f) Surety bond. The actual cost to
the permittee would depend upon which financial assurance option was available and
implemented. The financial test would likely be the least expensive for some operations,
entailing documentation that the net worth of the CAFO operator is sufficient such that it is
unlikely that the facility will be abandoned for financial reasons. The guarantee would also be
inexpensive, consisting of a legal guarantee from a parent corporation or other party (integrator)
that has sufficient levels of net worth. The surety bond would likely be the most expensive,
typically requiring an annual premium of 0.5 to 3.0 percent of the value of the bond; this
mechanism would likely be a last resort for facilities that could not meet the requirement of the
other mechanisms.
Option 4 is a combination of Options 2 and 3. Permittees would have to provide financial
assurance by one of several generally accepted mechanisms, or by participating in a sinking fund.
CAFO operators could meet closure requirements through the most economical means available
for their operation.
Option 5, the preferred option in today's proposal, simply requires CAFOs to maintain
NPDES permit coverage until proper closure. Under this option, facilities would be required to
maintain their NPDES permits, even upon curtailment of the animal feeding operation, for as
long as the facility has the potential to discharge. The costs for this option would be those costs
associated with maintaining a permit.
Today, EPA is proposing to require NPDES permits to include a condition that imposes a
duty to reapply for a permit unless an owner or operator has closed the facility such that there is
129
-------
no potential for discharges. The NPDES program offers legal and financial sanctions that are '
sufficient, in EPA's view, to ensure that operators comply with this requirement. EPA believes '!
that this option would accomplish its objectives and would be generally easy and effective to ji
implement. However, there are concerns that it would not be effective for abandoned facilities j1
because, unlike some of the other options, no financial assurance mechanism would be in place, i
EPA is requesting comment on the practical means of addressing the problem of unmanaged i
waste from closed or abandoned CAFOs, and what authorities EPA could use under the CWA or |
other statutes to address this problem. !
See Section VHE.5.C of today's proposal, which further discusses the requirement for
permit authorities to include facility closure in NPDES permit special conditions.
While EPA is today proposing to only require ongoing permit coverage of the former
CAFO, permit authorities are encouraged to consider including other conditions such as those
discussed above.
j. Applicability of the Regulations to Operations That Have a
. Direct Hydrologic Connection to Ground Water
Because of its relevance to today's proposal, EPA is restating that the Agency interprets
the Clean Water Act to apply to discharges of pollutants from a point source via ground water
that has a direct hydrologic connection to surface water. See proposed §122.23(e). Specifically,
the Agency is proposing that all CAFOs, including those that discharge or have the potential to
discharge CAFO wastes to navigable waters via ground water with a direct hydrologic
connection must apply for an NPDES permit. In addition, the proposed effluent guidelines will
require some CAFOs to achieve zero discharge from their production areas including via ground
water which has a direct hydrologic connection to surface water. Further, for CAFOs not subject
to such an effluent guideline, permit writers would in some circumstances be required to
establish special conditions to address such discharges. In all cases, a permittee would have the
opportunity to provide a hydrologist's report to rebut the presumption that there is likely to be a
discharge from the production area to surface waters via ground water with a direct hydrologic
connection.
For CAFOs that would be subject to an effluent guideline that includes requirements for
zero discharge from the production area to surface water via ground water (all existing and new
beef and dairy operations, and new swine and poultry operations, see proposed §412.33(a),
412.35(a), and 412.45(a)), the proposed regulations would presume that there is a direct
hydrologic connection to surface water. The permittee would be required to either achieve zero
discharge from the production area via ground water and perform the required ground water
monitoring or provide a hydrologist's statement that there is no direct connection of ground water
to surface water at the facility. See 40 CFR 412.33(a)(3), 412.35(a)(3), and 412.45(a)(3).
130
-------
For CAFOs that would be subject to the proposed effluent guideline at 412.43 (existing
swine, poultry and veal facilities) which does not include ground water requirements, if the
permit writer determines that the facility is in an area with topographical characteristics that
indicate the presence of ground water that is likely to have a direct hydrologic connection to
surface water and if the permit writer determines that pollutants may be discharged at a level
which may cause or contribute to an excursion above any State water quality standard, the permit
writer would be required to include special conditions to address potential discharges via ground
water. EPA is proposing that the permittee must either comply with those conditions or provide
a hydrologist's statement that the facility does not have a direct hydrologic connection to surface
water. 40 CFR 122.23(j)(6) and (k)(5).
If a CAFO is not subject to the Part 412 Subparts C or D effluent guideline (e.g., because
it has been designated as a CAFO and is below the threshold for applicability of those subparts;
or is a CAFO in a sector other than beef, dairy, swine, poultry or veal and thus is subject to
subparts A or B), then the permit writer would be required to decide on a case-by-case basis
whether effluent limitations (technology-based and water quality-based, as necessary) should be
established to address potential discharges to surface water via hydrologically connected ground
water. Again, the permittee could avoid or satisfy such requirements by providing a
hydrologist's statement that there is no direct hydrologic connection 40 CFR 122.23(k)(5).
Legal Basis
The Clean Water Act does not directly answer the question of whether a discharge to
surface waters via hydrologically connected ground water is unlawful. However, given the broad
construction of the terms of the CWA by the federal courts and the goals and purposes of the Act,
the Agency believes that while Congress has not spoken directly to the issue, the Act is best
interpreted to cover such discharges. The statutory terms certainly do not prohibit the Agency's
determination that a discharge to surface waters via hydrologically-connected ground waters can
be governed by the Act, while the terms do clearly indicate Congress' broad concern for the
integrity of the Nation's waters. Section 301(a) of the CWA provides that "the discharge of any
pollutant [from a point source] by any person shall be unlawful" without an NPDES permit. The
term "discharge of a pollutant" is defined as "any addition of a pollutant to navigable waters from
any point source." 33 U.S.C. § 1362(12). In turn, "navigable waters" are defined as "the waters
of the United States, including the territorial seas." 33 U.S.C. § 1362(7). None of these terms
specifically includes or excludes regulation of a discharge to surface waters via hydrologically
connected ground waters. Thus, EPA interprets the relevant terms and definitions in the Clean
Water Act to subject the addition of manure to nearby surface waters from a CAFO via
hydrologically connected ground waters to regulation.
Some sections of the CWA do directly apply to ground water. Section 102 of the CWA,
for example, requires the Administrator to "develop comprehensive programs for preventing,
reducing, or eliminating the pollution of the navigable waters and ground waters and improving
the sanitary conditions of surface and underground waters." 33 U.S.C. § 1252. Such references,
131
-------
however, are not significant to the analysis of whether Congress has spoken directly on the issue
of regulating discharges via ground water which directly affect surface waters. Specific
references to ground water in other sections of the Act may shed light on the question of whether
Congress intended the NPDES program to regulate ground water quality. That question,
however, is not the same question as whether Congress intended to protect surface water from
discharges which occur via ground water. Thus, the language of the CWA is ambiguous with
respect to the specific question, but does not bar such regulation. Moreover, the Supreme Court
has recognized Congress' intent to protect aquatic ecosystems through the broad federal authority
to control pollution embodied in the Federal Water Pollution Control Act Amendments of 1972.
Section 101 of the Act clearly states the purpose of the Act "to restore and maintain the chemical,
physical, and biological integrity of the Nations' waters." 33 U.S.C. § 1251(a)(l). The Supreme
Court found that "[t]his objective incorporated a broad, systemic view of the goal of maintaining
and improving water quality: as the House Report on the legislation put it, 'the word "integrity"...
refers to a condition in which the natural structure and function of aquatic ecosystems [are]
maintained." United States v. Riverside Bawiew Homes. 474 U.S. 121,132(1985). An
interpretation of the CWA which excludes regulation of point source discharges to the waters of
the U.S. which occur via ground water would, therefore, be inconsistent with the overall
Congressional goals expressed in the statute.
Federal courts have construed the terms of the CWA broadly (Sierra Club v. Colorado
Refining Co.. 838 F. Supp. 1428, 1431 (D.Colo. 1993) (citing Ouivera Mining Co. v. EPA. 765
F.2d 126,129 (10th Cir. 1985)), but have found the language ambiguous with regard to ground
water and generally examine the legislative history of the Act. See e.g.. Exxon v. Train. 554 F.2d
1310,1326-1329 (reviewing legislative history). However, a review of the legislative history
also is inconclusive. Thus, courts addressing the issue have reached conflicting conclusions.
Since the language of the CWA itself does not directly address the issue of discharges to
ground water which affect surface water, it is proper to examine the statute's legislative history.
Faced with the problem of defining the bounds of its regulatory authority, "an agency may
appropriately look to the legislative history and underlying policies of its statutory grants of
authority." Riverside Bawiew Homes. 474 U.S. at 132. However, the legislative history also
does not address this specific issue. See Colorado Refining Co.. 838 F. Supp. at 1434 n.4 (noting
legislative history inconclusive).
In the House, Representative Les Aspin proposed an amendment with explicit ground
water protections by adding to the definition of "discharge of a pollutant" the phrase "any
pollutant to ground waters from any point source." Legislative History of the Water Pollution
Control Act Amendments of 1972. 93d Cong., 1st. Sess. at 589 (1972) (hereinafter "Legislative
History"). While the Aspin amendment was defeated, that rejection does not necessarily signal
an explicit decision by Congress to exclude even ground water per se from the scope of the
permit program. Commentators have suggested that provisions in the amendment which would
have deleted exemptions for oil and gas well injections were the more likely cause of the
amendment's defeat. Mary Christina Wood, Regulating Discharges into Groundwater: The
132
-------
Crucial Link in Pollution Control Under the Clean Water Act. 12 Harv. EnvtI. L. Rev. 569,614
(1988); see also Legislative History at 590-597 (during debate on the amendment, members in
support and members in opposition focused on the repeal of the exemption for oil and gas
injection wells).
At the least, there is no evidence that in rejecting the explicit extension of the NPDES
program to all ground water Congress intended to create a ground water loophole through which
the discharges of pollutants could flow, unregulated, to surface water. Instead, Congress
expressed an understanding of the hydrologic cycle and an intent to place liability on those
responsible for discharges which entered the "navigable waters." The Senate Report stated that
"[wjater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled
at the source." Legislative History at 1495. The Agency has determined that discharges via
hydrologically connected ground water impact surface waters and, therefore, should be controlled
at the source.
Most of the courts which have addressed the question of whether the CWA subjects
discharges to surface waters via hydrologically connected ground waters to regulation have found
the statute ambiguous on this specific question. They have then looked to the legislative history
for guidance. McClellan Ecological Seepage Situation v. Weinberger. 707 F. Supp. 1182,1194
(ED. Cal 1988), vacated (on other grounds). 47 F.3d 325 (9th Cir. 1995), cert, denied. 116 S.Ct.
51 (1995); Kellev v. United States. 618 F.Supp. 1103,1105-06 (D.CMich. 1985). Even those
courts which have not found jurisdiction have acknowledged that it is a close question. Village
of Oconomowoc Lake v. Davton Hudson Corp.. 24 F.3d 962,966 (7th Cir. 1994), cert, denied.
513 U.S. 930 (1994). As one court noted, "the inclusion of groundwater with a hydrological
connection to surface waters has troubled courts and generated a torrent of conflicting
commentary." Potter v. ASARCO. Civ. No. S:56CV555, slip op. at 19 (D.Neb. Mar. 3,1998).
The fact that courts have reached differing conclusions when examining whether the CWA
regulates such discharges is itself evidence that the statute is ambiguous.
EPA does not argue that the CWA directly regulates ground water quality. In the
Agency's view, however, the CWA does regulate discharges to surface water which occur via
ground water because of a direct hydrologic connection between the contaminated ground water
and nearby surface water. EPA repeatedly has taken the position that the CWA can regulate
discharges to surface water via ground water that is hydrologically connected to surface waters.
For example, in issuing the general NPDES permit for concentrated animal feeding
operations ("CAFOs") in Idaho, EPA stated:
"EPA agrees that groundwater contamination is a concern around CAFO facilities.
However, the Clean Water Act does not give EPA the authority to regulate groundwater quality
through NPDES permits.
133
-------
'The only situation in which groundwater may be affected by the NPDES program is
when a discharge of pollutants to surface waters can be proven to be via groundwater."
62 Fed. Reg. 20177, 20178 (April 25, 1997). In response to a comment that the CAFO general
permit should not cover ground water, the Agency stated:
"EPA agrees that the Clean Water Act does not give EPA the authority to regulate
groundwater quality through NPDES permits. However, the permit requirements ... are not
intended to regulate groundwater. Rather, they are intended to protect surface waters which are
contaminated via a groundwater (subsurface) connection."
EPA has made consistent statements on at least five other occasions, In the Preamble to
the final NPDES Permit Application Regulations for Storm Water Discharges, the Agency stated:
"this rulemaking only addresses discharges to waters of the United States, consequently
discharges to ground waters are not covered by this rulemaking (unless there is a hydrological
connection between the ground water and a nearby surface water body") 55 Fed. Reg. 47990,
47997 (Nov. 16, 1990)(emphasis added)). See algo. 60 Fed. Reg. 44489, 44493 (August 28,
1995) (in promulgating proposed draft CAFO permit, EPA stated: "P]ischarges that enter
surface waters indirectly through groundwater are prohibited"); EPA, "Guide Manual On NPDES
Regulations For Concentrated Animal Feeding Operations" at 3 (December 1995) ("Many
discharges of pollutants from a point source to surface water through groundwater (that j'
constitutes a direct hydrologic connection) also may be a point source discharge to waters of the ;|
United States."). '\
In promulgating regulations authorizing the development of water quality standards under ;!
the CWA by Indian Tribes for their Reservations, EPA stated:
Notwithstanding the strong language in the legislative history of the Clean Water Act to I1
the effect that the Act does not grant EPA authority to regulate pollution of ground waters, EPA
and most courts addressing the issue have recognized that ... the Act requires NPDES permits
for discharges to groundwater where there is a direct hydrological connection between
groundwater and surface waters. In these situations, the affected ground waters are not
considered "waters of the United States" but discharges to them are regulated because such j;
discharges are effectively discharges to the directly connected surface waters.
Amendments to the Water Quality Standards Regulations that Pertain to Standards on Indian [!
Reservations, Final Rule, 56 Fed. Reg. 64,876, 64892 (Dec. 12, 1991)(emphasis added). i
:i
'i
While some courts have not been persuaded that the Agency's pronouncements on the
regulation of discharges to surface water via ground water represent a consistent Agency (I
position, others have found EPA's position to be clear. The Hecla Mining court noted that 'The
court in Oconomowoc Lake dismissed the EPA statements as a 'collateral reference to a
problem.' It appears to this court, however, that the preamble explains EPA's policy to require
NPDES permits for discharges which may enter surface water via groundwater, as well as those
134
-------
that enter directly." Washington Wilderness Coalition v. Hecla Mining Co.. 870 F. Supp. 983,
990-91 (E.D, Wash. 1994), dismissed on other grounds, (lack of standing) per unpublished
decision (E.D. Wash. May 7,1997) (citing Preamble, NPDES Permit Regulations for Storm
Water Discharges, 55 Fed. Reg. 47990,47997 (Nov. 16,1990)).
As a legal and factual matter, EPA has made a determination that, in general, collected or
channeled pollutants conveyed to surface waters via ground water can constitute a discharge
subject to the Clean Water Act. The determination of whether a particular discharge to surface
waters via ground water which has a direct hydrologic connection is a discharge which is
prohibited without an NPDES permit is a factual inquiry, like all point source determinations.
The time and distance by which a point source discharge is connected to surface waters via
hydrologically connected surface waters will be affected by many site specific factors, such as
geology, flow, and slope. Therefore, EPA is not proposing to establish any specific criteria
beyond confining the scope of the regulation to discharges to surface water via a "direct"
hydrologic connection. Thus, EPA is proposing to make clear that a general hydrologic
connection between all waters is not sufficient to subject the owner or operator of a point source
to liability under the Clean Water Act. Instead, consistent with the case law, there must be
information indicating that there is a "direct" hydrologic connection to the surface water at issue.
Hecla Mining. 870 F.Supp.-at 990 ("Plaintiffs must still demonstrate that pollutants from a point
source affect surface waters of the United States. It is not sufficient to allege groundwater
pollution, and then to assert a general hydrological connection-between all waters. Rather,
pollutants must be traced from their source to surface waters, in order to come within the
purview of the CWA.")
The reasonableness of the Agency's interpretation is supported by the fact that the
majority of courts have determined that CWA jurisdiction may extend to surface water
discharges via hydrologic connections.1 As the court in Potter v. ASARCO, Inc. declared, "in
See e.g.. Williams Pipe Line Co. v. Bayer Corp.. 964 F.Supp. 1300,1319-20 (S.D.Iowa 1997) ("Because
the CWA's goal is to protect the quality of surface waters, the NPDES permit system regulates any pollutants that
enter such waters either directly or through groundwater."); Washington Wilderness Coalition v. Hecla Mining Co..
870 F. Supp. 983,989-90 (E.D- Wash. 1994), dismissed on other grounds, (lack of standing) per unpublished
decision (E.D. Wash. May 7,1997) (finding CWA jurisdiction where pollution discharged from manmade ponds via
seeps into soil and ground water and, thereafter, surface waters; and holding that, although CWA does not regulate
isolated ground water, CWA does regulate pollutants entering navigable waters via tributary ground waters);
Friends of the Coast Fork v. Co. of Lane. QR. Civ. No. 95-6105-TC (D. OR. January 31,1997) (reaching same
conclusion as court in Washington Wilderness Coalition v. Hecla Mining Co.. and finding hydrologicaHy-connected
ground waters are covered by the CWA); McClellan Ecological Seepage Situation. 763 F. Supp. 431,438 (E.D.
Cal. 1989), vacated (on other grounds). 47 F.3d 325 (9th Or. 1995), cert, denied. 116 S.Ct. 51 (1995) (allowing
plaintiff to attempt to prove at trial that pollutants discharged to ground water are subsequently discharged to
surface water); and McClellan Ecological Seepage Situation v. Weinberger. 707 F. Supp. 1182,1195-96 (E.D. Cal.
1988), vacated (on other grounds'). 47 F.3d 325 (9th Or. 1995), cert, denied. 116 S.Ct. 51 (1995) (although NPDES
permit not required for discharges to isolated ground water, Congress* intent to protect surface water may require
NPDES permits for discharges to ground water with direct hydrological connection to surface waters); Friends of
Same Fe Co. v. LAC Minerals. Inc.. 892 F. Supp. 1333,1357-58 (D.N.M. 1995) (although CWA does not cover
135
-------
light of judicial precedent, Congress' remedial purpose, the absence of any specific legislative
intent pertaining to hydrologically connected ground water and the informal pronouncements of
EPA, any pollutants that enter navigable waters, whether directly or indirectly through a specific
hydrological connection, are subject to regulation by the CWA." Slip op. at 26.
The decisions which did not find authority to regulate such discharges under the CWA
may, for the most part, be distinguished. In^Village of Oconomowoc Lake v. Davton Hudson
Corp.. the Seventh Circuit held that the CWA does not regulate ground water per se. 24 F.3d 962
(7th Cir. 1994), cert, denied, 513 U.S. 930 (1994). In Oconomowoc. however, the plaintiff only
alluded to a "possibility" of a hydrologic connection. 24 F.3d at 965. In Kellev v. United States.
the district court held that enforcement authority under the CWA did not include ground water
contamination. 618 F. Supp. 1103 (W.D. Mich. 1985). The decision is not well-reasoned, as the
Keltev court merely states — without further elaboration — that the opinion in Exxon v. Train.
which specifically "expressed no opinion" on whether the CWA regulated hydrologically
connected ground waters, and the legislative history "demonstrate that Congress did not intend
the Clean Water Act to extend federal regulatory enforcement authority over groundwater
contamination." Kellev. 618 F. Supp. at 1107 (emphasis added). In Umatilla. the court
concluded that the NPDES program did not apply to even hydrologically connected ground
water. 962 F.Supp. at 1318. The court reviewed the legislative history and existing precedent on
the issue, but failed to distinguish between the regulation of ground water per se and the
regulation of discharges into waters of the United States which happen to occur via ground water.
Moreover, the court failed to give deference to the Agency's interpretation of the CWA. Id. at
1319 (finding that the Agency interpretations cited by the plaintiffs failed to articulate clear
regulatory boundaries and were not sufficiently "comprehensive, definitive or formal" to deserve
deference, but acknowledging that "neither the statute nor the legislative history absolutely
prohibits an interpretation that the NPDES requirement applies to discharges of pollutants to
hydrologically-connected groundwater"). Today's proposal should provide the type of formal
Agency interpretation that court sought. Two other decisions have simply adopted the reasoning
of the Umatilla court. United States v. ConAgra. Inc.. Case No. CV 96-0134-S-LMB (DJdaho
discharges to isolated, nontributary groundwater, Ouivira and decisions within Tenth Circuit demonstrating
expansive construction of CWA's jurisdictional reach foreclose arguments that CWA does not regulate discharges
to hydrologically-connected groundwater); Sierra Club v. Colorado Refining Co.. 838 F. Supp. at 1434 ("navigable
waters" encompasses tributary groundwater and, therefore, allegations that defendant violated CWA by discharging
pollutants into soils and groundwater, and that pollutants infiltrated creek via groundwater and seeps in creek bank,
stated cause of action); and Ouivira Mining Co. v. United States EPA. 765 F.2d 126,130 (10th Cir. 1985), cert.
denied. 474 U.S. 1055 (1986) (affirming EPA's determination that CWA permit required for discharges of
pollutants into surface arrpyos that, during storms, channeled rainwater both directly to streams and into
underground aquifers that connected with such streams); Martin v. Kansas Board of Regents. 1991 U.S.Dist. LEXIS
2779 (D.Kan. 1991) ("Groundwater... that is naturally connected to surface waters constitute 'navigable waters'
under the Act."); see also Inland Steel Co. v. EPA. 901 F.2d 1419,1422-23 (7th Cir. 1990) ("the legal concept of
navigable waters might include ground waters connected to surface waters — though whether it does or not is an
unresolved question— [A] well that ended in such connected ground waters might be within the scope of the
[CWA]").
136
-------
1997); Allegheny Environmental Action Coalition v. Westinehouse. 1998 U.S. Dist. LEXIS
1838 (W.D.Pa. 1998).
The Agency has utilized its expertise in environmental science and policy to determine
the proper scope of the CWA. The determination of whether the CWA regulates discharges to
ground waters connected to surface waters, like the determination of wetlands jurisdiction,
"ultimately involves an ecological judgment about the relationship between surface waters and
ground waters, it should be left in the first instance to the discretion of the EPA and the Corps."
Town of Norfolk v. U.S. Armv Corps of Engineers. 968 R2d 1438,1451 (1st Cir. 1992) (citing
United States v. Riverside Bawiew Homes. Inc.. 474 U.S. at 134). The Supreme Court, too, has
acknowledged the difficulty of determining precisely where Clean Water Act jurisdiction lies and
has held that an agency's scientific judgment can support a legal jurisdictional judgment. United
States v. Riverside Bawiew Homes. Inc.. 474 U.S. 121,134 (1985) ("In view of the breadth of
fedeial regulatory authority contemplated by the [Clean Water] Act itself and the inherent
difficulties of defining precise bounds to regulable waters, the Corps' ecological judgment about
the relationship between waters and their adjacent wetlands provides an adequate basis for a legal
judgment that adjacent wetlands.may be defined as waters under the Act.").
The Agency has made clear the rationale for its construction: "the Act requires NPDES
permits for discharges to groundwater where there is a direct hydrological connection between
groundwater and surface waters. In these situations, the affected ground waters are not
considered 'waters of the United States' but discharges to them are regulated because such
discharges are effectively discharges to the directly connected surface waters." Amendments to
the Water Quality Standards Regulations that Pertain to Standards on Indian Reservations, Final
Rule, 56 Fed. Reg. 64,876,64892 (Dec. 12,1991)(emphasis added). The Agency has taken this
position because ground water and surface water are highly interdependent components of the
hydrologic cycle. The hydrologic cycle refers to "the circulation of water among soil, ground
water, surface water, and the atmosphere." U.S. Environmental Protection Agency, "A Review
of Methods for Assessing Nonpoint Source Contaminated Ground-Water Discharge to Surface
Water" at 3 (April 1991). Thus, a hydrologic connection has been defined as "the interflow and
exchange between surface impoundments and surface water through an underground corridor or
groundwater." NPDES General Permit and Reporting Requirements for Discharges from
Concentrated Animal Feeding Operations, EPA Region 6 Public Notice of Final Permitting
Decision, 58 Fed. Reg. 7610, 7635-36 (Feb. 8,1993). The determination of whether a discharge
to ground water in a specific case constitutes an illegal discharge to waters of the U.S. if
unpermitted is a fact specific one. The general jurisdictional determination by EPA that such
discharges can be subject to regulation under the CWA is a determination that involves an
ecological judgment about the relationship between surface waters and ground waters.
Finally, the Supreme Court has explicitly acknowledged that resolution of ambiguities in
agency-administered statutes involves policymaking: "As Chevron itself illustrates the resolution
of ambiguity in a statutory text is often more a question of policy than of law... .When
Congress, through express delegation or the introduction of an interpretive gap in the statutory
137
-------
structure, has delegated policymaking to an administrative agency, the extent of judicial review
of the agency's policy determinations is limited." Paulv v. Bethenergv Mines. Inc... 116 S.Ct.
2524,2534 (1991). Congress established a goal for the CWA "to restore and maintain the
chemical, physical and biological integrity of the nation's waters and to eliminate the discharge
of pollutants into the navigable waters." 33 U.S.C. §1251(a)(l). Congress also established some
parameters for reaching that goal, but left gaps in the statutory structure. One of those gaps is the;
issue of discharges of pollutants from point sources which harm navigable waters but which ;:
happen to occur via ground water. The Agency has chosen to fill that gap by construing the
statute to regulate such discharges as point source discharges. Given the Agency's knowledge of
the hydrologic cycle and aquatic ecosystems, the Agency has determined that when it is
reasonably likely that such discharges will reach surface waters, the goals of the CWA can only l \
be fulfilled if those discharges are regulated.
Determining Direct Hvdrologic Connection
In recent rulemakings, EPA has used various lithologic settings to describe areas of
vulnerability to contamination of ground water. This information can serve as a guide for permit
writers to make the initial determination whether or not it is necessary to establish special ;
conditions in a CAFO permit to prevent the discharge of CAFO waste to surface water via
ground water with a direct hydrologic connection to surface water. I
During the rulemaking processes for the development of the Ground Water Rule and the i
Underground Injection Control Class V under the Safe Drinking Water Act, significant
stakeholder and Federal Advisory Committee Act (FACA), input was used to define lithologic
settings that are likely to indicate ground water areas sensitive to contamination. Areas likely to
have such a connection are those that have ground water sensitive to contamination and that have ;
a likely connection to surface water. The Ground Water Proposed Rule includes language that j
describes certain types of lithologic settings (karst, fractured bedrock, and gravel) as sensitive to ;
contamination and, therefore, subject to requirements under the rule to mitigate threats to human :
health from microbial pathogens. [See National Primary Drinking Water Regulations: Ground
Water Rule, 65 Fed. Reg. 30193 (2000) (to be codified at 40 CFR Parts 141 and 142) (proposed
May 10,2000). See also Underground Injection Control Regulations for Class V Injection
Wells, Revision; Final Rule, 64 Fed. Reg. 68546 (Dec. 7,1999) (to be codified at 40 CFR Parts
9,144,145, and 146). See also Executive Summary, NDWAC UIC / Source Water Program
Integration Working Group Meeting (March 25-26,1999). All are available in the rulemaking
Record.]
Under the Class V rule, a facility must comply with the mandates of the regulation if the
facility has a motor vehicle waste disposal well (a type of Class V well) that is in an area that has
been determined to be sensitive. (See Technical Assistance Document (TAD) for Delineating
"Other Sensitive Ground Water Areas", EPA # 816-R-00-016 - to be published.) States that are
responsible for implementing the Class V Rule, or in the case of Direct Implementation
138
-------
Programs, the EPA Regional Office, are'given flexibility to make determinations of ground water
sensitivity within certain guidelines.
40 CFR 145.23(f)(12) provides items that States are expected to consider in developing
their other sensitive ground water area plan, including:
• geologic and hydrogeologic settings,
• ground water flow and occurrence,
• topographic and geographic features,
* depth to ground water,
• *significance as a drinking water source,
• *prevailjrig land use practices, and
• *any other existing information relating to the susceptibility of ground water to
contamination from Class V injection wells.
*The last three factors are not relevant to this rulemaking but are specific to mandates under the
Safe Drinking Water Act to protect current and future sources of drinking water.
Geologic and hydrogeologic settings considered sensitive under the Class V Rule include areas
such as karst, fractured bedrock or other shallow/unconsolidated aquifers. The Class V Rule lists
karst, fractured volcanics and unconsolidated sedimentary aquifers, such as glacial outwash
deposits and eolian sands, as examples of aquifer types. Under the Class V Rule, EPA urges
States to consider all aquifer types that, based on their inherent characteristics, are likely to be
moderately to highly sensitive. Such aquifer types are those that potentially have high
permeability, such as: all fractured aquifers; all porous media aquifers with a grain size of sand or
larger, including not only unconsolidated aquifers, but sandstone as well; and karst aquifers.
For more information at the regional level, information can be found in the document
"Regional Assessment of Aquifer Vulnerability and Sensitivity in the Coterminous United
States" [EPA/600/2-91/043] for state maps showing aquifers and portions of aquifers whose
transmissivity makes them sensitive/vulnerable. This document may be helpful in identifying
areas where existing contaminants are most likely to spread laterally. State and federal
geological surveys have numerous geological maps and technical reports that can be helpful in
the identification of areas of sensitive aquifers. University geology and earth science
departments and consulting company reports may also have helpful information.
139
-------
Data sources to assist permit writers in making sensitivity determinations can be acquired
through many sources as listed above and include federal, state, and local data. For example,
USGS maps and databases such as the principal aquifers map, state maps, other programs where
such assessments may have been completed, such as State Source Water Assessment Programs
(SWAP), state Class V, or Ground Water Rule sensitivity determinations.
Another potential approach to defining areas of ground water sensitivity would be to
define a set of characteristics which a facility could determine whether it met by using a set of
national, regional and/or local maps. For instance, overburden, that is, soil depth and type, along
with depth to water table, hydrogeologic characteristics of the surficial aquifer, and proximity to
surface water could be factors used to define sensitive areas for likely ground water/surface water
connections. For example, while there is no consistent definition or agreement as to what could
be considered "shallow," a depth to the water table less than, say, six feet with sandy soils or
other permeable soil type might indicate ground water vulnerability. Data of this nature could be
obtained from USDA's Natural Resource Conservation Service (NRCS) national soils maps,
available from the NRCS web site(www.nhq.nrcs.usda.gov/land/index/SQils,ntmD or from the
EPA web site (www.epa.gov/ostwateryBASINS/metadata/statsgo.htm).
Once it is determined that the CAFO is in a ground water sensitive area, proximity to a
surface water would indicate a potential for the CAFO to discharge to surface water via a direct
hydrological connection with ground water. .Proximity to surface water would be considered
when there is a short distance from the boundary of the CAFO to the closest downstream surface
water body. Again, information of this type could be obtained from USGS topographic maps or
state maps.
USGS Hvdrolopc Landscape Regions
Another approach for determining whether CAFOs in a region are generally located in
areas where surface water is likely to have hydrological connections with ground water is by
using a set of maps under development by the U.S. Geological Survey (USGS). USGS is
developing a national map of Hydrologic Landscape Regions that describe watersheds based on
their physical characteristics, such as topography and lithology. These maps will, among other
things, help to identify physical features in the landscape that are important to water quality such
as areas across the country where the geohydrology is favorable for ground water interactions
with surface water.
The regions in this map will be delineated based on hydrologic unit codes (HUCs)
nationwide and do not provide information at local scales; however, the maps can provide
supplemental information that describes physical features within watersheds where interactions
between ground water and surface water are found. These areas are the most likely places where
ground water underlying CAFO's could be discharged to nearby surface water bodies. While
EPA has not fully assessed how this tool might be used to determine a CAFO's potential to
discharge an excerpt of the pre-print report is provided here for purposes of discussion. The
140
-------
report describing this tool is anticipated to be published in Spring 2001 (Wolock, Winter, and
McMahon, in review).
The concept of hydro] ogic landscapes is based on the idea that a single, simple physical
feature is the basic building block of all landscapes. This feature is termed a fundamental
landscape unit and is defined as an upland adjacent to a lowland separated by an intervening
steeper slope. Some examples of hydrologic landscapes are as follows:
• A landscape consisting of narrow lowlands and uplands separated by high and
steep valley sides, characteristic of mountainous terrain;
• A landscape consisting of very wide lowlands separated from much narrower
uplands by steep valley sides, characteristic of basin and range physiography and
basins of interior drainage; or
• A landscape consisting of narrow lowlands separated from very broad uplands by
valley sides of various slopes and heights, characteristic of plateaus and high
plains.
The hydrologic system of a fundamental landscape unit consists of the movement of
surface water, ground water, and atmospheric-water exchange. Surface water movement is
controlled by land-surface slope and surficial permeability; ground-water flow is a function of
gravitational gradients and the hydraulic characteristics of the geologic framework; and
atmospheric-water exchange primarily is determined by climate (Winter, in review). The same
physical and climate characteristics control the movement of water over the surface and through
the subsurface regardless of the geographic location of the landscapes. For example, if a
landscape has gentle slopes and low-permeability soils, then surface runoff will be slow and
recharge to ground water will be limited. In contrast, if the soils are permeable in a region of
gentle slopes, then surface runoff may be limited but ground-water recharge will be high.
The critical features used to describe hydrologic landscapes are land-surface form,
geologic texture, and climate. Land-surface form can be used to quantify land-surface slopes and
relief. Geologic texture provides estimates of surficial and deep subsurface permeability which
control infiltration, the production of overland flow, and ground-water flow rates. Climate
characteristics can be used to approximate available water to surface and ground-water systems.
The variables used to identify hydrologic settings were averaged within each of the 2,244
hydrologic cataloging units defined by the USGS. This degree of spatial averaging was coarse
enough to smooth the underlying data but fine enough to separate regions from each other.
For example, two Hydrological Landscape Regions (HLR) that are likely to have
characteristics of ground water and surface water interactions with direct relevance to this
proposed rulemaking would be "HLR1" and "HLR9". HLR1 areas are characterized by variably
wet plains having highly permeable surface and highly permeable subsurface. This landscape is
141
-------
92 percent flat land, with 56 percent of the flat land in the lowlands and 37 percent in the !
uplands. Land surface and bedrock are highly permeable. Because of the flat sandy land surface, ii
this geologic framework should result in little surface runoff, and recharge to both local and fj
regional ground-water flow systems should be high. Therefore, ground water is likely to be the !j
dominant component of the hydrologic system in this landscape. The water table is likely to be }i
shallow in the lowlands, resulting in extensive wetlands in this part of the landscape. ;j
;i
Major water issues in this hydrologic setting probably would be related to contamination 1|
of ground water. In the uplands, the contamination could affect regional ground-water flow
systems. In the lowlands, the thin unsaturated zone and the close interaction of ground water and jj
surface water could result in contamination of surface water. Flooding probably would not be a !j
problem in the uplands, but it could be a serious problem in the lowlands because of the flat :j
landscape and shallow water table.
HLR9 areas are characterized by wet plateaus having poorly permeable surface and highly
permeable subsurface. This landscape is 42 percent flat land, with 24 percent in lowlands and 17
percent in uplands. Land surface is poorly permeable and bedrock is highly permeable. Because
of the flat poorly permeable land surface, this geologic framework should result in considerable
surface runoff and limited recharge to ground water. However, the bedrock is largely karstic
carbonate rock, which probably would result in a considerable amount of surface runoff entering
the deep aquifer through sinkholes. This water could readily move through regional ground-
water flow systems. Surface runoff and recharge through sinkholes are likely to be the dominant
component of the hydrologic system in this landscape. The water table is likely to be shallow in
the lowlands, resulting in extensive wetlands in this part of the landscape. Major water issues in
this hydrologic setting probably would be related to contamination of surface water from direct
surface runoff, and extensive contamination of ground water (and ultimately surface water)
because of the ease of movement through the bedrock. The capacity of these carbonate rocks to
mediate contaminants is limited. Flooding could be a problem in the lowlands.
EPA is requesting comment on how a permit writer might identify CAFOs at risk of
discharging to surface water via ground water. EPA is also requesting comment on its cost
estimates for the permittee to have a hydrologist make such a determination. EPA estimates that
for a typical CAFO, the full cost of determining whether ground water beneath the facility has a
direct hydrologic connection to surface water would be approximately $3,000. See Section X for
more information on cost estimates.
Permit requirements for facilities with groundwater that has a direct hydrologic
connection with surface water are discussed in Section Vn.E.5.d below.
k. What Regulatory Relief is Provided by Today's Proposed
Rulemaking?
Two-tier vs. Three-tier Structure
142
-------
Each of EPA's proposals effect small livestock and poultry businesses in different ways,
posing important trade-offs when selecting ways to mitigate economic impacts. First, by
proposing to establish a two-tier structure with a 500 AU threshold, EPA is proposing not to
automatically impose the effluent guidelines requirements on operations with 300 to 500 AU. By
eliminating this size category, EPA estimates that about 10,000 smaller AFOs are relieved from
being defined as CAFOs, and instead would only be subject to permitting if designated by the
permit authority due to being a significant contributor of pollutants.
A three-tier structure, by contrast, only automatically defines all operations over 1,000
AU as CAFOs, instead of 500 AU. However, while all of the 26,000 AFOs between 300 and
1,000 AU wouldn't be required to apply for an NPDES permit, all those operations would be
required to either apply for a permit or to certify to the permit authority that they do not meet any
of tlw conditions for being a CAFO. EPA estimates that approximately 19,000 of these
operations would have to change some aspect of their operation in order to avoid being
permitted, and all 26,000 would be required to develop and implement a PNP. Thus, while in
theory fewer operations could be permitted, in fact more small enterprises would incur costs
under a three-tier scenario. Section X.J.4 provides a summary of the difference in costs
associated with these two options; more detailed information is provided in Section 9 of the
Economic Analysis.
The three-tier structure allows States more flexibility to develop more effective non:
NPDES programs to assist middle tier operations. The two-tier structure with a 500 AU
threshold might limit access to federal funds, such as Section 319 nonpoint source program
funds, for operations in the 500 to 1,000 AU range. The detailed conditions in the three-tier
structure, however, do not meet the goal of today's proposal to simplify the NPDES regulation
for CAFOs because it leaves in place the need for the regulated community and enforcement
authorities to interpret a complicated set of conditions.
Chicken Threshold
During deliberations to select a threshold for dry chicken operations, EPA considered
various options for relieving small business impacts. Under the two-tier structure, EPA
examined a 100,000 bird threshold as well as a 50,000 bird threshold. Although the 50,000 bird
threshold effects many more small chicken operations, analysis showed that setting the threshold
at 100,000 birds would not be sufficiently environmentally protective in parts of the country that
have experienced water quality degradation from the chicken industry. Section VII.C.2.f
describes the relative benefits of each of these options. Nonetheless, because wet layer
operations are currently regulated at 30,000 birds, raising the threshold to 50,000 birds will
relieve some small businesses in this sector.
Elimination of the mixed animal calculation
143
-------
EPA's is further proposing to mitigate the effects of today's proposal on small businesses
by eliminating the mixed animal calculation for determining which AFOs are CAFOs. Thus, ij
operations with mixed animal types that do not meet the size threshold for any single livestock
category would not be defined as a CAFO. EPA expects that there are few AFOs with more than jj
a single animal type that would be defined as CAFOs, since most mixed operations tend to be i,
smaller in size. The Agency determined that the inclusion of mixed operations would ! j
disproportionately burden small businesses while resulting in little additional environmental
benefit. Since most mixed operations tend to be smaller in size, this exclusion represents ,
important accommodations for small business. EPA's decision not to include smaller mixed ,;
operations is consistent with its objective to focus on the largest operations since these pose the |j
greatest potential risk to water quality and public health given the sheer volume of manure i:
generated at these operations.
Operations that handle larger herds or flocks take on the characteristics of being more
industrial in nature, rather than having the characteristics typically associated with fanning. /
These facilities typically specialize in a particular animal sector rather than having mixed animal "
types, and often do not have an adequate land base for agricultural use of manure. As a result,
large facilities need to dispose of significant volumes of manure and wastewater which have the ',
potential, if not properly handled, to cause significant water quality impacts. By comparison,
smaller farms manage fewer animals and tend to concentrate less manure nutrients at a single I
farming location. Smaller farms tend to be less specialized and are more diversified, engaging in j
both animal and crop production. These farms often have sufficient cropland and fertilizer needs i
to land apply manure nutrients generated at a farm's livestock or poultry business for agricultural I
purposes. ;
For operations not defined as a CAFO, the Permit Authority would designate any facility
determined to be a significant contributor of pollution to waters of the U.S. as a CAFO, and
would consequently develop a permit based on best professional judgement (BPJ). :
The estimated cost savings from eliminating the mixed animal calculation is
indeterminate due to limited information about operations of this size and also varying cost
requirements. EPA's decision is also expected to simplify compliance and be more
administratively efficient, since the mixed operation multiplier was confusing to the regulated
community and to enforcement personnel, and did not cover all animal types (because poultry did
not have an AU equivalent).
Site-specific PNPs Rather than Mandated BMPs
In addition, while facilities that are defined or designated as CAFOs would be subject to
specific performance standards contained with the permit conditions, EPA's proposed revisions
also provide flexibility to small businesses. In particular, the revised effluent guidelines and
NPDES standards and conditions are not specific requirements for design, equipment, or work
practices, but rather allow the CAFO operator to write site-specific Permit Nutrient Plans that
144
-------
implement the permit requirements in a manner appropriate and manageable for that business.
This wiU reduce impacts to all facilities, regardless of size, by allowing operators to choose the
Jeast costly mix of process changes and new control equipment that would meet the limitations.
Demonstration of No Potential to Discharge
Finally, in both proposals, operations that must apply for a permit would have the
additional opportunity to demonstrate to the permit authority that pollutants have not been
discharged and have no potential to discharge into waters of the U.S. These operations would
not be issued a permit if they can successfully demonstrate no potential to discharge. See section
VII.D.3 for a discussion of demonstrating "no potential to discharge."
Measures Not Being Proposed
During the development of the CARD rulemaking, EPA considered regulatory relief
measures under the NPDES permit program that are not being proposed, including: (1) a "Good
Faith Incentive," and (2) an "Early Exit" provision. These options are summarized below. More
detail is provided in the SBREFA Panel Report (2000).
Under the "Good Faith Incentive," EPA considered incorporating an incentive for small
CAFO businesses (i.e., AFOs with a number of animals below the regulatory threshold) to take
early voluntary actions in good faith to manage manure and wastewater in accordance with the
requirements of a nutrient management plan. In the event that such smaller AFOs have a
discharge that would otherwise cause them to be designated as CAFOs, the CAFO regulations
would provide an opportunity for these smaller AFOs to address the cause of the one-time
discharge and avoid being designated as CAFOs.
Under the "Early Exit" provision, EPA considered a regulatory provision that would
explicitly allow CAFOs with fewer animals than the regulatory threshold for large CAFOs to exit
the regulatory program after five years of good performance. The regulations could allow such a
smaller CAFO to exit the regulatory program if it demonstrates that it had successfully addressed
the conditions that caused it to either be defined or designated as a CAFO.
EPA decided not to include either of these provisions in the proposed regulations
following the SBAR Panel consultation process. Neither small businesses, SBA, OMB, nor EPA
enforcement personnel expressed support for either of these provisions. Also, the Early Exit
provision was not deemed to provide additional regulatory relief over the current program, since
an operation that has been defined or designated as a CAFO can already make changes at the
operation whereby, after complying with the permit for the permit's five year term, the operation
would no longer meet the definition of a CAFO and therefore would no longer be required to be
permitted.
145
-------
Both the regulatory relief measures selected and those considered but not selected are
discussed in detail in Chapter 9 of the Economic Analysis, included in the Record for today's
proposed rulemaking. EPA requests comment on the regulatory relief measures considered but
not included in today's proposal.
3. How Does the Proposed Rule Change the Existing Designation
Criteria and Procedure?
In the existing regulation, an operation in the middle tier, those with 300 AU to 1,000
AU, may either be defined as a CAFO or designated by the permit authority; those in the smallest
category, with fewer than 300 AU, may only be designated a CAFO if the facility discharges: 1)
into waters of the United States through a man-made ditch, flushing system, or other similar
man-made device; or 2) directly into waters of the United States that originate outside of the
facility and pass over, across, or through the facility or otherwise come into direct contact with
the confined animals. The permit authority must conduct an on-site inspection to determine
whether the AFO is a significant contributor of pollutants. The two discharge criteria have
proved difficult to interpret and enforce, making it difficult to take enforcement action against
dischargers. Very few facilities have been designated in the past 25 years despite environmental
concerns.
EPA's proposals on how, and whether, to amend these criteria vary with the alternative
structure. Under a two-tier structure, EPA is proposing to eliminate these two criteria; under a
three-tier structure, EPA is proposing to retain these two criteria.
Under the proposed two-tier structure with a 500 AU threshold, or under any other
alternative two-tier structure such as with a 750 AU threshold, EPA is proposing to eliminate the
two discharge criteria. Raising the NPDES threshold to 500 AU, 750 AU or 1,000 AU raises a
policy question for facilities below the selected threshold but with more than 300 AU. Facilities
with 300 to 1,000 AU are currently subject to NPDES regulation (if certain criteria are met). To
rely entirely on designation for these operations could be viewed by some as deregulatory,
because the designation process is a time consuming and resource intensive process that makes it
difficult to redress violations. It could also result in the inability of permit authorities to take
enforcement actions against initial discharges unless they are from an independent point source at
the facility. Otherwise, the initial discharge can only result in initiation of the designation
process itself; enforcement could only take place upon a subsequent discharge. Unless the
designation process can be streamlined in some way to enable permit authorities to more
efficiently address those who are significant contributors of pollutants, raising the threshold too
high may also not be sufficiently protective of the environment. While EPA could have proposed
to retain the two criteria for those with fewer than 300 AU, and eliminate it only for those with
greater than 300 AU but below the regulatory threshold, EPA believes that this would introduce
unnecessary complexity into this regulation.
While eliminating the two discharge criteria, this proposal would retain the provision in
the existing regulation that any AFO may be designated as a CAFO on a case-by-case basis if the
146
-------
NPDES permit authority determines that the facility is a significant contributor of pollutants to
waters of the U.S. Today's proposal would not change the factors that the regulation lists as
relevant to whether a facility is a significant contributor - see proposed §122.23(b)(l) (listing
factors such as: the size of the operation; the amount of wastewater discharged; the location of
any potential receiving waters; means of conveyance of animal manure and process wastewater
into waters of the U.S.; slope, vegetation, rainfall and other factors affecting the likelihood or
frequency of discharge to receiving waters).
This proposal also retains the existing requirement that the permit authority conduct an
on-site inspection before making a designation. No inspection would be required, however, to
designate a facility that was previously defined or designated as a CAFO, although the permit
authority may chose to do one.
Under a three-tier structure, EPA is proposing to retain the two discharge criteria used to
designate an AFO with fewer than 300 AU as a CAFO. In this approach, facilities in the 300 AU
to 1,000 AU size range must meet certain conditions for being considered a CAFO, and EPA
considers this to be sufficiently protective of the environment.
EPA is requesting comment on these two proposals, and also requests comment on three
other alternatives. EPA could: 1) retain the two criteria even under a two-tier structure for all
operations below the regulatory threshold; 2) retain the two criteria under a two-tier structure for
only for those with fewer than 300 AU and eliminate the two criteria for those below the
regulatory threshold but with greater than 300 AU; or 3) eliminate the criteria in the three-tier
structure for those with fewer than 300 AU.
Significant concern was raised over the issue of designation during the SBREFA Panel
process. At the time of the Panel, EPA was not considering eliminating these two criteria, and
SERs and Panel members strongly endorsed this position. At that time, EPA's was focusing on a
three-tier structure with revised conditions as the preferred option, and retaining the criteria was
consistent with the revisions being considered. Since then, however, EPA's analysis has resulted
in a strong option for a two-tier approach that would be simpler to implement and would focus
on the largest operations. Once this scenario became a strong candidate, reconsideration of the
two designation criteria was introduced. EPA realizes that this proposal has raised some concern
in the small business community. However, EPA does not believe that eliminating these criteria
will result in significantly more small operations being designated. Rather, it will enable the
permit authority to ensure that the most egregious discharges of significant quantities of
pollutants are addressed.
It is likely that few AFOs with less than 300 AU are significant contributors of pollutants,
and permit authorities may be appropriately focusing scarce resources on larger facilities.
Further, some also believe that it may be appropriate under a two-tier structure to retain the two
criteria as well as the on-site inspection criterion to AFOs under the regulatory threshold, e.g.
with fewer than 500 AU or 750 AU. SERs during the SBREFA process indicated that family
147
-------
farmers operating AFOs with fewer than 1,000 AU tend to have a direct interest in environmental
stewardship, since their livelihood (e.g., soil quality and drinking water) often depends on it.
They also argued that EPA should not divert resources away from AFOs with the greatest
potential to discharge - those with 1,000 AU or more. EPA is soliciting comment on whether to
retain the designation criteria for all AFOs below the regulatory threshold in a two-tier structure,
and whether this option will be protective of the environment.
While permit authorities have indicated that the requirement for an on-site inspection ;!
makes the designation process resource intensive, recommendations resulting from the SBREFA I!
small business consultation process encouraged EPA not to remove the on-site inspection !
requirement. Some were concerned that EPA might do widespread blanket designations of large i!
numbers of operations, especially in watersheds that have been listed under the CWA 303(d),
Total Maximum Daily Load (TMDL) process. Thus, EPA is soliciting comment on whether to
eliminate the requirement that the inspection be "on-site," perhaps by allowing, in lieu of on-site .,
inspections, other forms of site-specific information gathering, such as use of monitoring data, i|
fly-overs, satellite imagery, etc. Other parts of the NPDES program allow such information
gathering and do not require inspections to be "on-site." •;.
j
If the on-site requirement were eliminated, the permit authority would still need to make a |,
determination that the facility is a significant contributor of pollution, which might necessitate an ;l
on-site inspection in many cases. On the other hand, in watersheds that are not meeting water iu
quality standards for nutrients, the permit authority could designate all AFOs as CAFOs without: ,ji
conducting individual on-site inspections. Even in 303(d) listed watersheds, however, an -A
operator of an individual facility might be able to demonstrate in the NPDES permit application p
that it has no potential to discharge, and request that it be exempted from NPDES requirements. 'c
Due to the significant concerns of the small business community, EPA is not proposing at
this time to eliminate the on-site inspection requirements, but, rather, EPA is soliciting comment i
on whether or not to eliminate this provision or to revise it to allow other forms of site-specific
data gathering. '-.
Finally, EPA is proposing a technical correction to the designation regulatory language. : v
The existing CAFO NPDES regulations provide for designation of an AFO as a CAFO upon ;
determining that it is a significant contributor of "pollution" to the waters of the U.S. 40CFR
122.23(c). EPA is today proposing to change the term to "pollutants." Elsewhere in the NPDES !
regulations, EPA uses the phrase "significant contributor of pollutants" for designation purposes. \-
40 CFR 122.26(a)(l)(v). EPA is not aware of any reason the Agency would have used different i;
terms for similar designation standards, and is seeking consistency in this proposal. The Agency |!
believes the term "pollutant" is the correct term. The Clean Water Act provides definitions for i,
both "pollutant and "pollution" in Section 502, but the NPDES program of Section 402 focuses ||
specifically on permits "for the discharge of any pollutant, or combination of pollutants." i'
148
-------
Therefore, EPA believes it is appropriate to establish a designation standard for purposes of
permitting CAFOs based on whether a facility is a significant contributor of "pollutants."
4. Designation of CAFOs by EPA in Approved States
Today's proposal would explicitly allow the EPA Regional Administrator to designate an
AFO as a CAFO if it meets the designation criteria in the regulations, even in States with
approved NPDES programs. See proposed §122.23 (b). As described in the preceding section,
Vn.C.4, AFOs that have not been defined as CAFOs may be designated as CAFOs on a case-by-
case basis upon determination that such sources are significant contributors of pollution to waters
of the United States. EPA's authority to designate AFOs as CAFOs would be subject to the same
criteria and limitations to which State designation authority is subject.
The existing regulatory language is not explicit as to whether EPA has the authority to
designate AFOs as CAFOs in States with approved NPDES programs. The current regulations
state that "the Director" may designate AFOs as CAFOs. 40 CFR 122.23(c)(l). The existing
definition of "Director" states* "When there is an approved State program, 'Director' normally
means the State Director. In some circumstances, however, EPA retains the authority to take
certain actions even where there is an approved State program." 40 CFR 122.2. Today's
proposal would give EPA the explicit authority to designate an AFO as a CAFO in States with
approved programs.
EPA does not propose to assume authority or jurisdiction to issue permits to the CAFOs
that the Agency designates in approved NPDES States. That authority would remain with the
approved State.
EPA believes that CWA Section 501 (a) provides the Agency with the authority to
designate point sources subject to regulation under the NPDES program, even in States approved
to administer the NPDES permit program. This interpretive authority to define point sources and
nonpoint sources was recognized by the D.C. Circuit in NRDC v. Costle. 568 F.2d 1369,1377
(D.C. Cir. 1977). The interpretive authority arises from CWA Section 501(a) when EPA
interprets the term "point source" at CWA Section 502(14). EPA's proposal would ensure that
EPA has the same authority to designate AFOs as CAFOs that need a permit as the Agency has
to designate other storm water point sources as needing a permit. See 40 CFR 122.26(a)(2)(v).
EPA recognizes that many State agencies have limited resources to implement their
NPDES programs. States may be hesitant to designate CAFOs because of concerns that
regulating the CAFOs will require additional resources that could be used for competing
priorities. In light of the increased reliance and success in control of point sources under general
permits, however, the Agency believes that there will be only an incremental increase in
regulatory burden due to the designated sources.
149
-------
On August 23,1999, the Agency proposed to provide explicit authority for EPA to
designate CAFOs in approved States, but would have limited such authority to the designation of
AFOs where pollutants are discharged into waters for which EPA establishes a total maximum
daily load or 'TMDL" and designation is necessary to ensure that the TMDL is achieved.
64 Fed. Reg. 46058,46088 (August 23,1999). EPA received comments both supporting and
opposing the proposal. Li promulgating the final TMDL rule, however, the Agency did not take
final action on the proposed changes applicable to CAFOs, 65 FR 43586,43648 (July 13,2000),
deciding instead to take action in this proposed rulemaking.
Today's proposal is intended to help ensure nationally consistent application of the
provisions for designating CAFOs and is not focusing specifically at AFOs in impaired
watersheds. Implementation of the current rule in States with NPDES authorized programs has
varied greatly from State to State, with several States choosing to implement non-NPDES State
programs rather than a federally enforceable NPDES program. Public concerns have also been
raised about lack of access to State non-NPDES CAFO programs. While several of today's
proposed revisions would help to correct these disparities, EPA is concerned that there may be
instances of significant discharges from AFOs that may not be addressed by State programs, and
that are not being required to comply with the same standards and requirements expected of all
AFOs. As pan of their approved programs, States should designate AFOs that are significant
sources of pollutants. EPA would have the authority to designate AFOs as CAFOs, should that
be necessary.
The Agency invites comment on this proposal.
5. Co-permitting Entities That Exert Substantial Operational Control
Over a CAFO
EPA is proposing that permit authorities co-permit entities that exercise substantial
operational control over CAFOs along with the owner/operator of the facility. See proposed
§122.23(a)(5) and (i)(4). While the permit authority currently may deem such entities to be
"operators" under the Clean Water Act and require them to be permitted under existing legal
requirements, today's proposal includes changes to the regulations to identify the circumstances
under which co-permitting is required and how permit authorities are expected to implement the
requirements. Because the existing definition of "operator" in 122.2 generally already
encompasses operators who exercise substantial operational control, the Agency is seeking
comment on whether this additional definition [or provision] is necessary.
For other categories of discharges, EPA's regulations states that contributors to a
discharge "may" be co-permittees. See 40 CFR §l22.44(m). §122.44(m) addresses the situation
in which the co-permittees operate distinct sources and a privately owned treatment works is the
owner of the ultimate point source discharge. In that context, EPA deemed it appropriate to give
the permit writer the discretion to permit only the privately owned treatment works or the distinct
sources, or both, depending on the level of control each exercises over the pollutants. In the
150
-------
context of CAFOs, however, the co-permittees both control some aspects of operations at the
point source. Therefore, EPA is proposing that they must either be co-permittees or each must
hold a separate permit.
Processor/Producer Relationship
As discussed below, proposed §122.23(a)(5) is intended, at a minimum, to require permit
authorities to hold certain entities that exercise substantial operational control over other entities
jointly responsible for the proper disposition of manure generated at the CAFO. While under
today's proposal a permit authority could require an entity that has substantial operational control
over a CAFO to be jointly responsible for all of the CAFO's NPDES permit requirements, the
proposal would allow the permit authority to allocate individual responsibility for various
activities to any of the co-permittees. The proposed rule would specify, however, that the proper
disposition of manure must remain the joint responsibility of all the entities covered by the
permit.
As discussed in more detail in section IV.C. of this preamble, among the major trends in
livestock and poultry production are closer linkages between animal feeding operations and
processing firms. Increasingly, businesses such as slaughtering facilities and meat packing plants
and some integrated food manufacturing facilities are contracting out the raising or finishing
production phase to a CAFO. Oftentimes, production contracts are used in which a contractor
(such as a processing firm, feed mill, or other animal feeding operation) retains ownership of the
animals and/or exercises substantial operational control over the type of production practices
used at the CAFO. More information on the trends in animal agriculture and the evolving
contractual relationships between producer and processors is presented in section IV.C of this
preamble.
Use of production contracts varies by sector. Production contracting dominates U.S.
broiler and turkey production, accounting for 98 percent of annual broiler production and 70
percent of turkey production. About 40 percent of all eggs produced annually are under a
production contract arrangement. Production contracting in the hog sector still accounts for a
relatively small share of production (about 30 percent of hog production in 1997), but use is
rising, especially in some regions. Production contracts are uncommon at beef and dairy
operations, although they are used by some operations to raise replacement herd or to finish
animals prior to slaughter. Additional detail on the use of production contracts in these sectors is
provided in section VI.
Although farmers and ranchers have long used contracts to market agricultural
commodities, increased use of production contracts is changing the organizational structure of
agriculture and is raising policy concerns regarding who is responsible for ensuring that manure
and wastewater is contained on-site and who should pay for environmental improvements at a
production facility. As a practical matter, however, regulatory authorities have limited ability to
151
-------
influence who pays for environmental compliance, since the division of costs and operational
responsibilities is determined by private contracts, not regulation.
In addition, there is also evidence that the role of the producer-processor relationship may
influence where animal production facilities become concentrated, since animal feeding
operations tend to locate in close proximity to feed and meat packing plants. This trend may be
increasing the potential that excess manure nutrients beyond the need for crop fertilizer are
becoming concentrated in particular geographic areas, thus raising the potential for increased
environmental pressure in those areas. To further examine this possibility, EPA conducted an
analysis of the correlation between areas of the country where there is a concentration of excess
manure generated by animal production operations and a concentration of meat packing and
poultry slaughtering facilities. This analysis concludes that in some areas of the country there is
a strong correlation between areas of excess manure concentrations and areas where there is a 'I
large number of processing plants. More information on this analysis is provided in section ;
IV.C.4 of this preamble.
Substantial Operational Control as Basis for Co-Permitting
Today's proposal would clarify that all entities that exercise substantial operational
control over a CAFO are subject to NPDES permitting requirements as an "operator" of the |i
facility. EPA's regulations define an owner or operator as "the owner or operator of any 'facility j!
or activity' subject to regulation under the NPDES program." 40 CFR §122.2. This definition j.
does not provide further detail to interpret the term, and the Agency looks for guidance in the ,
definitions of the term in other sections of the statute: 'The term 'owner or operator' means any I1
person who owns, leases, operates, controls, or supervises a source." CWA §306(a)(4)
(emphasis added). !
Case law defining the term "operator" is sparse, but courts generally have concluded that '!
through the inclusion of the terms owner and operator: "Liability under the CWA is predicated ;|
on either 1) performance of the work, or 2) responsibility for or control over the work." U.S. v. '.^
Sargent County Water Resources Dist., 876 F.Supp 1081,1088 (N.D. 1992). See also, U.S, v. :;
Lambert, 915 F.Supp. 797, 802 (S .D.WVa. 1996)("The Clean Water Act imposes liability both j j
on the party who actually performed the work and on the party with responsibility for or control
over performance of the work."); U.S. v. Board of Trustees ofFla. Keys Community College, 531 "•
F.Supp. 267,274 (S.D.Fla. 1981). Thus, under the existing regulation and existing case law, ;
integrators which are responsible for or control the performance of the work at individual CAFOs !!
may be subject to the CWA as an operator of the CAFO. With today's proposal, EPA is ij
identifying some factors which the Agency believes indicate that the integrator has sufficient j;
operational control over the CAFO to be considered an "operator" for purposes of the CWA. j
Whether an entity exercises substantial operational control over the facility would depend !J
on the circumstances in each case. The proposed regulation lists factors relevant to "substantial
operational control," which would include (but not be limited to) whether the entity: (1) directs
152
-------
the activity of persons working at the CAFO either through a contract or direct supervision of, or
on-site participation in, activities at the facility; (2) owns the animals; or (3) specifies how the
animals are grown, fed, or medicated. EPA is aware that many integrator contracts may not
provide for direct integrator responsibility for manure management and disposal. EPA believes,
however, that the proposed factors will identify integrators who exercise such pervasive control
over a facility that they are, for CWA purposes, co-operators of the CAFO.
This is a representative list of factors that should be considered in determining whether a
co-permit is appropriate, but States should develop additional factors as needed to address their
specific needs and circumstances. The greater the degree to which one or more of these or other
factors is present, the more likely that the entity is exercising substantial operational control and,
thus, the more important it becomes to co-permit the entity. For example, the fact that a
processor required its contract grower to purchase and feed its animals feed from a specific
source could be relevant for evaluating operational control. EPA will be available to assist
NPDES permit authorities in making case-specific determinations of whether an entity is
exerting control such that it should be co-permitted. EPA is also taking comment on whether
there are additional factors which should be included in the regulation. EPA also requests
comment on whether degree of participation in decisions affecting manure management and
disposal is one of the factors which should be considered.
EPA is soliciting comment on whether, alternatively, the fact that an entity owns the
animals that are being raised in a CAFO should be sufficient to require the entity to be a joint
permittee as a owner. EPA believes that ownership of the animals establishes an ownership
interest in the pollutant generating activity at the CAFO that is sufficient to hold the owner of the
animals responsible for the discharge of pollutants from the CAFO.
In non-CAFO parts of the NPDES regulations, the operator rather than the owner is
generally the NPDES permit holder. One reason an owner is not required to get a permit is
illustrated by an owner who has leased a factory. When an owner leases a factory to the lessee-
operator, the owner gives up its control over the pollution-producing activities. The owner of
animals at a feedlot, on the other hand, maintains all current interests in the animal and is merely
paying the contract grower to raise the animals for the owner. It is the owner's animals that
generate most of the manure and wastewater that is created at a CAFO. Therefore, EPA believes
that ownership of the animals may be sufficient to create responsibility for ensuring that their
wastes are properly disposed of. This may be particularly true where manure must be sent off-
site from the CAFO in order to be properly disposed of.
EPA has previously identified situations where the owner should be the NPDES permittee
rather than, or in addition to, the contract operator. In the context of municipal wastewater
treatment plants, EPA has recognized that the municipal owner rather than the contract operator
may be the proper NPDES permittee where the owner maintains some control over the plant.
153
-------
If EPA selects this option, it might also clarify that ownership could be determined by
factors other than outright title to the animals. This would prevent integrators from modifying
their contracts so that they do not own the animals outright. EPA could develop factors for
determining ownership such as the existence of an agreement to purchase the animals at a fixed
price together with the integrator accepting the risk of loss of the animals prior to sale. EPA
solicits comments on whether such criteria are necessary and, if so, what appropriate criteria
would be.
Implementation of Co-Permitting
All permittees would be held jointly responsible for ensuring that manure production in
excess of what can be properly managed on-site is handled in an environmentally appropriate
manner. The effluent guidelines proposes to require a number of land application practices that
will limit the amount of CAFO manure that can be applied to a CAFO's land application areas.
If the CAFO has generated manure in excess of the amount which can be applied consistent with
its NPDES permit, the proposed NPDES regulations impose a number of requirements on co-
permittees, described in Vn.D.4. See proposed § 122.230X4). The co-permittees could also
transfer their excess manure to a facility to package it is as commercial fertilizer, to an
incinerator or other centralized treatment, to be transformed into a value-added product, or to any
other operation that would not land apply the manure. EPA is proposing that manure that must
leave the CAFO in order to be properly managed not be considered within the unique control of
any of the entities with substantial operational control over the CAFO. In fact, an integrator that
owns the animals at a number of CAFOs in an area which are producing manure in such volumes
that it cannot be properly land applied may be in a unique position to be able to develop
innovative means of compliance with the permit limits. Today's proposal would specify that the
disposition of excess manure would remain the joint responsibility of all permit holders. See
proposed §122.23(i)(9). Integrators would thereby be encouraged to ensure compliance with
NPDES permits in a number of ways, including: a) establishing a corporate environmental
program that ensures that contracts have sound environmental requirements for the CAFOs; b)
ensuring that contractors have the necessary infrastructure in place to properly manage manure;
and c) developing and implementing a program that ensures proper management and/or disposal
of excess manure. The proposed requirement will give integrators a strong incentive to ensure
that their contract producers comply with permit requirements and subject them to potential
liability if they do not. Integrators could also establish facilities to which CAFOs in the area
could transfer their excess manure. EPA is further proposing to require co-permitted entities to
assume responsibility for manure generated at their contract operations when the manure is
transferred off-site.
EPA believes that integrators will want to make good faith efforts to take appropriate
steps to address the adverse environmental impacts associated with their business. EPA is
soliciting comments on how to structure the co-permitting provisions of this ralemaking to
achieve the intended environmental outcome without causing negative impacts on growers.
154
-------
EPA also believes the proposal contains sufficient flexibility for permit authorities to
develop creative, and streamlined, approaches to co-permitting. For example, a State might want
to develop an NPDES general permit in collaboration with a single integrator or, alternatively,
with all integrators in a geographic region (e.g., statewide, watershed, etc.). Such a general
permit might require integrators to assume responsibility for ensuring that their contractors
engage in proper management practices for excess manure. As a condition of the NPDES
genera] permit, the integrator could be obligated to fulfill its commitment or to assume
responsibility for violations by its growers.
The proposed regulations would provide that a person is an "operator" when "the Director
determines" that the person exercises substantial operational control over the CAFO. EPA also
considered whether to delete the reference to a determination by the Director, so that any person
who exercised such control over a CAFO would be an operator without the need for a
deteimination by the Director. If EPA were to eliminate the need for a determination before such
a person may be an "operator," persons who may meet this definition would be less certain in
some cases as to whether they do in fact meet it. On the other hand, if EPA retains the need for a
determination by the Director, then because of resource shortages or for other reasons, EPA or
the State might not be able to make these determinations in a timely way, or might not make
them at all in some cases. These persons would therefore inappropriately be able to avoid
liability even though they are exercising substantial operational control of a CAFO. Accordingly,
EPA requests comments on whether the final rule should retain the need for a determination by
the Director of substantial operational control. Finally, EPA solicits comment on whether to
provide that, in authorized States, either the Director or EPA may make the determination of
substantial operational control.
Additional Issues Associated with_Co-Permitting
The option of co-permitting integrators was discussed extensively by small entity
representatives (SERs) and by the Small Business Advocacy Review Panel during the SBREFA
outreach process. The SERs included both independent and contract producers. A majority of
SERs expressed opposition to such an approach. They were concerned that co-permitting could
decrease the operator's leverage in contract negotiations with the corporate entity, increase
corporate pressure on operators to indemnify corporate entities against potential liability for non-
compliance on the part of the operator, encourage corporate entities to interfere in the operational
management of the feedlot in order to protect against such liability, provide an additional pretext
for corporate entities to terminate a contract when it was to their financial advantage to do so,
restrict the freedom of operators to change integrators, and generally decrease the profits of the
operator. These SERs were not convinced that co-permitting would result in any benefit to the
environment, given that the operator generally controls those aspects of a feedlot's operations
related to discharge, nor were they convinced that such an approach would result in additional
corporate resources being directed toward environmental compliance, given the integrator's
ability to pass on any additional costs it might incur as a result of co-permitting to the operator.
A few SERs, who were not themselves involved in a contractual relationship with a larger
155
-------
corporate entity, favored co-permitting as a way of either leveling the playing field between
contact and independent operators, or extracting additional compliance resources from corporate
entities. Despite general concern over co-permitting due to the economic implications for the
contractor, several SERs voiced their support for placing shared responsibility for the manure on
the integrators, especially in the swine sector.
The Panel did not reach consensus on the issue of co-permitting. On the one hand, the
Panel shared the SER's concern that co-permitting not serve as a vehicle through which the
bargaining power and profits of small contract growers are further constrained with little
environmental benefit. On the other, the Panel believed that there is a potential for
environmental benefits from co-permitting. For example, the Panel noted (as discussed above),
that co-permitted integrators may be able to coordinate manure management for growers in a
given geographic area by providing centralized treatment, storage, and distribution facilities,
though the Panel also pointed out that this could happen anyway through market mechanisms
without co-permitting if it resulted in overall cost savings. In fact, the Agency is aware of
situations where integrators do currently provide such services through their production
contracts. The Panel also noted that co-permitting could motivate corporate entities to oversee
environmental compliance of their contract growers, in order to protect themselves from potential
liability, thus providing an additional layer of environmental oversight
The Panel also expressed concern that any co-permitting requirements may entail
additional costs, and that co-permitting can not prevent these costs from being passed on to small
operators, to the extent that corporate entities enjoy a bargaining advantage during contract
negotiations. The Panel thus recommended that EPA carefully consider whether the potential
benefits from co-permitting warrant the costs, particularly in light of the potential shifting of
these costs from corporate entities to contract growers. The Panel further recommended that if
EPA does propose any form of co-permitting, it address in the preamble both the environmental
benefits and any economic impacts on small entities that may result and request comment on its
approach.
As discussed in Section VI, EPA estimates that 94 meat packing plants that slaughter
hogs and 270 poultry processing facilities may be subject to the proposed co-permitting
requirements. EPA expects that no meat packing or processing facilities in the cattle and dairy
sectors will be subject to the proposed co-permitting requirements. Reasons for this assumption
are summarized in Section VI of this preamble. Additional information is provided in Section 2
of the Economic Analysis. EPA is seeking comment on this assumption as part of today's notice.
EPA did not precisely estimate the costs and impacts that would accrue to individual co-
permittees. Information on contractual relationships between contract growers and processing
firms is proprietary and EPA does not have the necessary market information and data to conduct
such an analysis. Market information is not available on the number and location of firms that
contract out the raising of animals to CAFOs and the number and location of contract growers,
and the share of production, that raise animals under a production contract. EPA also does not
156
-------
have data on the exact terms of the contractual agreements between processors and CAFOs to
assess when a processor would be subject to the proposed co-permitting requirements, nor does
EPA have financial data for processing firms or contract growers that utilize production
contracts.
EPA, however, believes that the framework used to estimate costs to CAFO does provide
a means to evaluate the possible upper bound of costs that could accrue to processing facilities in
those industries where production contracts are more widely utilized and where EPA believes the
proposed co-permitting requirements may affect processors. The details of this analysis are
provided in Section X..F.2. Based on the results of this analysis, EPA estimates that the range of
potential annual costs to hog processors is $135 million to $306 million ($1999, pre-tax). EPA
estimates that the range of potential annual costs to broiler processors as $34 million to $117
million, EPA is soliciting comment on this approach.
This approach does not assume any addition to the total costs of the rule as a result of co-
permitting, yet it does not assume that there will be a cost savings to contract growers as result of
a contractual arrangement with a processing firm. This approach merely attempts to quantify the
potential magnitude of costs that could accrue to processors that may be affected by the co-
permitting requirements. Due to lack of information and data, EPA has not analyzed the effect of
relative market power between the contract grower and the integrator on the distribution of costs,
nor the potential for additional costs to be imposed by the integrator's need to take steps to
protect itself against liability and perhaps to indemnify itself against such liability through its
production contracts. EPA has also not specifically analyzed the environmental effects of co-
permitting.
EPA recognizes that some industry representatives do not support assumptions of cost
passthrough from contract producers to integrators, as also noted by many small entity
representatives during the SBREFA outreach process as well as by members of the SBAR Panel.
These commenters have noted that integrators have a bargaining advantage in negotiating
contracts, which may ultimately allow them to force producers to incur all compliance costs as
well as allow them to pass any additional costs down to growers that may be incurred by the
processing firm. EPA has conducted an extensive review of the agricultural literature on market
power in each of the livestock and poultry sectors and concluded that there is little evidence to
suggest that increased production costs would be prevented from being passed on through the
market levels. This information is provided in the docket.
EPA requests comments on its cost passthrough assumptions in general and as they relate
to the analysis of processor level impacts under the proposed co-permitting requirements. EPA
will give full consideration to all comments as it decides whether to include the proposed
requirement for co-permitting of integrators in the final rule, or alternately whether to continue to
allow this decision to be made on a case-by-case basis by local permit writers. Several other
alternatives to co-permitting are discussed below. EPA also requests comment on how to
157
-------
structure the co-permitting provisions of the rule making to achieve the intended environmental
outcome without causing negative impacts on growers, should it decide to finalize them.
Alternatives to Co-Permitting
EPA also considered alternative approaches under which EPA would waive the co-
permitting requirement for States and processors that implement effective programs for
managing excess manure and nutrients. One such approach would require the disposition of
manure that is transported off-site to remain the joint responsibility of the processor and other
permit holders, unless an enforceable state program controls the off-site land application of
manure. For example, if the State program addressed the off-site land application of manure with
PNP development and implementation requirements that are equivalent to the requirements in 40
CFR 412.13(b)(b) and 122.23(j)(2), it would not be necessary to permit the processor in order to
ensure the implementation of those requirements.
Another approach would be based on whether the processor has developed an approved
Environmental Management System (EMS) that is implemented by all of its contract producers
and regularly audited by an independent third party. EPA anticipates that the alternative program
would be designed to achieve superior environmental and public health outcomes by addressing
factors beyond those required in this proposed regulation, such as odor, pests, etc. The following
section describes the principles of such a system.
Environmental Management System as Alternative to Co-Permitting
An increasing number of organizations, in both the private and public sector, are using
environmental management systems (EMS) as a tool to help them not only comply with
environmental legal requirements, but also address a full range of significant environmental
impacts, many of which are not regulated. Environmental management systems include a series
of formal procedures, practices, and policies that allow an organization to continually assess its
impacts on the environment and take steps to reduce these impacts over time, providing an
opportunity and mechanism for continuous improvement. EMSs do not replace the need for
regulatory requirements, but can complement them and help organizations improve their overall
environmental performance. EPA supports the adoption of EMSs that can help organizations
improve their compliance and overall performance and is working with a number of industries to
help them adopt industry-wide EMS programs.
Under this alternative, EPA would not require a processor to be co-permitted with their
producers if the processor has developed, in conjunction with its contract producers, an EMS
program that is approved by the permit authority and EPA, including opportunities for review
and comment by EPA and the public. The EMS would identify the environmental planning and
oversight systems, and critical management practices expected to be implemented by all of the
processors' contract growers. Independent third-party auditors annually would verify effective
implementation of the EMS to the permit authority and integrator. If a processor agreed to
158
-------
implement such a program, and then one or more of its contract producers failed to meet these
requirements, the processor would remove animals from the contract producers farm, in a time
and manner as defined in the approved EMS, and not supply additional animals until the contract
producer is certified as being in compliance with the EMS by the third party auditor. Once the
animals have been removed, processors would not continue contractual relationships with
producers not capable or willing to meet the minimum requirements of the EMS. Processors
who fail the independent audit would be required to apply for an NPDES permit or be included
as a co-permittee on contract producers' permits.
Each permitted facility's EMS would also require that programs be in place to ensure that it
remained in compliance with its NPDES permit (if a permitted facility). For all contractors, the
EMS would address all activities that could have a significant impact on the environment,
including activities not subject to this proposed regulations. These best management practices
could be adapted to meet the particular needs of individual States, as appropriate.
To ensure consistency, contract growers and the processor would be required to be annually
audited by an independent third party. The permit authority would be expected to develop
criteria for the audit, including what constitutes acceptable implementation of the EMS by both
contract producers and the processor. Such an EMS would require contract producers to comply
with their NPDES permit (if a permitted facility) and to implement the terms of the EMS that
address manure management as well as other unregulated impacts like odor, pests, etc. Contract
producers would need to employ specific Best Management Practices (BMPs) when addressing
unregulated impacts and maintain specific records on their use. BMPs could be adapted to meet
the needs of a particular state or region.
The EMS would be required to be consistent with guidance developed by the processor and
approved by the permit authority and EPA. Processors would assume responsibility for
developing, in conjunction with contract producers, the proposed EMS as well as the proposed
third party auditing guidance, which would be subject to approval by the permit authority and
EPA. Further, the processors would facilitate implementation by their producers through
training and technical assistance.
Each facility's EMS would be required to successfully complete an audit conducted by an
independent third party organization approved by the permit authority. Facilities would also be
subject to annual follow up audits designed to determine if the EMS was in place and being
adequately implemented. Contractors would not continue contractual relationships with
producers that did not remain in compliance and did not continue to adequately implement their
EMSs, as determined by annual third party follow-up audits.
Each processor would be required to seek input from local stakeholders as it developed and
implemented its EMS. Further, information about EMS implementation, including audit results,
would be publicly available.
159
-------
Because geographic areas tend to be dominated by few processors, contract growers tend to
have limited choice in selecting with whom to have a production contract. Thus, EPA expects
that processors would provide economic and technical assistance to help contract producers
implement the EMS.
EPA sees potential benefits to this type of approach. Besides giving processors an incentive
to develop regional approaches to managing excess manure nutrients from CAFO generated
manure, it would involve the processors in ensuring that permittees meet their permit
requirements, thus relieving burden on the resources of permit authorities and EPA. Further, an
EMS goes beyond what NPDES requires, in that it addresses issues beyond the scope of this
rulemaking, such as odor, pests, etc., and, most important, it will address manure generated by all
CAFOs as well as all AFOs under contract with the processors. Finally, this approach will
provide local stakeholders with important information about the operations of producers and give
these stakeholders meaningful opportunities to provide input to the facility on its operations
throughout the permitting and EMS development process.
On the other hand, an EMS approach could be more difficult to administer and enforce.
Some also question whether it would be appropriate to impose the requirements of an EMS on
independent growers or AFO operators who trade with the processors, but who are not subject to
this regulation. Further, it could be a concern that a producer might, seemingly arbitrarily, refuse
resources to assist with implementing the EMS, and then subsequently withholding animals from
the grower and effectively terminating the contract.
EPA solicits comment on whether EPA should provide an option for States to develop an
alternative program for addressing excess manure in lieu of requiring co-permitting. EPA also
requests comment on the EMS concept described in detail in this proposal.
6. How Does EPA Propose to Regulate Point Source Discharges at AFOs
That Are Not CAFOs?
EPA is proposing to clarify in today's proposed rulemaking that all point source
discharges from AFOs are covered by the NPDES regulations even if the facility is not a CAFO
(except for certain discharges composed entirely of storm water, as discussed below). See
proposed §122.23(g).
The definition of point source in the CWA and regulations lists both discrete conveyances
(such as pipes and ditches) and CAFOs. CWA § 502(14); 40 CFR 122.2. EPA wants to confirm
as explicitly as possible that the NPDES regulatory program applies to both types of discharges.
Thus, where an AFO is not a CAFO (either because it has not met the definition criteria or has
not been designated) discharges from the AFO are still regulated as point source discharges under
the NPDES program if the discharge is through a discrete conveyance that would qualify itself as
a point source. An AFO is not excluded from the NPDES regulatory program altogether simply
160
-------
because it is not a CAFO. That is, if an AFO has a point source discharge through a pipe, ditch,
or any other type of discernible, confined and discrete conveyance, it is subject to NPDES
requirements just the same as any other facility that has a similar point source discharge and that
is not an AFO.
Today's proposal would clarify that, even though an AFO is not a CAFO, an AFO may
nevertheless require an NPDES permit due to discharges from a point source at the facility. See
proposed §122.23(g). More specifically, under existing regulation and today's proposal, an AFO
may be subject to regulation under the Clean Water Act in any of the following ways:
(1) Non-storm water discharges. A non-storm water discharge of pollutants from a point source,
such as a ditch, at the production area or land application area of an AFO, into waters of the U.S.
is a violation of the CWA unless the owner or operator of the facility has an NPDES permit for
the discharge from that point source (as discussed further below); or
(2) Storm water discharges. A discharge from a point source, such as a ditch, at the land
application area of an AFO that does not qualify for the agricultural storm water discharge
exemption may be designated as a regulated storm water point source under §122.26(a)(l)(v),
and, therefore, require an NPDES permit. The agricultural storm water exemption is discussed
further in the following section D; or
(3) pi sen arge as a CAJFO. An AFO may be designated as a CAFO and, therefore, require an
NPDES permit on that basis (as discussed in the section on designation).
In addition to listing "physical" conveyances (such as pipes and ditches), the definition of
point source in the CWA and EPA's regulations identifies CAFOs as a point source. CWA
§502(14); 40 CFR 122.2. Because all CAFOs are point sources, even surface run off from a
CAFO that is not channelized in a discrete conveyance is considered a point source discharge
that is subject to NPDES permit requirements. AFOs, on the other hand, are not defined as point
sources. Because of that, under today's proposal, AFOs will be subject to NPDES permitting
requirements if they have a point source discharge including under the circumstances described
above.
First, today's proposal states clearly that an AFO which has a discharge of pollutants
through a point source, such as a pipe or ditch, at either the production area or the land
application area, to the waters of the United States which is not the direct result of precipitation is
in violation of the Clean Water Act. See proposed §122.23(g). The existing regulations are
silent and some AFO operators have argued mat none of their discharges can be considered point
source discharges unless their AFO is defined or designated as a CAFO under 40 CFR 122.23.
Today's proposal would make it clear that certain discharges at AFOs are subject to NPDES
requirements and no designation by the permitting authority is required. For example, if the
operator of an AFO with less than 500 animal units (in the two-tier structure) or less than 300
161
-------
animal units (in the three-tier structure) empties its lagoon via a pipe directly into a stream
without an NPDES permit, that would be a violation of the Clean Water Act.
Second, today's proposal clarifies that a storm water discharge composed entirely of
storm water from a point source at the land application area of an AFO into waters of the U.S.
requires an NPDES permit if: 1) the discharge does not quality for the agricultural storm water
discharge exemption, discussed below; and 2) it is designated as a regulated storm water point
source. Generally, all point source discharges are prohibited unless authorized by an NPDES
permit. Section 402(p) of the Clean Water Act exempts certain storm water discharges from that
general prohibition. Section 402(p)(2)(E) and the EPA regulations that implement Section
402(p)(6) provide for regulation of unregulated point sources on a case by case basis upon
designation by EPA or the State permitting authority (40 CFR 122.26(a)(l)(v)).
EPA considered proposing that only 40 CFR 122.23 may be used to designate an AFO
based on discharges from its land application area. Designation as a CAFO, however, could
unnecessarily subject the AFO's production area to NPDES permit requirements. Also, because
the land application area of third party applicators of manure may be designated using .
122.26(a)(l)(v), EPA is proposing that AFO controlled land application areas could also be
designated under that section, even if the AFO has not been designated as a CAFO. AFOs may
be required to get a permit based on storm water discharges from their production areas only if
they have been designated as a CAFO under §122.23.
An AFO operator is not required to obtain a permit for a point source discharge at the
land application area which consists entirely of storm water, and which does not qualify for the
agricultural storm water discharge exemption, unless the point source has been designated under
40 CFR 122.26(a)(l)(v). A discharge consists entirely of storm water if it is due entirely to
precipitation. It may include incidental pollutants that the storm water picks up while crossing
the facility. The discharge would not consist entirely of storm water if, for example, a non-storm
water (e.g., process waste water) discharge occurs during the storm and is mixed with the storm
water. Once a permit authority has determined that a point source discharge from the land
application area of an AFO is not composed entirely of storm water and does not qualify for the
agricultural storm water discharge exemption, the permit authority may designate that point
source as a regulated storm water point source if the permit authority further determines under 40
CFR 122.26(a)(l)(v) that the discharge contributes to a violation of a water quality standard or is
a significant contributor of pollutants to waters of the U.S.
Designation under §122.26 is separate from the designation of an operation as a CAFO.
The criteria for designation as a CAFO based on discharges from either the land application or
the production area are discussed above in C.4.
D. Land Application of CAFO-generated Manure
162
-------
1. Why is EPA Regulating Land Application of CAFO-generated
Manure?
As discussed in Section IV.B of this preamble, agricultural operations, including animal
production facilities, are considered a significant source of water pollution in the United States.
The recently released National Water Quality Inventory indicates that agriculture is the leading
contributor of identified water quality impairments in the nation's rivers and streams, as well as
in lakes, ponds, and reservoirs. Agriculture is also identified as a major contributor to identified
water quality impairments in the nation's estuaries.
Pollutant discharges from CAFOs arise from two principal routes. The first route of
discharges from CAFOs is from manure storage or treatment structures, especially catastrophic
failures, which cause significant volumes of often untreated manure and wastewater to enter
waters of the U.S. resulting in fish kills. The second route of pollutant discharges is from the
application of manure to land, usually for its fertilizer value or as a means of disposal.
Additional information oh how pollutants from CAFOs reach surface waters is provided in
Section V.B of this document and in the rulemaking record.
The proposed regulation seeks to improve control of discharges that occur from land
applied manure and wastewater. Analysis conducted by USDA indicates that, in some regions,
the amount of nutrients present in land applied manure has the potential to exceed the nutrient
needs of the crops grown in those regions. Actual soil sample information compiled by
researchers at various land grant universities provides an indication of areas where there is
widespread phosphorus saturation. Other research by USDA documents the runoff potential of
land applied manure under normal and peak precipitation. Furthermore, research from a variety
of sources indicates that there is a high correlation between areas with impaired lakes, streams
and rivers due to nutrient enrichment and areas where there is dense livestock and poultry
production. This information is documented in the Technical Development Document,
Additional information is available in the Environmental Assessment of the Proposed Effluent
Limitations Guidelines for Concentrated Animal Feeding Operations and other documents that
support today's rulemaking.
2. How is EPA Interpreting the Agricultural Storm water Exemption
with Respect to Land Application of CAFO-generated Manure?
Today, EPA is proposing to define the term "agricultural stormwater discharge" with
respect to land application of manure and wastewater from animal feeding operations. Section
502(14) of the Clean Water Act excludes "agricultural stormwater discharges" from the
definition of the term point source. The Clean Water Act does not further define the term, and
the Agency has not formally interpreted it. Under today's proposal, an "agricultural stormwater
discharge" would be defined as "a discharge composed entirely of storm water, as defined in 40
CFR 122.26(a)(13), from a land area upon which manure and/or wastewater from an animal
feeding operation or concentrated animal feeding operation has been applied in accordance with
163
-------
proper agricultural practices, including land application of manure or wastewater in accordance
with either a nitrogen-based or, as required, a phosphorus-based manure application rate."
§ 122.23(a)(l).
The CWA defines a point source as: "any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged. The term does not include agricultural
stormwater discharges and return flows from irrigated agriculture." 33 U.S.C. § 1362(14).
Congress added the exemption from the definition of point source for "agricultural stormwater
discharges" in the Water Quality Act of 1987. There is limited legislative history for this
provision; Congress simply stated that the "provision expands the existing exemption for return
flows from irrigated agriculture to include agricultural stormwater discharges." Legislative
History of the Water Quality Act of 1987.100* Cong., 2d. Sess. at 538 (1988).
The courts have found that the EPA Administrator has the discretion to define point and
nonpoint sources. NRDC \. Costle. 568 F.2d 1369,1382 (D.C. Cir. 1977). EPA is proposing to
exercise that discretion by defining the exemption for "agricultural stormwater discharges" to
include only those discharges that (1) are composed entirely of storm water; and, (2) occur only
after the implementation of proper agricultural practices.
EPA believes the first component is clear on the face of the statute. Only discharges that
result from precipitation can qualify for an agricultural storm water discharge exemption.
Therefore, the addition of pollutants as a result of a discharge from a point source to waters of the
United States that is not due to precipitation is a violation of the Clean Water Act (except in
compliance with an NPDES permit). For example, the application of CAFO manure onto a field
in quantities that are so great that gravity conveys the manure through a ditch even in dry weather
into a nearby river would not be eligible for the exemption for agricultural storm water
discharges. Furthermore, it is possible for a discharge to occur during a precipitation event yet
not be considered to be "composed entirely of stormwater." As the Second Circuit found, a
discharge during a storm could be "primarily caused by the over-saturation of the fields rather
than the rain and—sufficient quantities of manure were present so that the run-off could not be
classified as 'stormwater'." CARE v. Southview Farms. 34 f. 3d 114,121 (Sept. 2,1994).
Second, EPA is proposing that to be eligible for the exemption for agricultural storm
water, any addition of manure and/or wastewater to navigable waters must occur despite the use
of proper agricultural practices. EPA interprets the statute to reflect Congress' intent not to
regulate additions of manure or wastewater that are truly agricultural because they occur despite
the use of proper agricultural practices. Application of manure or wastewater that is not
consistent with proper rates and practices such that there are adverse impacts on water quality
would be considered waste disposal rather than agricultural usage. In today's action, EPA is
proposing to interpret the term "proper agricultural practices" to incorporate the concept of
protecting water quality. This is consistent with USDA's Technical Guidance for Developing
164
-------
Comprehensive Nutrient Management Plans, which states that: "ft]he objective of a CNMP is to
provide AFO owners/operators with a plan to manage generated nutrients and by-products by
combining conservation practices and management activities into a system that, when
implemented, will protect or improve water quality." EPA believes that proper agricultural
practices do encompass the need to protect water quality. While EPA recognizes that there may
be legitimate agricultural needs that conflict with protecting water quality in some instances,
EPA believes that its proposed definition of proper agricultural practices strikes the proper
balance between these objectives. Since one focus of agricultural management practices,
whether through guidance or regulation, at the state or federal level, is the minimization of water
quality impacts, and since this is of particular concern to EPA, the Agency is proposing a
definition of "agriculture" for Clean Water Act purposes which would be flexible enough so that
an assessment of the actual impacts of a discharge of animal waste on a specific waterbody could
be factored in. Today's proposal identifies the proper agricultural practices which land appliers
seeking to qualify for the agricultural storm water discharge exemption would need to
implement. In addition, if a permit authority determined that despite the implementation of the
practices identified in today's proposal, discharges from the land application area of a CAFO
were having an impact on water quality, the permit writer would need to impose additional
agricultural practice requirements to mitigate such impacts. Only discharges that occur despite
the implementation of all these proper agricultural practices would be considered "agricultural
stormwater discharges" and be eligible for the exemption. EPA requests comment on this
interpretation of the agricultural storm water exemption and on the proposal to define proper
agricultural practice.
For CAFOs which land apply their manure, the Agency is proposing to require that
owners or operators implement specific agricultural practices, including land application of
manure and wastewater at a specified rate, development and implementation of a Permit Nutrient
Plan, a prohibition on the application of CAFO manure or wastewater within 100 feet of surface
water, and, as determined to be necessary by the permit authority, restrictions on application of
manure to frozen, snow covered or saturated ground. See proposed §§ 412.3l(b) and 412.37;
§122.21(j). The Agency is proposing to require these specific agricultural practices under its
CWA authority both to define the scope of the agricultural storm water discharge exemption and
to establish the best available technology for specific industrial sectors. Given the history of
improper disposal of CAFO waste and Congress' identification of CAFO's as point sources, the
Agency believes it should clearly define the agricultural practices which must be implemented at
CAFOs.
EPA considered limiting the scope of the proper agricultural practices necessary to
qualify for the agricultural storm water discharge exemption to those specified in the effluent
guideline and NPDES regulations with no flexibility for the permit authority to consider
additional measures necessary to mitigate water quality impacts. EPA chose not to propose this
option because EPA was concerned that permit authorities would then be unable to include any
additional permit conditions necessary to implement Total Maximum Daily Loads in impaired
watersheds. EPA seeks comment on this option and other ways to address this concern.
165
-------
The Agency is proposing to allow AFO owners or operators who land apply manure
(either from their own operations or obtained from CAFOs) and more traditional, row crop
farmers who land apply manure obtained from CAFOs to qualify for the agricultural storm water
exemption as long as they are applying manure and wastewater at proper rates. As discussed in
VH.B, under one of today's co-proposed options, CAFOs that transfer manure to such recipients
would be required to obtain a letter of certification from the recipient land applier that the
recipient intends to determine the nutrient needs of its crops based on realistic crop yields for its
area, sample its soil at least once every three years to determine existing nutrient content, and not
apply the manure in quantities that exceed the land application rates calculated using either the
Phosphorus Index, Phosphorus Threshold, or Soil Test Phosphorus method as specified in 40
CFR 412.13(b)(l)(iv). For purposes of the CAFO's permit, recipient land appliers need not
implement all of the- proper agricultural practices identified above which CAFOs would be
required to implement at their own land application areas. EPA believes that this proposal
enables the Agency to implement Congress' intent to both exclude truly agricultural discharges
due to storm water and regulate the disposition of the vast quantities of manure and wastewater
generated by CAFOs. -
EPA considered defining the agricultural storm water discharge exemption for non-
CAFO land appliers to apply only to those discharges which occurred despite the implementation
of all the practices required by today's proposal at CAFO land application areas. EPA could
require a more comprehensive set of practices for land appliers of CAFO manure and wastewater
to qualify for the agricultural storm water discharge exemption. Under any definition of proper
agricultural practices, a recipient who failed to implement the required practices and had a
discharge through a point source into waters of the U.S. could be designated as a regulated storm
water point source. However, that recipient would not be vulnerable to enforcement under the
Clean Water Act for discharges prior to designation, and could only be designated as a point
source if the permitting authority (or EPA in authorized States) found that the conditions of 40
CFR 122.26(a)(l)(v) were met. See discussion below. EPA is requesting comment on this
option.
Whether a discharger (who would otherwise be ineligible for the agricultural storm water
discharge exemption) is subject to the Clean Water Act permitting requirements varies, because
of the complex interaction among the agricultural storm water discharge exemption, the
definition of "point source," and other storm water discharge provisions. The next sections
clarify EPA's intentions with regard to such regulation.
3. How is EPA Proposing to Regulate Discharges from Land Application
of CAFO-generated Manure by CAFOs?
In today's action, EPA is proposing that the entire CAFO operation (e.g. the
feedlot/production area and the land application areas under the operational control of a CAFO
owner or operator) is subject to the revised effluent limitations guideline and the revised NPDES
permitting regulation. See proposed §122.23(a)(2). Also, as discussed above, EPA is proposing
166
-------
to interpret the CWA to allow CAFO land application areas to be eligible for the agricultural
storm water discharge exemption. However, unless the CAFO could demonstrate that it has
absolutely no potential to discharge from the production area and the land application area, the
facility would be required to apply for an NPDES permit. See proposed §122.23(e). While EPA
is proposing to interpret the terms of the statute such that CAFOs may qualify for the agricultural
storm water exemption, EPA is also proposing that such CAFOs must apply for a permit even if
the CAFO's only discharges may potentially qualify for the agricultural storm water discharge
exemption. EPA is proposing such a requirement because it has the authority to regulate point
source discharges and any discharge from the land application area of a CAFO which is not
agricultural storm water is subject to the Clean Water Act. EPA believes that the only way to
ensure that all nonagricultural, and therefore point source, discharges from CAFOs are permitted
is to require that CAFOs apply for NPDES permits which will establish effluent limitations based
on proper agricultural practices.
As noted above, the CWA explicitly defines the term "point source" to include CAFOs,
and explicitly excludes agricultural storm water discharges. In today's action, EPA is attempting
to interpret both provisions in a way that establishes meaningful controls over a significant
source of pollution in our Nation's waters. EPA is proposing to interpret the definition of "point
source" such that the exclusion of "agricultural stormwater discharges" may be an exclusion
from any and all of the conveyances listed in the definition of "point source," including
"concentrated animal feeding operations." The production area of the CAFO would continue to
be ineligible for the agricultural storm water discharge exemption because it involves the type of
industrial activity that originally led Congress to single out concentrated animal feeding
operations as point sources. However, the land application areas under the operational control of
the CAFO, where CAFO manure or wastewater is appropriately used as a fertilizer for crop
production, appear to have the kind of agricultural activity that Congress intended to exempt.
Consequently, EPA proposes to interpret the CWA so that its authority to regulate discharges of
CAFO manure due to precipitation from land application areas is used in a way that ensures that
any discharge is the result of agricultural practices. Any such discharges would be from the
CAFO and, therefore, no separate, confined and discrete conveyance need be present.
Under today's proposal, permit writers would establish effluent limits for land application
areas in the form of rates and practices that constitute proper agricultural practices to the extent
necessary to fulfill the requirements of the effluent guidelines or based on BPJ, as well as to the
extent necessary to ensure that a CAFO's practices are agricultural in that they minimize the
operation's impact on water quality.
As noted above, EPA believes the statute does not directly address the interaction
between the specific listing of "concentrated animal feeding operations" and the specific
exemption of "agricultural stormwater discharges" in the definition of "point source." While
EPA is proposing to interpret the Act to allow the land application areas of CAFOs to be eligible
for the agricultural storm water discharge exemption, EPA is considering an interpretation of the
Act under which all additions of pollutants associated with CAFOs could be regulated as "point
167
-------
source" discharges, and, thus, the agricultural storm water exemption would never apply to
discharges from a CAFO. By singling out "concentrated animal feeding operations," a far more
specific conveyance reference compared to the other, more general, terms in the definition of
"point source" (such as "ditch," "channel," and "conduit"), Congress may have intended the
addition of pollutants to waters of the United States from these facilities to be considered
"industrial" and not "agricultural" discharges. As such, the tremendous amount of manure and
wastewater generated by CAFOs could be considered industrial waste. Thus, any discharge, even
if caused by storm water after land application of the manure could be considered a discharge
"associated with industrial activity" under the statute's storm water discharge provisions.
EPA is soliciting comments on four additional approaches under which the agricultural
storm water exemption would not apply to CAFOs. Each of these approaches would require that
all CAFO permits restrict discharges from land application sites to the extent necessary to
prevent them from causing or contributing to a water quality impairment.
First, EPA is soliciting comment on an alternate approach that would regulate CAFO
waste as "process waste" that is not eligible for the agricultural storm water exemption, when it
is applied on land that is owned or controlled by the CAFO owner or operator, because it is
industrial process waste and therefore not agricultural. Any storm water associated discharges
would be regulated under the existing storm water statutory provisions and EPA's implementing
regulations. Under that approach, in addition to the requirements in the proposed effluent
limitation guideline, the NPDES permit issued to the CAFO operator would include any
additional limitations necessary to protect water quality.
Second, EPA solicits comment on classifying discharges from land application sites as
discharges regulated under "Phase I" of the NPDES storm water program (CWA Section
402(p)(2)(B)). EPA's existing storm water regulations already identify discharges from land
application sites that receive industrial wastes as a "storm water discharge associated with
industrial activity." 40 CFR 122.26(b)(14)(v). Under the storm water regulation, EPA does not
currently interpret that category (i.e., storm water discharge associated with industrial activity) to
include land application of CAFO manure because the Agency did not assess the cost of such
regulation when it promulgated the rule. With today's proposal, however, EPA has calculated the
cost of proper land application of CAFO-generated manure and wastewater and could clarify that
precipitation-induced discharges from land application areas are subject to the storm water
discharge regulations. If EPA finalizes a definition of CAFO which includes the land application
area, then EPA could also regulate any storm water discharges from CAFOs under its existing
regulations as a storm water discharge associated with industrial activity because facilities
subject to storm water effluent guidelines are considered to be engaging in "industrial activity."
40 CFR 122.26 (b)(14)(i). EPA would have to conclude that no discharges from CAFO land
application areas qualify for the agricultural storm water discharge exemption, even discharges
which occur despite implementation of proper agricultural practices.
168
-------
Third, EPA could consider discharges from the CAFO's land application area to be
discharges of "process wastewater," and, therefore, not "composed entirely of stormwater/'
rendering the statutory storm water provisions entirely inapplicable. Under this alternate
interpretation of the statutory terms, NPDES permit provisions for the CAFO, including both the
production area and the land application area, could include both technology-based limits and
any necessary water quality-based effluent limits.
Fourth, EPA could clarify that once a facility is required to be permitted because it is a
CAFO, the agricultural storm water discharge exemption no longer applies to the land
application area subject to the permit. Thus, all permit conditions, including a water quality-
based effluent limitation, could be required on both the production area and the land application
area.
EPA is also requesting comment on whether the land application practices established
under the effluent guidelines will be sufficient to ensure that there will be little or no discharge
due to precipitation from CAFO land application areas. If there were no such discharges, then
EPA wouldn't need to adopt any of the four alternative approaches described above, because the
effluent guidelines requirements would protect water quality. If there would be significant run-
off even when manure is applied in accordance with agricultural practices, EPA is requesting
comment on the extent and the potential adverse water quality impacts from that increment.
4. How is EPA Proposing to Regulate Land Application of Manure and
Wastewater by non-CAFOs?
In some instances, CAFO owners or operators transport their manure and/or wastewater
off-site. If off-site recipients land apply the CAFO-generated manure, they may be subject to
regulation under the Clean Water Act. In addition, AFOs may land apply their own manure and
wastewater, and they too may be subject to regulation under the Clean Water Act. A land applier
could be subject to regulation if: (1) its field has a point source, as defined under the Act, through
which (2) a discharge occurs that is not eligible for the agricultural storm water exemption, and
(3) the land applier is designated on a case-by-case basis as a regulated point source of storm
water. 40 CFR § 122.26(a)(l)(v). EPA notes that under the three-tier structure, an AFO with
between 300 AU and 1,000 AU which has submitted a certification that it does not meet any of
the conditions for being CAFO, and therefore does not receive an NPDES permit, would be
immediately subject to enforcement and regulation under the Clean Water Act if it has a
discharge which is not subject to the agricultural storm water discharge exemption; EPA and the
State do not need to designate such a facility as either a CAFO or as a regulated storm water
point source.
With this proposal, EPA intends to give effect to both the agricultural storm water
discharge exemption and the other storm water provisions of the Clean Water Act by subjecting
to regulation a non-CAFO land applier of AFO and/or CAFO-generated manure and wastewater
only if: (1) the discharge is not eligible for the agricultural storm water discharge exemption
169
-------
(which, as discussed above, for AFOs and other non-CAFO land appliers primarily consists of
applying the manure in accordance with proper agricultural practice, including soil test, P [
threshold, or Phosphorus Index methods); and (2) a conveyance at the land applier's operation j
has been designated as a regulated storm water point source. EPA emphasizes again that this I
regulatory approach is relevant only to discharges which are composed entirely of storm water. If j
it is not due to precipitation, a discharge of manure or wastewater through a point source, such as !
a ditch, into the waters of the U.S. need not be designated to be subject to enforcement and !'
regulation under the Clean Water Act, as discussed in Section VHC.6 of today's proposal.
In addition, the Director (or Regional Administrator) could exercise his or her authority to
designate such dischargers within a geographic area as significant contributors of pollution to
waters of the United States. 40 CFR 122.26(a)(9)(i)(D). The geographic area of concern could
be a watershed which is impaired for the pollutants of concern in CAFO waste. To do so, the
Director (or Regional Administrator) would need to identify the point source at each land
application area or provide a record for presuming that the land application areas in that
watershed have point sources, and the designation would only apply to those that do.
As noted above, case-by-case designation of point sources at land application areas which
are not under the control of a CAFO owner or operator can already occur under existing
regulations. Under section 122.26(a)(l)(v), either the permitting authority or EPA may designate
a discharge which he or she determines contributes to a violation of a water quality standard or is
a significant contributor of pollutants to waters of the U.S. EPA is soliciting comment on
whether to clarify the term "significant contributor of pollutants" for the purposes of designating
a discharge of manure and/or wastewater. If a land applier is applying manure and/or wastewater
such that he or she is not eligible for the agricultural storm water discharge exemption and if the
receiving waterbody (into which there are storm water discharges associated with manure and/or
wastewater) is not meeting water quality standards for a pollutant in the waste (such as
phosphorus, nitrogen, dissolved oxygen or fecal coliform), then EPA could propose that, by
regulation, such a discharge constitutes a "significant contributor of pollutants." For example, if
a land applier is applying manure and/or wastewater at a rate above the rate which qualifies the
recipient for the agricultural storm water discharge exemption, and if, due to precipitation, waste
runs off the land application area through a ditch into a navigable water that is impaired due to
nutrients, then the permit authority may designate that point source as a regulated storm water
point source. The designee would then need to apply for an NPDES permit or risk being subject
to enforcement for unpermitted discharges.
EPA solicits comment on the proposed means of ensuring that manure and wastewater
from AFOs and CAFOs is used in an environmentally appropriate manner, whether on-site at the
CAFO or AFO or off-site outside of the control of the CAFO operator.
170
-------
E. What are the Terms of an NPDES Permit?
EPA is proposing to include several new requirements in the NPDES permit for CAFOs
See proposed §122.23(1). As discussed in section Vffl on the proposed effluent guidelines, EPA
is proposing to require all CAFO operators to develop and implement a Permit Nutrient Plan,
which is a site-specific plan for complying with the effluent limitations requirements contained in
the NPDES permit. EPA is proposing to require permit authorities to develop special conditions
for each individual or general NPDES permit that address: 1) development of the allowable
manure application rate; and 2) timing and method for land applying manure. Permits would
also include a special condition that clarifies the duty to maintain permit coverage until the
facility is properly closed.
NPDES permits are comprised of seven sections: cover page; effluent limitations;
monitoring and reporting requirements; record keeping requirements; special conditions; and
standard conditions, discussed below.
1. What is a Permit Nutrient Plan (PNP) and What is the difference
between USDA's CNMP and EPA's PNP?
EPA is proposing to require all CAFO operators to develop and implement a Permit
Nutrient Plan, or PNP. See proposed §412.3 l(b)(l)(i)(iv) and §122.23(k)(4). The PNP is a site-
specific plan that describes how the operator intends to meet the effluent discharge limitations
and other requirements of the NPDES permit. Because it is the primary planning document for
determining appropriate practices at the CAFO, EPA is also proposing to require that it be
developed, or reviewed and modified, by a certified planner. The PNP must be developed within
three months of submitting either a notice of intent for coverage under an NPDES general permit,
or an application for an NPDES individual permit.
EPA is proposing to include a permit requirement for the CAFO to develop and
implement a PNP and modify it when necessary. EPA believes this approach will maintain
flexibility for modifications as the agricultural practices of the CAFO change. PNPs are intended
to be Jiving documents that are updated as circumstances change. Formal permit modification
procedures would not have to be followed every time the PNP was modified.
As described in section Vffl of today's proposed revisions to the effluent guidelines,
CAFO operators would be required to prepare a PNP that establishes the allowable manure
application rate for land applying manure and wastewater, and that documents how the rate was
derived. The plan would also address other site-specific conditions that could affect manure and
wastewater application. It would also describe sampling techniques to be used in sampling
manure and soils, as well as the calibration of manure application equipment, and would describe
operational procedures for equipment at the production area.
171
-------
EPA is proposing to use the term "Permit Nutrient Plan" in today's proposed regulation
in order to have a separate and distinct term that applies solely to the subset of activities in a
CNMP that are directly connected with the effluent guideline and NPDES permit requirements,
which are related to the best available technology currently available. EPA expects that many
CAFOs will satisfy the requirement to develop a PNP by developing a Comprehensive Nutrient
Management Plan (CNMP). EPA recognizes that creating a new term has the potential to create
some initial confusion, and cause concern about overlapping or duplicative requirements.
However, EPA believes the term PNP more clearly articulates to the regulated community the
important distinctions between the broad requirements of a CNMP and the more specific effluent
guideline requirements for a PNP.
EPA invites comment on today's proposal to define PNPs as the subset of elements in the
CNMP that are written to meet the effluent guideline requirements. EPA is especially interested
in knowing whether PNP is the best term to use to refer to the regulatory components of the
CNMP, and whether EPA's explanation of both the differences and relationship between these
two terms (PNP and CNMP) is clear and unambiguous.
In the Unified National Strategy for Animal Feeding Operations, EPA and USD A agreed
that the development and implementation of CNMPs was the best way to minimize water quality
impairment from confinement facilities and land application of manure and wastewater. The
Strategy also articulated the expectation that all AFOs would develop and implement CNMPs,
although certain facilities (CAFOs) would be required to do so while others (AFOs) would do so
on a voluntary basis.
In December 2000, USDA published its Comprehensive Nutrient Management Planning
Technical Guidance (referred to here as the "CNMP Guidance"). Federal Register: December 8,
2000 (Volume 65, Number 237) Page 76984-76985. The CNMP Guidance is intended for use by
NRCS, consultants, landowners/operators, and others that will either be developing or assisting
in the development of CNMPs. USDA published the CNMP Guidance to serve only as a
technical guidance document, and it does not establish regulatory requirements for local, tribal,
State, or Federal programs. Rather, it is intended as a tool to support the conservation planning
process, as contained in the NRCS National Planning Procedures Handbook. The objective of
the CNMP technical guidance is to identify management activities and conservation practices
that will minimize the adverse impacts of animal feeding operations on water quality. The
CNMP Guidance provides a list of elements that USDA believes should be considered when
developing a CNMP. The strength of the CNMP Guidance is the breadth of conservation
practices and management activities that it recommends AFO operators should consider.
Initially, it was EPA's expectation to simply adopt USDA's voluntary program into its
NPDES permitting program. However, by intentionally avoiding establishing regulatory
requirements and limiting its role to that of technical guidance only, USDA's CNMP Guidance
lacks many of the details EPA believes are necessary to ensure discharges of manure and other
process wastewater are adequately controlled and nutrients applied to agricultural land in an ,
172
-------
acceptable manner. In addition, the CNMP Guidance addresses certain elements that address
aspects of CAFO operations that EPA will not include as a part of the effluent guidelines and
standards.
Nonetheless, it is important to ensure that the regulatory program that would be
established by the effluent guidelines and standards and NPDES permit regulations proposed
today is complementary to and leverages the technical expertise of USDA with its CNMP
Guidance, rather than present CAFO operators with programs that they might perceive as
contradictory. EPA believes this goal will be accomplished by the requirements being proposed
today. EPA is proposing that CAFOs, covered by the effluent guideline, develop and implement
a PNP that is narrower in scope than USDA's CNMP Guidance, but that establishes specific
actions and regulatory requirements.
One of the key differences between the effluent guideline PNP and USDA's CNMP is the
scope of elements included in each plan. USDA's CNMP includes certain aspects that EPA does
not require CAFO operators to address within the regulatory program. For example, element
4.2.2.1 of USDA's CNMP Guidance ("Animal Outputs • Manure and Wastewater Collection,
Handling, Storage, Treatment, and Transfer") tells operators that the CNMP should include
insect control activities, disposal of animal medical wastes, and visual improvement
considerations. Additionally, Element 4.2.2.1 of the CNMP Guidance ("Evaluation and
Treatment of Sites Proposed for Land Application ") states the CNMP should identify
conservation practices and management activities needed for erosion control and water
management. The regulations (and PNP) being proposed today include no such requirement.
EPA is not including conservation practices which control erosion as part of a PNP because
erosion control is not needed on all CAFO operations and because the costs associated with
controlling erosion would add $150 million dollars to the cost of this proposal. These elements
of a CNMP are, however, key components to protect water quality from excessive nutrients and
sediments. EPA solicits comment and data on the costs and benefits of controlling erosion and
whether erosion control should be a required component of PNPs.
There are a number of elements that are addressed by both the CNMP and PNP.
Examples of common elements include soil and manure analyses to determine nutrient content;
calibration of application equipment; developing nutrient budgets; and records of Plan
implementation. However, USDA's CNMP Guidance is indeed presented only as technical
guidance. The CNMP Guidance identifies a number of elements that AFOs should consider, but
there is no avenue for ensuring that AFOs implement any management practices or achieve a
particular performance standard. In contrast, EPA's proposed PNP would establish requirements
for CAFOs that are consistent with the technical guidance published by USDA experts, but that
go beyond that guidance by identifying specific management practices that must be implemented.
For example, EPA is proposing the effluent guidelines to require CAFOs to analyze soil
samples at least once every three years, and manure and lagoon samples at least annually.
40 CFR 412.37(a)(4)(ii). The CNMP Guidance addresses such analyses, but imposes no
173
-------
mandatory duty to perform such analyses, nor to conform to a particular monitoring frequency.
Given the degree to which overflows and catastrophic failures of lagoons have been due to poor
operation or maintenance of manure storage structures, EPA is proposing to establish specific
requirements under Sections 308 and 402 that would: (1) more precisely monitor lagoon levels to
prevent overflows that could be reasonably avoided; (2) require operators to periodically inspect
the structural integrity of manure handling and storage structures, and expeditiously take
corrective action when warranted; and (3) maintain records to ensure the proper operation and
maintenance of manure handling and storage structures. USDA's CNMP Guidance establishes
no such requirements.
The regulations proposed today would also require permit authorities to establish more
specific requirements for application of manure and wastewater to land, where appropriate,
including: how the CAFO operator is to calculate the allowable manure application rate; when it
is appropriate to apply manure to frozen, snow covered or saturated land; and facility closure.
a. How are PNPs Developed and What is the Role of Certified
Specialists?
Under today's proposed rule, CAFO .owners and operators would be required to seek
qualified technical assistance for developing PNPs to meet their effluent guidelines and NPDES
permit requirements. EPA is proposing that PNPs be developed, or reviewed and modified, by
certified planners. See proposed §412.3 l(b)(l)(ii).
Since PNPs are a defined subset of activities covered in CNMPs, as described above,
owners and operators are expected to take advantage of the same technical assistance that is
available for CNMP development, including appropriate Federal agencies, such as the NRCS,
State and Tribal agricultural and conservation agency staff, Cooperative Extension Service agents
and specialists, Soil and Water Conservation Districts, and Land Grant Universities. In addition,
there are a growing number of non-governmental sources of qualified technical assistance,
including integrators, industry associations, and private consultants who are certified to develop
CNMPs, as well as the defined subset of activities covered in PNPs. In addition to the help of
these experts, a growing number of computer-based tools are either available or under
development to facilitate development and implementation of CNMPs, and should be equally
useful for PNPs.
Although CAFO owners and operators are ultimately responsible for developing and
implementing effective PNPs, EPA is today proposing that PNPs be developed and/or reviewed
and approved by a certified specialist. A certified PNP specialist is a person who has a
demonstrated capability to develop CNMPs in accordance with applicable USDA and State
standards, as well as PNPs that meet the EPA effluent guideline, and is certified by USDA or a
USDA-sanctioned organization. Certified specialists include qualified persons who have
received certifications through a State or local agency, personnel from NRCS, certification
programs recognized as third party vendors of technical assistance, or other programs recognized
174
-------
by Slates. In addition, USDA is now deveJoping agreements with third-party vendors similar to
the 1998 agreement with the Certified Crop Advisors (CCAs) and consistent with NRCS
standards and specifications (or State standards if more restrictive). CCAs are expected to be
available to provide technical assistance to producers in nutrient management, pest management,
and residue management.
The purpose of using certified specialists is to ensure that effective PNPs are developed
and/or reviewed and modified by persons who have the requisite knowledge and expertise to
ensure that plans fully and effectively address the need for PNPs that meet the minimum effluent
guideline requirements in the NPDES permit, and that plans are appropriately tailored to the site-
specific needs and conditions at each CAFO.
EPA recognizes that some States already have certification programs in place for nutrient
management planning, and expects that the USDA and EPA guidance for AFOs and CAFOs will
provide additional impetus for new and improved State certification programs. These programs
provide an excellent foundation for producing qualified certified specialists for CNMPs, and can
be modified relatively easily to include a special module on how to develop an effective PNP as a
defined subset of activities in the CNMP. EPA expects that, as a result of experience gained in
the initial round of CAFO permitting under the existing regulations (2000 - 2005), certification
programs will be well equipped to deal with both CNMPs and PNPs by the time today's
regulations go into effect and States begin issuing the next round of CAFO permits that reflect
these regulations. Thus, PNPs won't be expected to be developed before 2005.
The issue of CNMP preparer requirements was also discussed by the SERs and SBAR
Panel during the SBREFA outreach process. (Note that at that time, EPA was still using the term
CNMP to apply to regulatory as well as voluntary nutrient management plans.) Several SERs
were concerned that requiring the use of a certified planner could significantly increase the cost
of plan development, as well as limit the operator's influence over the final product. These SERs
felt that, with adequate financial and technical assistance, they could write their own plans and
suggested that EPA work to facilitate such an option through expanded training and certification
of farmers and provision of a user-friendly computer program to aid in plan development.
The Panel recognized the need for plan preparers to have adequate training to write
environmentally sound plans, particularly for large operations. However, the Panel also
recognized the potential burden on small entities of having to use certified planners, especially
considering the large number of AFOs and the limited number of certified planners currently
available. The Panel recommended that EPA work with USDA to explore ways for small entities
to minimize costs when deveJoping CNMPs, and indicated that EPA should continue to
coordinate with other Federal, State and local agencies in the provision of low-cost CNMP
development services and should facilitate operator preparation of plans by providing training,
guidance and tools (e.g., computer programs). EPA indicated in the Panel Report that it expected
175
-------
that many operations could become certified through USDA or land grant universities to prepare
their own CNMPs.
EPA is requesting comment on the proposal to require that PNPs be developed, or
reviewed and modified, by certified planners, and on ways to structure this requirement in order
to minimize costs to small operators.
b. Submitta! of Permit Nutrient Plan to the Permit Authority
EPA is proposing to require that applicants for individual permits and operators of new
facilities submitting notices of intent for coverage under a general permit submit a copy of the
cover sheed and executive summary of their draft PNP to the permit authority at the time of
application or NOI submittal. §122.21(i)(l)(iv) and 122.28(b)(2)(ii). Operators of existing
facilities seeking coverage under a general permit must submit a notice of final PNP
development within 90 days of seeking coverage, but are not required to provide a copy of the
PNP to the Permit Authority unless requested. The reporting requirements, including the notice
of PNP development and notice of PNP amendment, are discussed in more detail in section
VH.E.3 below.
Initial installation of manure control technologies are significantly less costly compared to
retrofitting existing facilities, and early development of a PNP will help to ensure that, when a
new facility is being designed, the operator is considering optimal control technologies. In
addition, in situations where individual permits are warranted, the public interest demands early
review of the PNP, rather than waiting for its availability after the permit has been in effect for
some time.
EPA is requesting comment on the proposal to require new facilities seeking coverage
under a general permit, as well as applicants for individual permits, to submit a copy of the cover
sheet and executive summary of their PNP to the permit authority along with the NOI or permit
application. EPA is further requesting comment on whether the entire draft PNP should be
submitted along with the NOI or permit application.
EPA is further requesting comment on whether, for individual permits, the PNP, in part
or in its entirety, should be part of the public notice and comment process along with the permit.
c. Availability of the Permit Nutrient Plan Information to the
Public
EPA is proposing to require the operator of a permitted CAFO to make a copy of the PNP
cover sheet and executive summary available to the public for review. The CAFO operator could
choose to make this information directly available to the public in any of several ways, such as:
(1) maintaining a copy of these documents at the facility and making them available to the permit
176
-------
authority as publicly viewable documents upon request; (2) maintaining a copy of these
documents at the facility and making them available directly to the requestor, (3) placing a copy
of them at a publicly accessible site, such as at a public library; or (4) submitting a copy of them
to the permit authority. EPA is proposing that, if the operator has not made the information
available by other means, the permit authority would be required, upon request from the public,
to obtain a copy of the PNP cover sheet and executive summary and make them available. It is
important to ensure that the public has access to this information, which is needed to determine
whether a CAFO is complying with its permit, including the land application provisions.
EPA is also considering adding a provision in the final rule that would state that all
information in the PNP, not just the cover sheet and executive summary, must be publicly
available and cannot be claimed as confidential business information. Some stakeholders have
claimed that all or a portion of the PNPs should be entitled to protection as confidential business
information (CBI). EPA does not believe that the PNP cover sheet or executive summary would
ever contain confidential business information. The information in these two sections of the plan
is simply too general ever to be considered as CBI. However, EPA is sensitive to the concerns of
CAFOs that there may be information in the remaining, more detailed portions of the PNP that is
legitimately proprietary to the CAFOs' businesses and that the permit authorities should therefore
protect. We therefore request comments on whether the final rule should require the entire PNP
to be publicly available, or alternatively, whether the CAFO should be able to make a
confidentiality claim as to the remaining information in the PNP, Any such claim of
confidentiality would be governed by EPA's regulations at 40 CFR, Part 2 and relevant statutes.
There would be two bases on which EPA could base a determination that no portion of
the Permit Nutrient Plans would be entitled to CBI status. First, CWA Section 4020') states tnat
"faj copy of each permit application and each permit issued under this section shall be available
to the public." It may be that the PNPs that would be required by today's proposal are properly
viewed as a part of the CAFO's NPDES permit. The permits would require each CAFO to
develop and carry out a PNP, as specified in the proposed Part 122 regulations. In addition,
today's proposed effluent limitations guidelines would specify detailed requirements that PNPs
must meet. Failure to develop and properly carry out a PNP would be enforceable under each
permit as a permit violation. Therefore, for purposes of Section 402(j), EPA may conclude that
PNPs are properly viewed as a part of the permit or permit application and, accordingly, must be
available to the public.
EPA issued a "Class Determination" in 1978 that addresses this issue. See "Class
Determination 1-78" (March 22,1978) (a copy of which is in the public record for today's
proposal). This Class Determination addressed how to reconcile Section 402(j) of the Clean
Water Act with Section 308 of the Act. Section 308, which authorizes EPA to collect
information, states that information obtained under that section shall be available to the public,
except upon a showing satisfactory to the Administrator that the information, if made public,
would divulge methods or processes entitled to protection as trade secrets. Upon such a
177
U.S. EPA Headquarters Library
Mail code 3201
1200 Pennsylvania Avenue NW
Washington DC 20460
-------
showing, the Administrator shall protect that information as confidential. Section 308 makes an
exception for "effluent data," which is not entitled to such protection.
This Class Determination concludes that information contained in NPDES permits and
permit applications is not entitled to confidential treatment because Section 402(j) mandates
disclosure of this information to the public, notwithstanding the fact that it might be trade secrets
or commercial or financial information. Referring to the legislative history of the CWA, the
Class Determination notes that Congress sought to treat the information in permits and permit
applications differently from information obtained under Section 308. It concludes that Congress
intended Section 402(j) to be a disclosure mandate in contrast to the basic approach of Section
308, which provides protection for trade secret information. (Class Determination at pp. 2-4.)
Therefore, consistent with the Class Determination, if EPA were to conclude that the PNPs are a
part of the permit, the entire PNP would be a public document that would not be entitled to
confidentiality protection.
A second basis for finding that PNPs must be available to the public would be that, even
apart from Section 402(j), the information in PNPs may be "effluent data" and if so, also would
not be entitled to protection under Section 308. EPA's regulations define the term "effluent
data," among other things, as "[information necessary to determine the identity, amount,
frequency, concentration, temperature, or other characteristics (to the extent related to water
quality) of any pollutant which has been discharged by the source (or of any pollutant resulting
from any discharge from the source), or any combination of the foregoing." 40 CFR
2.302(a)(2)(i). There is a limited exception for information that is related to research and
development activities. EPA believes that the information in PNPs may fit this definition of
"effluent data." The information in PNPs has direct bearing on the amount of pollutants that may
be discharged by a CAFO and on characteristics of the pollutants that may be discharged (such as
the identity and presence of nutrients) that would be related to water quality.
On the other hand, the Agency could conclude that the information in the PNP is not part
of the CAFO's permit. Each permit would indeed require the CAFO to develop and carry out a
PNP that is approved by a certified specialist. Nevertheless, the CAFO will be developing the
terms of the final PNP, as well as periodic modifications to the PNP, outside of the permitting
process. It may be appropriate not to consider the PNP to be part of the permit for purposes of
section 402(j). If 402(j) — which states that all information in the permit must be publicly
available -- is therefore not a relevant provision, then whether PNPs could be protected as
confidential would be determined under section 308.
Section 308, as noted above, allows information to be protected as CBI where the
submitter can demonstrate the trade secret nature of the information to the satisfaction of the
Administrator, except that "effluent data" is never confidential. EPA could find that the
information in PNPs is not "effluent data." That is, EPA could conclude that the information in
PNPs primarily concerns operational practices at the facility and does not have enough of a
bearing on the characteristics of pollutants in the effluent to be considered "effluent data."
178
-------
Because it would not be "effluent data," the PNP information would not be categorically
excluded from being treated as confidential. EPA's regulations at 40 CFR Part 2 specify the
procedures for parties to make case-specific claims that information they submit to EPA is
confidential and for EPA to evaluate those claims. Consistent with these regulations, each
CAFO could claim that the information in its PNP is confidential (except for the cover sheet and
executive summary). EPA would evaluate these claims and determine in each case whether the
CAFO's CBI claim should be approved or denied. In sum, EPA could adopt final regulations
that would require a CAFO's CBI claims for the more detailed information in the remaining parts
of the PNP to be decided in each case.
The Agency notes that EPA itself would, of course, always be able to request and review
the CAFO's full PNP. The issues raised in this discussion concern only the availability of these
plans to outside parties.
EPA requests comments on all aspects of this proposal, including whether it would be
proper to determine that the full PNP must be publicly available under CWA Section 402(j) and
under CWA Section 308 as "effluent data." EPA also requests comments on whether the cover
sheet and executive summary should always be made available to the public, as proposed, or
whether there are elements of the cover sheet or executive summary that might appropriately be
claimed as CBI, and not considered to be either part of the permit or "effluent data."
The PNP would be narrower than the CNMP and would contain only requirements that
are necessary for purposes of the effluent guideline. A CNMP may contain other elements that
go beyond the effluent guideline. EPA is not proposing any separate requirements for CNMPs
themselves to be made publicly available and is not proposing any findings as to whether
information in a CNMP may be confidential.
2. What are the Effluent Limitations in the Permit?
The effluent limitations section in the permit serves as the primary mechanism for
controlling discharges of pollutants to receiving waters. This section describes the specific
narrative or numeric limitations that apply to the facility and to land application. It can contain
either technology-based effluent limits or water quality-based effluent limits, or both, and can
contain additional best management practices, as needed.
a. What Technology Based Effluent Limitations Would be in the
Permit?
Under the two-tier structure, for CAFOs with 500 AU or more, the effluent guidelines
and standards regulations [40 CFR 412] would establish the technology-based effluent
limitations to be applied in NPDES permits. Under the three-tier structure, any operation defined
as a CAFO would be subject to the revised effluent guidelines. The proposal to revise the
effluent guidelines and standards regulation is described in section VEtt of today's proposed rule.
179
-------
Operations with fewer than 500 AU under the two-tier structure, or fewer than 300 AU
under the three-tier structure, which have been designated as CAFOs by the permit authority
would not be subject to the effluent guidelines and standards. For these CAFOs, the permit
writer would use "Best Professional Judgement," or BPJ, to establish, on a case-by-case basis,
the appropriate technology-based requirements. Often, permit writers adopt requirements similar
to, or the same as the effluent guidelines requirements..
b. What Water Quality-based Effluent Limitations Would be in
the Permit?
Section 301(b)(l)(C) of the Clean Water Act requires there to be achieved "any more
stringent limitation, including those necessary to meet water quality standards." Therefore,
where technology-based effluent limitations are not sufficient to meet water quality standards, the
permit writer must develop more stringent water quality-based effluent limits. Under today's
proposal, the permit writer must include any more stringent effluent limitations for the waste
stream from the production area as necessary to meet water quality standards. If necessary to
meet water quality standards, permit writers may consider requiring more stringent BMPs (e.g.,
liners for lagoons to address a direct hydrologic connection to surface waters; covers for lagoons
to prevent rainwater from causing overflows; allowing discharges only from catastrophic storms
and not from chronic storms; pollutant limits in the overflow; particular treatments, such as
grassed waterways for the overflows discharged; etc.).
If EPA chose to promulgate one of the options discussed in section "VTI.D.2 above
under which the agricultural storm water discharge exemption did not apply to land application
areas under the operational control of a permitted CAFO, then the permit writer would be
required to establish water quality-based effluent limits where necessary to meet water quality
standards. If EPA chose to promulgate the option described in section Vn.D.2 above, under
which the appropriate rates and practices identified in the effluent guidelines and the NPDES
regulations established the scope of the term "agriculture" without additional consideration of
water quality impacts or water quality standards, only the limitations and practices required by
the effluent guidelines and the NPDES regulations could be required by the permit authority for
land application discharges.
c. What Additional Best Management Practices Would be in the Permit?
Under § 122.44(k)(4) of the existing NPDES regulations, permit writers may include in
permits best management practices "that are reasonably necessary to achieve effluent limitations
and standards or to carry out the purposes and intent of the CWA." Under today's proposal, the
permit writer may include BMPs for land application areas in addition to those required by the
effluent guidelines, as necessary to prevent adverse impacts on water quality. As discussed in
section VHD.2 above, EPA is today defining proper agricultural practices required to qualify for
the agricultural storm water discharge exemption to include practices necessary to minimize
180
-------
adverse water quality impacts. Therefore, if a permit writer determines that despite the
implementation of the BMPs required by the effluent guidelines discharges from a CAFO will
have adverse water quality impacts, the permit writer should impose additional BMPS designed
to minimize such impacts.
3. What Monitoring and Reporting Requirements are Included in the
Permit?
The section of the NPDES permit on monitoring and reporting requirements identifies the
specific conditions related to the types of monitoring to be performed, the frequencies for
collecting samples or data, and how to record, maintain, and transmit the data and information to
the permit authority. This information allows the NPDES permit authority to determine
compliance with the permit requirements.
As described in section VHI, today's proposed revisions to the effluent guidelines would
require the operator to conduct periodic visual inspection and to maintain all manure storage and
handling equipment and structures as well as all runoff management devices. See proposed
§412.33(c). The NPDES permit would also require the permittee to: 1) test and calibrate all
manure application equipment annually to ensure that manure is land applied in accordance with
the proper application rates established in the NPDES permit; 2) sample manure for nutrient
content at least once annually, and up to twice annually if manure is applied more than once or
removed to be sent off-site more than once per year; and 3) sample soils for phosphorus once
every three years. Today's proposed effluent guidelines would also require the operator to
review the PNP annually and amend it if practices change either at the production area or at the
land application area, and submit notification to the permit authority. Examples of changes in
practice necessitating a PNP amendment include: a substantial increase in animal numbers (e.g.
more than 20 percent) which would significantly increase the volume of manure and nutrients
produced on the CAFO; a change in the cropping program which would significantly alter land
application of animal manure and wastewater; elimination or addition of fields receiving animal
waste application; or changes in animal waste collection, storage facilities, treatment, or land
application method.
As discussed in section VE.E.1.C above, CAFO operators would be required to submit
their PNPs, as well as any information necessary to determine compliance with their PNPs and
other permit requirements, to the permit authority upon request. The CAFO operator could make
a copy of the cover sheet and executive summary of the PNP available to the public in any of
several ways. Operators of new facilities seeking coverage under a general permit and applicants
for individual permits would be required to submit a copy of their draft PNP to the permit
authority at the time of NOI submittal or application.
EPA is also proposing to require operators to submit a written notification to the permit
authority, signed by the certified planner, that the PNP has been developed or amended, and is
being implemented, accompanied by a fact sheet summarizing certain elements of the PNP. See
181
-------
§412.31(b)(l)(ii). This written notice of PNP availability would serve an important role in
verifying that the permittee is complying with one of the requirements of the NPDES permit.
EPA is proposing that the PNP notification and fact sheet contain the following information:
• the number and type of animals covered by the plan
• the number of acres to which manure and wastewaters will be applied
• the phosphorus conditions for those fields receiving the manure
• nutrient content of the manure
• application schedule and rate
• the quantity to be transferred off-site
• .Date PNP completed or amended
• Key implementation milestones
4. What are the Record Keeping Requirements?
The record keeping requirements section of the permit specifies the types of records to be
kept on-site at the permitted facility.
Operation and Maintenance of the CAFQ
As described in section Vffl of today's proposal, EPA is proposing to require operators to
maintain records at the facility that document: (1) the visual inspections, findings, and preventive
maintenance; (2) the date, rate, location and methods used to apply manure and wastewater to
land under the control of the CAFO operators; (3) the transfer of the CAFO-generated manure
off-site; (4) the results of annual manure and wastewater sampling and analyses to determine the
nutrient content; and (5) the results of representative soil sampling and analyses conducted at
least every three years to determine nutrient content.
i
Transfer to Off-site Recipients of CAFQ Manure
As described in Chapter IV.B and V.B, inappropriate land application of CAFO-
generated manure poses a significant risk to water quality. Further, EPA estimates that the
majority of CAFO-generated manure is in excess of CAFO's crop needs, and will very likely be
transferred off-site. The ultimate success of the CAFO program depends on whether recipients
handle manure appropriately, and in a manner that prevents discharge to waters. As discussed
182
-------
fully in section VH.D.4, EPA is not proposing to regulate off-site recipients through CAFO
permit requirements, however, EPA believes that the certification and record-keeping
requirements described here will help to ensure responsible handling of manure. Thus, EPA is
co-proposing additional record keeping requirements under the NPDES program.
Under one co-proposed option, EPA would require that owners or operators of CAFOs
obtain from off-site land appliers a certification that, if land applying CAFO-generated manure,
they are doing so at proper agricultural rates.. In addition, the CAFO owner or operator would be
required to maintain records of transfer, including the name of the recipient and quantity
transferred, and would be required to provide the recipient with an analysis of the contents of the
manure and a brochure describing the recipient's responsibilities for proper management of the
manure.. Under another co-proposed option, EPA would not require the certification, but would
require the CAFO owner or operator to keep records and provide information.
Certification Option
Under one option, EPA is proposing that CAFOs obtain a certification and that recipients
of CAFO-generated manure so certify, pursuant to §308 of the CWA. Under §308, EPA has the
authority to require the owner or operator of a point source to establish and maintain records and
provide any information the Agency reasonably requires. The Agency has documented historic
problems associated with over application of CAFO manure and wastewater by both CAFO
operators and recipients of CAFO manure and wastewater. Today's proposal would establish
effluent limitations designed to prevent discharges due to over application. In order to determine
whether or not CAFOs are meeting the effluent limitations which would be established under
today's proposals, EPA believes it is necessary for the Agency to have access to information
concerning where a CAFO's excess manure is sent. Furthermore, in order to determine whether
or not the recipients of CAFO manure should be permitted (which may be required if they do not
land apply the CAFO manure in accordance with proper agricultural practices and they discharge
from a point source, see section Vn.D.2), EPA has determined that it will be necessary for such
recipients to provide information about their land application methods. Recipients who certify
that they are applying manure in accordance with proper agricultural practices as detailed in
section VHD.2 are responding to a request under Section 308 of the CWA. Therefore, a
recipient who falsely certifies is subject to all applicable civil and criminal penalties under
Section 309 of the CWA.
In some cases, CAFOs give or sell manure to many different recipients, including those
taking small quantities, and this requirement could result in an unreasonable burden. EPA is
primarily concerned with recipients who receive and dispose of large quantities, presuming that
recipients of small quantities pose less risk of inappropriate disposal or over-application. To
relieve the paperwork burden, EPA is proposing that CAFOs not be required to obtain
certifications from recipients that receive less than twelve tons of manure per year from the
CAFO. The CAFO would, however, be required to keep records of transfers to such recipients,
as describe below.
183
-------
Hie Agency believes that it would be reasonable to exempt from the PNP certification
requirements recipients who receive small amounts of manure from CAFOs. EPA considered
exempting amounts such as a single a truckload per day or a single truckload per year. EPA
decided that an appropriate exemption would be based on an amount that would be typically used
for personal, rather than commercial, use. The exemption in today's proposal regulation is based
on the amount of manure that would be appropriately applied to five acres of land, since five
acres is at the low end of the amount of land that can be profitably fanned. See, e.g., "The New
Organic Grower," Eliott Coleman (1995).
To determine the maximum amount of manure that could be appropriately applied to five
acres of land, an average nutrient requirement per acre of cropland and pasture land was
computed. Based on typical crops and national average yields, 160 pounds of nitrogen and 14.8
pounds of phosphorous are required annually per acre. See "Manure Nutrient Relative to the
Capacity of Cropland and Pastureland to Assimilate Nutrients," Kellogg et al (USDA, July, 25,
2000). The nutrient content of manure was based on USDA's online software, Manure Master.
available on the world wide web at http://www2.ftw.nrcs.usda.gov/ManureMaster/MM21.html.
The nitrogen content of manure at the time of land application ranges from 1.82 pounds
per ton for heifers and dairy calves to 18.46 pounds per ton for hens and pullets. Using the low
end rate of 1.82 pounds of nitrogen per ton, 87.4 tons of manure would be needed for a typical
acre or 439 tons of manure for five acres in order to achieve the 160 pounds per acre rate. Using
the high end rate of 18.46 pounds of nitrogen per ton, 8.66 tons of manure would be needed for a
typical acre or 43.3 tons of manure for five acres in order to achieve the 160 pounds per acre rate.
Thus, the quantity of manure needed to meet the nitrogen requirements of a five acre plot would
range from 43.3 tons to 439 tons, depending on the animal type.
The phosphate content of manure at the time of land application ranges from 1.10 pounds
per ton for heifers and dairy calves to 11.23 pounds per ton for turkeys for breeding. Using the
high end 11.23 pound per ton rate for phosphorous, only about 1.3 tons would be needed for an
average acre, or 6.5 tons for five acres in order to meet the 14.8 pounds of phosphorous required
annually for a typical acre of crops. Using the low end 1.1 pound per ton rate for phosphorous,
about 13.2 tons would be needed for an average acre, or 66 tons for five acres. Using the
phosphate content for broilers of 6.61 pounds per ton is more typical of the phosphate content of
manure and would result in 2.23 tons per acre being needed for an average acre, or 11.2 tons for
five acres.
Clearly, exempting the high end amount of manure based on nitrogen content could lead
to excess application of phosphorous. Regulating based on the most restrictive phosphate
requirement could lead to manure not being available for personal use.
The exemption is only an exemption from the requirement that the CAPO obtain a
certification. The recipient would remain subject to any requirements of State or federal law to
prevent discharge of pollution to waters of the U.S.
184
-------
EPA is proposing to set the threshold at 12 tons per recipient per year. This is rounding
the amount based on typical phosphate content. It also allows one one-ton pick up load per
month, which is consistent with one of the alternative approaches EPA considered. Recipients
that receive more than 12 tons would have to certify that it will be properly managed. EPA is
interested in comments on alternative thresholds for exempting small quantity transfers by the
CAFO from the requirement that CAFOs receive certifications from the recipients.
For CAFO owners or operators who transfer CAFO-generated manure and wastewater to
manure haulers who do not land apply the waste, EPA is proposing that the CAFO owner or
operator must: 1) obtain the name and address of the recipients, if known; 2) provide the manure
hauler with an analysis of the nutrient content of the manure, to be provided to the recipients; and
3) provide the manure hauler with a brochure to be given to the recipients describing the
recipient's responsibility to properly manage the land application of the manure to prevent
discharge of pollutants to waters of the U.S. The certification form would include the statement,
"/ understand that the information is being collected on behalf of the U.S. Environmental
Protection Agency or State and that there are penalties for falsely certifying. The permittee is
not liable if the recipient violates its certification"
Concern has been expressed that many potential recipients of CAFO manure will choose
to forego CAFO manure, and buy commercial fertilizers instead, in order to avoid signing such a
certification and being brought under EPA regulation. The result could be that CAFO owners
and operators might be unable to find a market for proper disposal, thereby turning the manure
into a waste rather than a valuable commodity. EPA requests comment on this concern.
This alternative is potentially protective of the environment because non-CAFO land
appliers would be liable for being designated as a point source in the event that there is a
discharge from improper land application. EPA's proposed requirements for what constitutes
proper agricultural practices, described in VII.D.2 above, would ensure that CAFO-generated
manure is properly managed.
No Certification Option
In the second alternative proposal for ensuring proper management of manure that is
transferred off-site, EPA is not proposing to require CAFO owners or operators to obtain the
certification described above. Rather, CAFO owners or operators would be required to maintain
records of transfer, described in the following section.
Concern has been expressed that many potential recipients of CAFO manure will choose
to forego CAFO manure, and buy commercial fertilizers instead, in order to avoid signing such a
certification and being brought under EPA regulation. The result could be that CAFO owners
and operators might be unable to find a market for proper disposal, thereby turning the manure
into a waste rather than a valuable commodity.
185
-------
This alternative is potentially protective of the environment because non-CAFO land
appliers would be liable for being designated as a point source in the event that there is a
discharge from improper land application. EPA's proposed requirements for what constitutes
proper agricultural practices, described in VHD.2 above, would ensure that CAFO-generated
manure is properly managed.
Records of Transfer of Manure Off-site
In both alternative proposals for whether or not to require CAFO owners or operators to
obtain certifications from off-site recipients, EPA is proposing to require CAFO operators to
maintain records of the off-site transfer of the CAFO-generated manure and wastewater, e.g.,
when manure is sold or given away for land application on land not under their operational
control, to ensure the environmentally acceptable use of the CAFO-generated manure. See
§122.23(i)(5). When CAFO-generated manure is sold or given away to be used for land
application, the specific manner of land application does not need to be addressed in the CAFO's
PNP. However, to help ensure the environmentally acceptable use of the CAFO-generated
manure, the CAFO operator would be required to do the following: See §122.23(j)(4) and (5).
• Maintain records showing the amount of manure and/or wastewater that leaves the
operation;
• Record the name and address of the recipient(s), including the intended
recipient(s) of manure and/or wastewater transferred to contract haulers, if known;
• Provide the recipient(s) with representative information on the nutrient content of
the manure to be used in determining the appropriate land application rates; and
• Provide the recipient with information provided by the permit authority of his/her
responsibility to properly manage the land application of the manure to prevent
discharge of pollutants to waters of the U.S.
• [Under one co-proposed option, obtain and retain on-site a certification from each
recipient of the CAFO-generated manure and wastewater that they will do one of
the following: a) land apply in accordance proper agricultural practices as defined
in today's proposal; b) obtain an NPDES permit for discharges resulting from
non-agricultural spreading; c) or utilize it for other than land application
purposes.]
EPA proposes to require these records to be retained on-site at the CAFO, and to be
submitted to the permit authority upon request.
5. What are the Special Conditions and Standard Conditions in an
NPDES Permit?
186
-------
Standard conditions in an NPDES permit list pre-established conditions that apply to all
NPDES permits, as specified in 40 CFR 122.41.
The special conditions in an NPDES permit are used primarily to supplement effluent
limitations and ensure compliance with the CWA. EPA is proposing at 40 CFR 122.23(i) to (k)
to require permit authorities to develop special conditions that: a) specify how the permittee is to
calculate the allowable manure application rate; b) specify timing restrictions, if necessary, on
land application of manure and wastewater to frozen, snow covered or saturated ground; c)
establish requirements for facility closure; d) specifying conditions for groundwater with a direct
hydrological connection to surface water; e) require certification for off-site transfer of manure
and wastewater (co-proposed with omitting this requirement). Finally, EPA is soliciting
comment on whether a special condition should be included regarding erosion control.
a. Determining Allowable Manure Application Rate
EPA is proposing that the permit authority be required to include a term in the NPDES
permit that establishes the method to be used for determining the allowable manure application
rate for applying manure to land under the control of the CAFO operator. See proposed
§122.23(J)0).
As described in detail in section Vin, three methods are available which may be used to
determine the allowable manure application rate for a CAFO. These three methods are: 1) the
Phosphorus Index; 2) the Soil Phosphorus Threshold Level; and 3) the Soil Test Phosphorus
Level.
EPA is proposing to adopt these three methods from USDA Natural Resource
Conservation Service's (NRCS) nutrient management standard (Standard 590). State
Departments of Agriculture are developing State nutrient standards which incorporate one of
these three methods. EPA is proposing to require that each authorized permit authority adopt one
or more of these three methods as part of the State NPDES program, in consultation with the
State Conservationist. The permit would require the permittee to develop the appropriate land
application rates in the site-specific PNP based upon the State's adopted method. EPA solicits
comment on whether the special conditions in an NPDES permit should require permit
authorities to adopt the USDA Natural Resource Conservation Service's (NRCS) Nutrient
Management Standard (Standard 590) in its entirety rather than just the portion that applies to
determining the allowable manure application rate.
b. Would Timing Restrictions on Land Application of CAFO-
generated Manure be Required?
EPA is proposing to require that the permit writer include in the CAFO's NPDES permit
regionally appropriate prohibitions or restrictions on the timing and methods of land application
187
-------
of manure where necessary. See proposed § 122.23 (i)(3). The permit writer would develop the
restrictions based on a consideration of local crop needs, climate, soil types, slope and other
factors.
The permit would prohibit practices that would not serve an agricultural purpose and
would have the potential to result in pollutant discharges to waters of the United States. A
practice would be considered not to be agricultural if significant quantities of the nutrients in the
manure would be unavailable to crops because they would leach, run off or be lost due to erosion
before they can be taken up by plants.
EPA considered establishing a national prohibition on applying CAFO-generated manure
to frozen, snow covered or saturated ground in today's proposed effluent guidelines. Disposal of
manure or wastewater to frozen, snow covered or saturated ground is generally not a beneficial
use for agricultural purposes. While such conditions can occur anywhere in the United States,
pollutant runoff associated with such practice is a site specific consideration and is dependent on
a number of variables, including..climate and topographic variability, distance to surface water,
and slope of the land. Such variability makes it difficult to develop a national technology-based
standard that is consistently reasonable, and does not impose unnecessary cost on CAFO
operators.
While EPA believes that many permit writers will find a prohibition on applying CAFO-
generated manure to frozen, snow covered or saturated ground to be reasonably necessary to
achieve the effluent limitations and to carry out the purposes and intent of the CWA, EPA is
aware that there are areas where these practices might be allowed provided they are restricted.
Application on frozen ground, for example, may be appropriate in some areas provided there are
restrictions on the slope of the ground and proximity to surface water. Many States have already
developed such restrictions.
While the proposed regulations would not establish a national technology-based
limitation or BMP, EPA is proposing at §122.23(j)(2) that permit writers consider the need for
these limits. Permit authorities would be expected to develop restrictions on timing and method
of application that reflect regional considerations, which restrict applications that are not an
appropriate agricultural practice and have the potential to result in pollutant discharges to waters
of the United States. It is likely that the operators would need to consider means of ensuring
adequate storage to hold manure and wastewater for the period which manure may not be
applied. EPA estimates that storage periods might range from 45 to 270 days, depending on the
region and the proximity to surface water, and to ground water with a direct hydrological
connection to surface water. Permit authorities are expected to work with State agricultural
departments, USDA's Natural Resource Conservation Service, the EPA Regional office, and
other local interests to determine the appropriate standard, and include the standard consistently
in all NPDES permits for CAFOs.
188
-------
EPA's estimate that storage periods would range from 45 days to 270 days is derived
using published freeze/frost data from the National Oceanic and Atmospheric Administration,
National Center for Disease Control. For the purpose of estimating storage requirements to
prevent application to frozen ground, EPA assumed CAFOs could only apply manure between
the last spring frost and the first fall frost, called the "freeze free period". With a 90 percent
probability, EPA could also use a 28 degree temperature threshold to determine the storage time
required, rounded to the nearest 45 day increment. This calculation results in 45 days of storage
in the South; 225 days in parts of the Midwest and the Mid-Atlantic; and as high as 270 days
storage in the Central region.
EPA is soliciting comment on alternate approaches of prohibiting land application at
certain times or using certain methods. For example, EPA might develop a nationally applicable
prohibition against applying manure on frozen land that is greater than a certain slope such as 15
percent. EPA is also interested in whether to prohibit application to saturated soils.
c. Closure
EPA is proposing to require permit authorities to require the CAFO operator to maintain
permit coverage (e.g., after the facility ceases operation as a CAFO or drops below the size for
being defined as a CAFO ) until all CAFO-generated manure and wastewater is properly
disposed and, therefore, the facility no longer has the potential to discharge. See proposed
§122.23(i)(3). Specifically, the permit writer would need to impose a permit condition requiring
the owner or operator to reapply for a permit unless and until the owner or operator can
demonstrate that the facility has no potential to discharge wastes generated by the CAFO. This
requirement would be included as a special condition in the NPDES permits.
EPA considered several options for ensuring that manure and wastewater from CAFOs is
properly disposed after the operation terminates or ceases being a CAFO. Section Vn.C.2.g
above discusses the options in detail. In this proposal, EPA is also proposing to ensure that
permits explicitly address closure requirements. While EPA is today proposing to only require
ongoing permit coverage of the former CAFO, permit authorities are encouraged to consider
including other conditions such as those discussed in Section VII.C.2.g above.
EPA is soliciting comment on these proposed provisions.
d. Discharge to Surface Water via a Direct Hydrological
Connection with Ground Water
EPA is proposing requirements to address the serious environmental harms caused by
discharges from CAFOs to surface waters via direct hydrologic connection with ground water.
As described in section V.B.2.a, studies in Iowa, the Carolinas, and the Delmarva Peninsula have
shown that CAFO lagoons do leak, and that leaks from lagoons contaminate ground water and
the surface water to which that ground water is hydrologically connected, often severely. EPA
189
-------
believes that it is reasonable to include a requirement to ensure that discharges to surface water ;j
via a direct hydrologic connection with ground water do not occur from CAFOs, either by !|
requiring the permit applicant to implement appropriate controls or to provide evidence that no |j
such connection exists at the facility. j;
Section VHC.2.J of today's preamble discusses the legal and technical basis for the |
proposed ground water controls, and provides information on tools and resources available to
permit writers to make determinations as to whether the production area of a CAFO may ;,
potentially discharge to surface waters via direct hydrologic connection with ground water.
EPA requests comment on the following proposals.
ti
CAFOs Subject to Effluent Guideline Requirements for Ground water
EPA is proposing that, for all CAFOs that are subject to an effluent guideline that
includes requirements for zero discharge from the production area to surface water via direct ',
hydrologic connection to ground water (all beef and dairy operations, as well as new swine, ,
poultry and veal operations), the permit would require the appropriate controls and monitoring. /
See proposed 40 CFR 412.33(a)(3), 412.35(a)(3) and 412.45(a)(3). The permittee would be able Ij
to avoid the requirements by submitting a hydrologist's report demonstrating, to the satisfaction •
of the permit authority, that the ground water beneath the production area is not connected to -\
surface water through a direct hydrologic connection. :i
EPA is also requesting comment on other options for determining which CAFOs must ''
implement appropriate monitoring and controls to prevent discharges from the production area to :
hydrologically connected groundwater. One option would be for EPA to narrow the rebuttable
presumption to areas with topographical characteristics that indicate the presence of ground water •'
that is likely to have a direct hydrologic connection to surface water. For example, the final rule
could specify that only CAFOs located in certain areas, such as an area with certain types of
lithologic settings (e.g., karst, fractured bedrock, or gravel); or an area defined by the USGS as a
HLR1 or HLR9; or an area with a shallow water table; would need to either comply with the
groundwater monitoring requirements and appropriate controls in the effluent guideline or
provide a hydrologist's statement demonstrating that there is no direct hydrologic connection to
surface waters. Another option would be to require States, through a public process, to identify j.
the areas of the State in which there is the potential for such discharges. In those areas, CAFOs
subject to an effluent guideline that includes requirements to prevent discharges to surface water !
via hydrologically connected ground water would again need to either comply with the
monitoring requirements and appropriate controls in the guideline or provide a hydrologist's
statement demonstrating that there is no hydrologic connection to surface waters.
Requirements for CAFOs Not Subject to Effluent Guidelines Ground Water
Provisions
190
-------
Certain facilities are not subject to today's revised effluent guideline (412 Subpart C and
D) that includes requirements to prevent discharges to surface water via hydrologically connected
ground water. Such CAFOs include: 1) facilities below the effluent guideline applicability
threshold that are designated as CAFOs; 2) existing swine, poultry and veal operations; and 3)
CAFOs in sectors other than beef, dairy, poultry, swine and veal. For such CAFOs not subject to
an effluent guideline that includes ground water requirements, EPA is proposing that the permit
writer must assess whether the facility is in an area with topographical characteristics that
indicate the presence of ground water that is likely to have a direct hydrologic connection to
surface water. For instance, if the facility is in an area with topographical characteristics that
indicate the presence of ground water that is likely to have a hydrologic connection to surface
water, as discussed above, the permit writer is likely to determine that there is the potential for a
discharge to surface water via ground water with a direct hydrologic connection.
For existing swine, poultry, and veal operations, if the permit writer determines that
pollutants may be discharged at a level which may cause or contribute to an excursion above any
State water quality standard, the permit writer would be required to decide on a case-by-case
basis whether effluent limitations (technology-based and water quality-based, as necessary)
should be established to address potential discharges to surface water via hydrologically
connected ground water. EPA is proposing that a permittee for whom the permit authority has
made the above determinations would be required to comply with those conditions, or could
avoid having those conditions imposed by providing a hydrologist's statement that the facility
does not have a direct hydrologic connection to surface water. 40 CFR 122.23(j)(6) and (k)(5).
For CAFOs not subject to today's revised effluent guidelines, if the permit writer
determines that there is likely to be a discharge from the CAFO to surface waters via a direct
hydrologic connection, the permit writer must impose technology-based or water quality-based,
or both, effluent limitations, as necessary. Again, EPA is proposing that a permittee for whom
the permit authority has made the above determinations would be required to comply with those
conditions, or could avoid having those conditions imposed by providing a hydrologist's
statement that the facility does not have a direct hydrologic connection to surface water. 40 CFR
122.230X6) and (k)(5).
EPA is soliciting comments on the alternative provisions discussed here. EPA is also
requesting comment on the proposal to place the burden on the permittee to establish to the
satisfaction of the permitting authority that the ground water beneath the production area is not
connected to surface waters through a direct hydrologic connection.
e. Certification for Off-site Recipients of CAFO Manure
EPA is co-proposing either to include the following requirement or to omit it. In the
inclusionary proposal, EPA would require permit writers to include a special condition in each
permit that requires CAFO owners or operators to transfer manure off-site only to recipients who
can certify that they will either: 1) land apply manure according to proper agricultural practices,
as defined for off-site land appliers in today's proposed rule; 2) obtain an NPDES permit for
191
-------
potential discharges; or 3) use the manure for purposes other than land application. EPA
proposes to define the term "proper agriculture practice" to mean that the recipient shall
determine the nutrient needs of its crops based on realistic crop yields for its area, sample its soil
at least once every three years to determine existing nutrient content, and not apply the manure in
quantities that exceed the land application rates calculated using either the Phosphorus Index,
Phosphorus Threshold, or Soil Test Phosphorus method as specified in 40 CFR 412.13(b)(l)(iv).
EPA is also proposing to allow States to waive this requirement if the recipient is
complying with the requirements of a State program that are equivalent to proposed 40 CFR
412.13(b).
f.
Erosion Control
EPA is not proposing to specify erosion controls as a necessary element of the PNP, but
permit writers should consider whether to add special conditions on a case-by-case basis as
appropriate.
As described in previous sections, EPA recognizes that sediment eroding from cropland
can have a significant negative impact on surface waters. While EPA realizes that it is not
possible to completely prevent all erosion, erosion can be reduced to tolerable rates. In general
terms, tolerable soil loss is the maximum rate of soil erosion that will permit indefinite
maintenance of soil productivity, i.e., erosion less than or equal to the rate of soil development.
The USDA-NRCS uses five levels of erosion tolerance ("T") based on factors such as soil depth
and texture, parent material, productivity, and previous erosion rates. These T levels are
equivalent to annual losses of about 1-5 tons/acre/year (2-11 mt/ha/year), with minimum rates
for shallow soils with unfavorable subsoils and maximum rates for deep, well-drained productive
soils (from Ag Management Measures).
Options for controlling erosion are: 1) implementation of one of the three NRCS
Conservation Practices Standards for Residue Management: No-Till and Strip Till (329A),
Mulch Till (329B), or Ridge Till (329C) in the state Field Office Technical Guide; 2) requiring a
minimum 30 percent residue cover; 3) achieving soil loss tolerance or "T"; or 4) following the
Erosion and Sediment Control Management Measure as found in EPA's draft National
Management Measures to Control Nonpoint Source Pollution from Agriculture which is
substantially the same as EPA's 1993 Guidance Specifying Management Measure for Sources of
Nonpoint Pollution in Coastal Waters.
EPA is requesting public comment on the suitability of requiring erosion control as a
special condition of an NPDES permit to protect water quality from sediment eroding from fields
where CARD manure is applied to crops. If erosion control is desirable, EPA is soliciting
comment as to which method would be the most cost-efficient.
g. Design Standards for Chronic Rainfall
192
-------
In this section, EPA is soliciting comments on whether additional regulatory language is
needed to clarify when a discharge is considered to be caused by "chronic rainfall." EPA also
solicits comment on whether design standards to prevent discharges due to chronic rainfall
should be specified in the effluent limitations or as a special condition in the NPDES permit.
CAFOs in the beef and dairy sub-category [412-subpart CJ are prohibited from
discharging except during a "25-year, 24-hour rainfall event or chronic rainfall" and then only if
they meet the criteria in §412.13(a)(2). Section 412.13(a)(2)(i) allows a discharge caused by
such rainfall events only if "(i) the production area is designed and constructed to contain all
process wastewaters including the runoff from a 25-year, 24-hour rainfall event; and (ii) the
production area is operated in accordance with the requirements of §412.37(a)."
The term "25-year, 24-hour rainfall event" is clearly defined in 40 C.F.R 412.01(b). In
addition, proposed §412.37(c)(l)(iv) would require all surface impoundments to have a depth
marker which indicates the design volume and clearly indicates the minimum freeboard
necessary to allow for the 25-year 24-hour rainfall event. A discharge may be caused by a 25-
year, 24-hour storm when it occurs despite the fact that the CAFO operator maintained adequate
freeboard.
The term "chronic rainfall" has not been specifically defined. Generally, a chronic
rainfall event is one that lasts longer than 24 hours and causes a discharge from a system that has
been designed, constructed, maintained and operated to contain all process wastewaters plus the
runoff from a 25-year, 24-hour rainfall event. Persistent rainfall over a period longer than 24
hours may overwhelm a system designed for the 25-year 24-hour rainfall event even though such
persistent rainfalls may be expected to occur more frequently than every 25 years.
In order for a discharge to be "caused" by chronic rainfall, it would need to be
contemporaneous with the rainfall. The discharge could not continue after the event any longer
than is necessary. For example, once a flooded lagoon has been drawn down to the level
necessary to protect the integrity of the lagoon (which in no case should be below the level of the
freeboard necessary for a 25/24-hour storm), the discharge should cease. If the lagoon could not
then accept additional waste from the CAFO, no animals that would contribute waste to the
lagoon should be brought to the facility until additional capacity can be generated by properly
land applying the waste or shipping the waste off-site.
A discharge also would not be considered to be "caused" by the chronic storm if the
operator should have foreseen the event in time to properly land apply the waste and thereby have
avoided an overflow or the need to apply wastes to saturated grounds. Similarly, a discharge is
not considered to be caused by the chronic storm if the operator should have foreseen the event
and maintained adequate facilities for managing the waste. Although (in the absence of more
specific regulatory requirements) operators would responsible for foreseeing and planning for
193
-------
chronic rainfall events, they would be liable for discharges during chronic events only where they
were not reasonable in their decision regarding what would be adequate capacity.
An approach that would provide more certainty to the operator but place a greater burden
on permitting authorities would be for EPA to require permit authorities to specify regionally-
specific minimum free board requirements necessary to contain runoff from foreseeable chronic
events. For example, it may be known that, in a given area, the free board necessary to contain
the runoff from a 25-year, 24-hour storm will not be sufficient to contain the run off that typically
accumulates during the region's rainy season, especially when it would not be appropriate to
draw down the lagoon by land applying wastes during that time. In that case, it may be necessary
for the permit writer to specify a greater freeboard requirement that would apply to the CAFO at
the beginning of that season. For example, Nebraska requires CAFOs to be able to capture the
average rainfall for the three summer months. EPA notes that such additional permit conditions
are already required where they are necessary to eliminate potential discharges that would cause
or contribute to violations of state water quality standards.
Another approach would be to require the operator to notify the permitting authority as
soon as it knows that a discharge will occur or is occurring and to come to an agreement on how
long the discharge will occur. This approach has several disadvantages. Because many facilities
located in the same area may be experiencing the same problem, permitting authorities may not
have the resources to address several simultaneous requests. It is not clear how a disagreement
between the operator and permit authority would be resolved. Perhaps most importantly, this
approach also does not address the need to foresee and prepare for such events in advance of the
event.
EPA solicits comment on all of these approaches for clarifying when a discharge is
considered to be caused by "chronic rainfall," and whether technology guidelines are necessary in
either section 412 or 122 to address discharges due to chronic rainfall.
F. What Type of NPDES Permit is Appropriate for CAFOs?
NPDES permit authorities can exercise one of two NPDES permitting options for
CAFOs: general permits or individual permits. A general NPDES permit is written to cover a
category of point sources with similar characteristics for a defined geographic area.
1. What Changes Are Being Made to the General Permit and NOI
Provisions?
The majority of CAFOs may appropriately be covered under an NPDES general permit
because CAFOs generally involve similar types of operations, require the same kinds of effluent
limitations and permit conditions, and discharge the same types of pollutants. In the past, about
70 percent of permitted CAFOs have been permitted under an NPDES general permit, and EPA
expects this trend to continue. General permits offer a cost-effective approach for NPDES permit
194
-------
authorities because they can cover a large number of facilities under a single permit. The
geographic scope of a general permit is flexible and can correspond to political or other
boundaries, such as watersheds. At the same time, the general permit can also provide the
flexibility for the permittee to develop and implement pollution control measures that are tailored
to the site-specific circumstances of the permittee. The public has an opportunity for input
during key steps in the permit development and implementation process.
EPA is proposing to clarify that CAFOs may obtain permit coverage under a general
permit. See proposed §122.28(a)(2)(iii). Although section 122.28 currently authorizes CAFOs to
be regulated using a general permit, some stakeholders have questioned whether CAFOs fall
within the current language of that section. Today's proposal would clarify that permit writers
may use a general permit to regulate a category of CAFOs that are appropriately regulated under
the terms of the general permit.
A complete and timely NOI indicates the operator's intent to abide by all the conditions
of the permit, and the NOI fulfills the requirements for an NPDES permit application. The
contents of the NOI are specified in the general permit.
The current regulation requires NOIs to include legal name and address of the owner and
operator; facility name and address; type of facility or discharges; and the receiving stream(s).
EPA is proposing to amend §122.28(b)(2)(ii) to require, in addition:
• type and number of animals at the CAFO
* physical location, including latitude and longitude of the production area
• acreage available for agricultural use of manure and wastewater;
• estimated amount of manure and wastewater to be transferred off-site
• name and address of any other entity with substantial operational control of
facility
• if a new facility, provide a copy of the draft PNP
• if an existing facility, the status of the development of the PNP
• if in an area is determined to have vulnerable ground water (karst, sandy soil,
shallow water table, or in a hydrological landscape region 1 (HLR1), submit a
hydrologist's statement that the ground water under the production area of the
facility is not hydrologically connected to surface water, if the applicant asserts as
such
195
-------
• provide a topographic map as described in 40 CFR 122.21 (f)(7), showing any
ground water aquifers and depth to ground water that may be hydrologically
connected to surface water
§ 122.21 (f) requires the applicant to submit a topographic map extending one mile beyond
the facility's boundary that shows potential discharge points and surface water bodies in the area.
EPA is proposing to include a requirement that the operator also identify on the topographic map
any ground water aquifers that may be hydrologically connected to surface water, as well as the
depth to ground water.
EPA is proposing to require permit authorities to make the NOI and the notification of
PNP development or amendment available to the public and other interested parties in a timely
manner, updated on a quarterly basis. See proposed §122.23(j)(2). EPA encourages States to
devel-op and use Internet-based sites as a supplemental means to provide ready public access to
CAFO NPDES general permits, facility NOIs, and other information.
EPA will explore ways to adapt the Permit Compliance System, EPA's national
wastewater database, so that permit authorities may use it to track CAFO compliance
information. This information might include: NPDES permit number; facility name; facility
location; latitude and longitude of the production of area; animal type(s);.number of animals; the
name and address of the contract holder (for contract operations); PNP date of adoption or, where
a PNP has not yet been developed, the schedule for developing and implementing the PNP,
including interim milestones.
EPA is proposing to clarify that CAFOs may obtain permit coverage under a general
permit. See proposed §122.28(a)(2)(iii), which would expressly add "concentrated animal
feeding operations" to the list of sources that are eligible for general permits. In fact, CAFOs are
already eligible for general permits under the existing regulations at §122.28(a)(2), both because
they are storm water point sources (see subsection (a)(2)(i)) and because they are a category of
point sources that involve the same or substantially similar types of operations, may be more
appropriately controlled under a general permit than under individual permits, and otherwise
meet the criteria of subsection (a)(2)(ii). Some stakeholders, however, have questioned whether
CAFOs meet these existing criteria for general permit eligibility. Therefore, to remove any such
questions among stakeholders, EPA is proposing to expressly add CAFOs to the list of sources
that are eligible for general permits. In sum, this proposed change would be for purposes of
clarity only; it would effect no substantive change to the regulations.
2. Which CAFOs May Be Subject to Individual Permits?
Although EPA is not proposing to require NPDES individual permits in particular
circumstances, the Agency is proposing additional criteria for when general permits may be
inappropriate for CAFOs. See proposed §122.28(b)(3)(i)(G). Under the existing regulation, the
public may petition the permit authority when it believes that, based on the criteria in section
196
-------
122.28(b)(3)(i), that coverage under a general permit is inappropriate. Finally, EPA is proposing
to require the permit authority to conduct a public process for determining which criteria, if any,
would require a CAFO owner or operator to apply for an individual permit. See proposed
§122.28(b)(3)(i)(G). Permit authorities would be required to conduct this public process and set
forth its policy prior to issuing any general permit for CAFOs. Permit authorities would have
flexibility as to how to conduct this public process.
Besides requiring a public process to develop criteria for requiring individual permits, the
proposed regulation would also add the following CAFO-specific criteria for when the Director
may require an individual permit: (1) CAFOs located in an environmentally or ecologically
sensitive area; (2) CAFOs with a history of operational or compliance problems; (3) CAFOs that
are exceptionally large operation as determined by the permit authority; and (4) significantly
expanding CAFOs. See proposed §122.28(b)(3)(i)(G)(i) -(iv). Any interested member of the
public may petition the Director to require an individual permit for a facility covered by a general
permit. Section 122.28(b)(3).
EPA believes these criteria on the availability of general permits for CAFOs are desirable
because of keen public interest in participating in the process of issuing permits to CAFOs. The
public may participate in notice and comment during the development of general permits, but
once issued, public participation regarding facilities submitting notices of intent is limited. On
the other hand, the public does have access to notice and comment participation with regard to
individual permits.
EPA considered requiring all CAFOs, or all new CAFOs, to obtain an individual permit,
but considered this potentially burdensome to permit authorities. Using general permits to cover
classes of facilities by type of operation, by jurisdiction, or by geographic boundary such as a
watershed, offers positive environmental as well as administrative benefits.
EPA also considered identifying a threshold to establish when exceptionally large
facilities would be required to apply for an individual permit, such as 5,000 AU or 10,000 AU, or
by defining such a threshold as the largest ten percent or 25 percent of CAFOs within each
sector. EPA did not propose this approach because, as shown in table 7-9, it was difficult to
establish a consistent basis across sectors for making this determination. While EPA's cost
models assume that 30% of operations might obtain individual permits, and thus such thresholds
are taken into account in the cost analyses for this proposed regulation, EPA did not believe
particular thresholds would be appropriate across all sectors or all states. EPA is interested in
comments on whether it should establish a size threshold above which individual permits would
be required, recommendations of what the threshold should be, and data to support such
recommendations.
Table 7-9. Potential Definition of "Exceptionally Large" Facilities
197
-------
Animal Sector
Beef/Heifer
Dairy
Veal
Swine
Broiler
Layer
Turkey
5,000 AtF
Head
Equivalent
5,000
3,500
5,000
12,500
500,000
500,000
275,000
10,000 AU
Head
Equivalent
10,000
7,000
10,000
25,000
1,000,000
1,000,000
550,000
Top 10% (Est.)
Head
11,000
3,800
1,500
9,000
150,000
500,000
100,000
AU
11,000
5,440
1,500
3,600
1,500
5,000
1,820
Top 25% (Est)
Head
3,500
2,170
950
5,000
110,000
180,000
55,000
AU
3,500
3,100
950
2,000
1,100
1,800
1,000
Note; Except for beef, these values are interpolations based on best professional judgement
EPA also considered whether operations that significantly expand should be required to
reapply for a permit. Public concern has been expressed as to whether operations that
significantly expand should be required to undergo a public process to determine whether new
limits are necessitated by the expansion. EPA believes, however, that if the general permit
covers operations similar to the newly expanded operation, there would be no basis for requiring
an individual permit. In section VIE above, EPA also has explained why it would not be
appropriate to classify facilities that expand their production capacities as new sources. If a
member of the public believes that the requirements of a proposed general permit are not
adequate for CAFOs above a certain size, it should raise that issue when the permit authority
proposes the general permit and request that it be limited to certain size operations. As is
discussed above, the public could also petition the permit authority if it believes that a specific
facility should be covered by an individual permit.
Under existing regulations the permit authority may modify a permit if there are material
and substantial alterations to the permitted facility or activity that occur after the permit is issued
and justify different permit conditions. 40 C.F.R. 122.62(a)(l). The public would be able to
participate in the permit modification process to incorporate the new standards. 40 C.F.R.
123.5(c).
EPA is interested in comment on whether the above procedures are adequate to ensure
public participation or whether individual permits should be required for any of the categories of
facilities discussed above. Specifically, EPA is interested in comments on whether individual
permits should be required for a) facilities over a certain size threshold, b) new facilities; c)
facilities that are significantly expanding; d) facilities that have historical compliance problems;
or e) operations that are located in areas with significant environmental concerns.
3. Demonstrating No Potential to Discharge
198
-------
As described in section VTI.C.2.d above, today's proposal would require all CAFO
owners or operators to apply for an NPDES permit, based on a presumption that all CAFOs have
a potential to discharge pollutants to waters of the U.S. There would, however, be one exception
to this requirement: A CAFO owner or operator would not need to apply for a permit if it
received a determination by the permit authority that the CAFO does not have a potential to
discharge. It would be the CAFO owner's or operator's burden to ask for a "no potential to
discharge" determination and to support the request with appropriate data and information. See
proposed §122.23(c) and (e).
The term "no potential to discharge" means that there is no potential for any CAFO
manure or wastewaters to be added to waters of the United States from the operation's
production or land application areas, without qualification. For example, if a CAFO land applies
its manure according to a permit nutrient plan, it may not claim "no potential to discharge" status
on the basis that it would have runoff, but any runoff would be exempt as agricultural storm
water. CAFOs owners or operators should not be able to avoid permitting by claiming that they
already meet the land application requirements that would be in a permit -in this case, the
requirement of zero discharge from land application areas except for runoff from properly
applied manure and wastewater (see today's proposed effluent limitation guidelines). Moreover,
today's proposed effluent limitation guidelines would include not only restrictions on the rate of
land application but also a set of best management practices to further protect against inadvertent
discharges from land applied manure and wastewater (for example, the requirement for 100 foot
setbacks, consideration of timing of application, etc.). EPA's intention would be to require a
permit that imposes both types of requirements unless an operation has clearly established the
absence of a potential to discharge. A CAFO's claim that it already meets the restrictions on the
rate of land application would not ensure, as a permit would, that the CAFO has employed and is
continuing to employ these additional management practices.
Instead, EPA proposes to allow "no potential to discharge" status in order to provide
relief where there truly is no potential for a CAFO's wastes to reach the waters. This would
include, for example, CAFOs that are far from any water body, or those that have closed cycle
systems for managing their wastes and that do not land apply their wastes. In particular, EPA
believes that the act of land applying its manure and wastewater would, in many cases, be enough
by itself to indicate that a CAFO does have a potential to discharge. It would be very difficult, in
genera], for CAFOs that land apply their wastes to demonstrate that they have no potential to
discharge (although conceivably such a showing could be made if the physical features of the
site, including lack of proximity to the waters, slope, etc. warrant it).
It is only where there is no potential for a CAFO's wastes to reach the waters that EPA
believes it is appropriate not to require a permit. Indeed, where a CAFO has demonstrated that it
has no potential to discharge, it no longer qualifies as a point source under the Act (see Section
502(14), which defines "point source" to include conveyances such as CAFOs from which
pollutants "are or may be" discharged).
199
-------
Under today's proposal, the burden of proof to show that there is no potential to discharge
would be with the CAFO owner or operator, not the permitting authority. There would be a
presumption that the CAFO does have the potential to discharge unless the CAFO owner or
operator has rebutted this presumption by showing, to the satisfaction of the permit authority,
that it does not.
It is not EPA's intention to allow a broad interpretation of this provision but, rather, to
establish that "no potential to discharge" is to be narrowly interpreted and applied by permit
authorities. This provision is intended to be a high bar that provides an exemption only to those
facilities that can demonstrate to a degree of certainty that they have no potential to discharge to
the waters of the U.S.
Today's proposal would specify that an operation that has had a discharge within the past
five years cannot receive a determination that it has no potential to discharge. The Agency is not
proposing to specify further the exact conditions that would indicate that a facility has no
potential to discharge. However, any such demonstration would need to account for all manure
generated at the facility, specifying how the design of the animal confinement areas, storage
areas, manure and wastewater containment areas, and land application areas eliminates any
possibility of discharge to surface waters or to groundwater with a direct hydrological connection
to surface water. Further, the CAFO operator must be able to provide assurance that all CAFO-
generated manure and wastewater that is transported off-site are transferred to a recipient that
provides for environmentally appropriate handling, such as by: 1) land applying according to
proper agricultural practices as defined in this regulation; 2) obtaining an NPDES permit for
discharges resulting from land application; or 3) having other non-land application uses.
If an owner or operator is able to demonstrate no potential to discharge at the production
area, but cannot demonstrate an assurance that manure transported off-site is being appropriately
disposed of, the facility would be required to apply for a zero discharge permit that includes the
record keeping requirements described in section VILE, of today's proposal.
EPA requests comment on whether it should include additional specific criteria for
determining whether a CAFO has "no potential to discharge," and what those criteria should be.
The Agency is concerned that without more specific criteria, this provision could be subject to
abuse. Therefore, EPA is seeking comment on whether safeguards are necessary to ensure that
only those CAFOs which truly pose no risk to the environment are able to avoid permitting
requirements.
The fact that a CAFO owner or operator submits a request for a determination that the
facility has no potential to discharge would not change the deadline to apply for a permit. The
CAFO owner or operator would need to apply for a permit according to the date specified in
§122.23(f) unless it receives a no potential to discharge determination before that date. It would
200
-------
be inappropriate, in EPA's view, to allow otherwise - i.e., to postpone the deadline to apply for a
permit if the CAFO has not yet received a determination on its "no potential to discharge"
request. Under that approach, even CAFOs owners or operators who could not make a serious
claim of "no potential to discharge" could apply for such a determination simply as a way of
delaying the permitting process, and the process could in fact be delayed if permitting authorities
are faced with large numbers of such requests. We recognize that under the approach we are
proposing, some CAFOs who really do have no potential to discharge will be forced to file a
complete permit application if their permitting authority has not ruled on their request prior to the
deadline for the permit application. However, EPA expects there to be few such cases, since we
expect relatively few CAFOs to be able to demonstrate no potential to discharge; and in light of
the problems of the alternative approach, EPA's proposed approach seems preferable.
It is important to recognize that if a CAFO receives a "no potential to discharge"
determination but subsequently does have a discharge, that operation would be in violation of the
Clean Water Act for discharging without a permit. The "no potential to discharge" determination
would not identify an operation as forever a non-point source. To the contrary, there would be no
basis for excluding an operation from the requirements for point sources if it meets the criteria
for being a CAFO and has an actual discharge of pollutants to the waters. The operation, upon
discharging, would immediately revert to status as a point source.
EPA is requesting comment on whether the Director's "no potential to discharge"
determination should be subject to the same types of administrative procedures that are required
for the Director's decision to issue or deny a permit. That is, EPA is considering a requirement
that, before EPA or the State could issue a final determination that there is no potential to
discharge, the public would have the formal right to comment on, and EPA would have the
opportunity to object to (in authorized States), the Director's draft determination. These
procedures may be appropriate, for example, in light of anticipated public interest in the
Director's determination. Alternatively, EPA requests comment on not requiring the Director to
follow these procedures for public and EPA input into the Director's decision. EPA could
conclude that the types of procedures that apply to permitting decisions are not appropriate here
(since the "no potential to discharge" determination is neither the issuance nor denial of a
permit), but that the environment is sufficiently protected by the fact that any actual discharge
from either the production or land application areas would be a violation of the Clean Water Act.
Under this latter interpretation, EPA would not itself follow the types of procedures that apply to
permit decisions (such as providing the public with the formal opportunity to submit public
comments on the Director's draft decision) and would not require States to follow those
procedures; however, States could make those procedures available if they chose, since they
would be more stringent than the procedures required by EPA. EPA requests comment on which
of these two alternative approaches to adopt in the final rule.
It should be noted that under the three-tier proposal, in some cases owners of operations
in the middle tier (300 AU to 1,000 AU) would not need to demonstrate "no potential to
discharge" to avoid a permit because they would not be defined as CAFOs in the first instance.
201
-------
That is, if they do not meet any of the conditions under that regulatory option for being defined as
a CAFO (insufficient storage and containment to prevent discharge, production area located
within 100 feet of waters, evidence of discharge in the last five years, land applying without a
PNP, or transporting manure to an off-site recipient without appropriate certification) then they
would not be subject to permitting as CAFOs. (They could, however, still be subject to NPDES
permitting as other, non-CAFO types of point sources, as discussed elsewhere in this preamble.)
4. NPDES Permit Application Form 2B
EPA is proposing to amend the NPDES permit application form 2B for CAFOs and
Aquatic Animal Production Facilities in order to reflect the revisions included in today's
proposed rulemaking, and in order to facilitate consideration of the permit application. EPA is
proposing to require applicants for individual CAFO permits to submit the following
information:
!
• acreage available for agricultural use of manure and wastewater;
• estimated amount of manure and wastewater to be transferred off-site
• 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 i1
animals are grown, fed, or medicated; or otherwise exercises control over the \>
operations of the facility, in other words, that may exercise substantial operational j!
control. ||
• provide a copy of the draft PNP. >|
• whether buffers, setbacks or conservation tillage are implemented to protect water ']
quality. \,
• on the topographic map required by Form 1, identify latitude and longitude of the .;
production area, and identify depth to ground water that may be hydrologically ;;
connected to surface water, if any ;
.i
>i
See proposed §122.21(i)(l).
The existing Form 2B currently only requires: whether the application is for a proposed or '
existing facility; type and number of animals in confinement (open confinement or housed under j!
roof); number of acres for confinement feeding; if there is open confinement, whether a runoff :i
diversion and control system has been constructed and, if so, indicate whether the design basis is l|
for a 10-year, 24-hour storm, a 25-year, 24-hour storm, or other, including inches; number of
acres contributing to drainage; design safety factor; name and official title, phone number, and '!
signature. In addition, § 122.21(f) of the current NPDES regulation requires applicants to submit
202
-------
V
a topographic map extending one mile beyond the facility's boundary that shows discharge points
and surface water bodies in the area.
EPA is proposing to update form 2B and requests comment on what information should
be required of applicants for individual permits.
203
-------
See the instructions on the reverse.
FORM
2B
NPDES
EPA LD. NUMBER (copy horn Ken 1 of Fern 1)
DRAFT-im
US. ENVIRONMENTAL PROTECTION AGENCY
C D A APPLICATION FOR PERMIT TO DISCHARGE WASTEWATEfl
C I H CONCENTRATED ANIMAL FEEDING OPERATIONS AND AQUATIC ANIMAL PRODUCTION FACILITIES
GOflSOatfetdtf rBfJJtitS PrQfff3/R
L GENERAL INFORMATION
A. TYPE OF BUSINESS
B. LEGAL DESCRIPTION OF FACILITY LOCATION
C.FACIUTY OPERATION
STATUS
Q 1. Concentrated Animal Feeding Operation
(complete items B, C, D, and section It)
Q 2. Concentrated Aquatic Animai Production
Facility (complete items B,C, and section III)
D 1. Existing Facility
D2. Proposed Facility
D. FACILITY OWNERSHIP
1, Does an entity other than the applir^ drect the actrvi^ D No
andl.B.?
2. Does an entity other than the applicant own the animals at the facility identified in Form 1 and I.B.? D No
3. Does an entty other than the applicant specify how the animals at ltefacirityiderrfliedinlB.8re0rown,fedor
medicated?
4. If yes was the answer for questions D1.D2, or 03, what is the name and address of the responsible enfily?
Responsible , " ' Responsible
Entity Name: . . ' •' •' ._ Entity Address:
D No
D Yes
D Yes
D Yes
U. CONCENTRATED ANIMAL FEEDINGS/OPERATION CHARACTERISTICS
A. TYPE AND NUMBER OF ANIMALS
B. LAND APPLICATION
1. TYPE
2. ANIMALS
NO. IN OPEN
CONFINEMENT
NO. HOUSED
UNDER ROOF
C. TOTAL NUMBER OF ANIMALS CONFINED AT THE FACILITY
D. NUMBER OF ACRES FOR CONFINEMENT FEEDING
1. How much manure is generated annually by the facility?
tons
2. Is manure generated by the CAFO land applied?
DYes oNo ,
rf Yes, rxw many acres of land under the control of the
applicant are available for applying the CAFOs
nanuretoastorater? ,„, JTTV,r acres
3. is manure generated by the CAFO transferred to off-site
recipients? a Yes a No. ff yes, what is the estimated
quantity transferred annually? ___^ tons
E. IF THERE IS OPEN CONFINEMENT, HAS A RUNOFF DIVERSION AND CONTROL SYSTEM BEEN CONSTRUCTED?
0 Yes (complete Items 1,2, & 3 below) o No (go to section IV.)
1. What is the design basis for the control system? o a. 10 year, 24-Hour Storm (specify inches J a b. 25 year, 24-Hour Storm (specify inches )
D c. Other (specify inches and type ; )
2. Report the number of acres of contributing drainage. ' acres.
3. Report the design safety factor.
F. PERMIT NUTRIENT PLAN (PNP)
Has a certified PNP been developed and is being implemented for the facility? u Yes a No
If yes, the applicant is to include a copy of the PNP with the application.
If No, when will the certified PNP be developed and implemented. Date;,
_. A draft PNP must be submitted with this sppffcsbon that, at a
minimum, demonstrates that there is adequate land available to the CAFO operator to comply with the land application provisions of 40 CFR Part 412 or
describes an alternative to land application that is being implemented.
Q. CONSERVATION PRACTICES
Please check arry of the folkiwing rxnservaticn practices r^
o Buffers o Setbacks o Conservation Tillage
204
-------
III. CONCENTRATED AQUATIC ANIMAL PRODUCTION FAC1ITY CHARACTERISTICS
A. For each outfall give the maximum daily flow, maximum 30-day How, and the
long-term average tew.
B. Indicate the total number of ponds, raceways, and similar structures in your
facility.
1. Outfall No.
2. Flow {gallons per fey)
a. Maximum Daily
b. Maximum 30
Pay
1. Ponds
c. Long Term
Average
2. Raceways •
3. Other
C. Provide the name of the receiving water and the source of water used by your
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
b. Harvestable Weight (pound!?)
(1) Total Yearly (2) Maximum
fa. HaiyeslahteWeioM (pounds!
(1) Total Veaity
(2) Maximum
E. Report the total pounds of food fed during the calendar month of maximum
feeding,
1. Month
2, Pounds of Food
/ certify under penalty olla* thai I have personally examined and am laminar with the information submitted in this affixation ami all attachments and that, based on
my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate and complete. I am man that
there are significant penalties for submitting false mtomaa'on, including the possibility of fine and imprisonment.
A. Name and Otficial Title (pnn/o
C. Signature
B. Phone No. (area code and no.)
D. Date Signed
205
-------
INSTRUCTIONS
General
This 1am must tm completed by en applicants who cheek "yes" to Bern tf-6
In Form 1. Mot all animaJ feeding operations or fefi (amis are required to obtain
NPDES permits. Exclusions are based en size and occurrence of discharge. See
the desertion of these statutory and regulatory exclusions in the General
Instructions that accompany Font) 1.
For aquatic animal production facilities, the size cutoffs aw based ort whether the
species are warm water or cold water, on the production weight per year in
harvestable pounds, and on tf>e amount ol feeding in pounds of food (foroatf
water species). Also, facilities which discharge less than 30 days per year, or only
during periods of excess runoff (for warn mater SsHj ate not required to hive a
permit.
Refer to the Form 1 instructions to determine where to file this font).
HemM
See the note above and the General Instructions which accompany Fomt 1 to be
sure that your facility is a toncentrattd animal feeding operation' (CAFO).
KernM
Irse this spaw to grveawcnplete legal description of y^
including name, address, end tataudeflongitude. -
Itemt-C
Check "proposed ' 3 your facility is not now in operation or does not currently meet
the definition oi a CAFO in accordance with the information found in the General
Instructions that accompany Forml. ' .
ItemH) ." - . -""". ••.'•-•:. -- : •
The applicant must answer questions I.D, 1 -3 to provide information concerning
whether an entity other than the applicant exercises substantial operational control
over the facility. If the answer is yes to any ol the questions contained in Hem U>.
the name and address of the entity are lobe provided by the applicant
Bern II
Supply afl information in item If 8 you checked (1 > in Item W.
ttemlM
Give the maximum number of each type of animal in open confinement or housed
under roof (either partially or totally) wfiich aie held at your facility for a total of 45
days or more in any 12 month period.
Use the following categories for types of animal:
Mature Dairy Cattle; Veal; Cattle (other than mature dairy or veal);
Swite (over 25 kilograms); Swine (less than 25 kilograms): Noises;
Sheep or Lambs; Turkeys; Chickens (Laying Hens/Broilers); Ducks.
Kern M
Provide the total amount ot manure generated annually by the facility.
Identify if manure generated by the facility is to be land applied and the
number of acres, under the control of the CAFO operator, suitable for
application. If the answer to question 3. is yes, provide the estimated
annual quantity of manure and wastewaler that the applicant plans to
transfer off-site.
Itemn-C
Provide the total number of animals confined at the facility.
tern D-D
Give onrylhe area used tor the anirrai confinement or feeding taeJity. Do net
include any area used for growing or operating feed.
Item IK
Check^rfanysystemforcollectionofrunoirfKubaenconstnKted. Supply the
dc
tomll-F
Provide information concerning the status of the development of a certified PNP for
the facility. (Note: tor new facilities the certified PNP must be included with Forni
28.)
drafl PNP and an estimated completion date. The draft plan must, at a minimum,
demonstrate that there is adequate land available » the operator to comply with
the land appscatat provisions of 40 CFR Part 412 or describe an alternative to
land application that the operator intends to implement.
bun Hi
Check any of their
the fady to control wnoff and protect water quality.
Bern ID
SupptyaIirdbmTatonnf^lllrIywcriecked(2)inltemt-A.
Bern DM
Outfalls should be numbered to correspond with the map submitted in hem » of
Forml. Values given forflow should be representative of your normal operation.
fonamw&ty^isteni^mme^&toiiomntogweraGalarsilat
day. Themaximum30^yi1owistneaveragedrreasuredda%f«w$DvBrihe
calendar month of highest flow. The tong^rm average BOW is the average ol
measure daily tows over a calendar year.
Bern 04
Gh«tr» total nuri*er(rfo5sciet»pw)
time for reviewing Instructions, searching existing data temen,
gathering end nafrttafninQ the needed date* and con9ietin0 tnd
ttviewing ine collection of Infontiattonw Send continents nsvoBigi
the burden evtlnute w any oilier upect of tfUf cotiectjon of
WbrmaHon to the chief, Mormtion Policy Branch (PW-223), US,
environmental Protection Agency, 1200 Penraytvinla Ave, NW,
Washington, PC 20^60, a«l the Of^rihfornBtion end BeguWwy
Affairs, OfSee of Management and Budget, Washington, DC 20503,
marked Attention: Desk Officer for EPA.
206
-------
It is anticipated that as a result of the requirement that all CAFOs have a duty to apply, there will
be a large number of CAFOs applying for NPDES permits. Some of these operations represent a
greater risk to water quality than others. In order for the permit writer to prioritize NPDES
permit writing activities based on the risk to water quality, Section G is being proposed to add to
Form 2B as a screening mechanism. Those facilities without buffers, setbacks, or conservation
tillage potentially pose a greater risk to water quality; therefore the permit writer could use this
information to develop and issue NPDES permits to these facilities on an expedited basis.
VIII. What Changes to the Feedlot Effluent Limitations Guidelines Are Being Proposed?
A. Expedited Guidelines Approach
EPA has developed today's proposed regulation using an expedited rulemaking process
which relies on communication between EPA, the regulated community, and other stakeholders,
rather than formal data and information gathering mechanisms. At various stages of information
gathering, USDA personnel, representatives of industry and the national trade associations,
university researchers, Agricultural Extension agencies, States, and various EPA offices and
other stakeholders have presented their ideas, identified advantages and disadvantages to various
approaches, and discussed their preferred options.
EPA encourages full public participation in commenting on these proposals.
B. Changes to Effluent Guidelines Applicability
1. Who is Regulated by the Effluent Guidelines?
The existing effluent guidelines regulations for feedlots apply to operations with 1,000
AU and greater. EPA is proposing to establish effluent guidelines requirements for the beef,.
dairy, swine, chicken and turkey subcategories that would apply to any operations in these
subcategories that are defined as a CAFO under either the two-tier or three-tier structure. Also as
discussed in detail in Section VII.B.3, EPA is also requesting comment on an option under which
te effluent guidelines proposed today would not be applicable to facilities under 1,000 AU.
Under this approach, AFOs below this threshold would be permitted based on an alternate set of
effluent guidelines, or the best professional judgment of the permit writer. After evaluating
public comments EPA may decide to consider this option. At that time EPA would develop and
make available for comment an analysis of why it is appropriate to promulgate different effluent
guidelines requirements or no effluent guidelines for CAFOs that have between 300 and 1,000
AU as compared to the effluent guidelines for operations with greater than 1,000 AU.
207
-------
EPA also proposes to establish a new subcategory that applies to the production of veal :;
cattle. Veal production is included in the beef subcategory in the existing regulation. However, !;
veal production practices and wastewater and manure handling are very different from the •!
practices used at beef feedlots; therefore, EPA proposes to establish a separate subcategory for
veal.
Under the three-tier structure the proposed effluent guidelines requirements for the beef, |j
dairy, swine, veal and poultry subcategories will apply to all operations defined as CAFOs by
today's proposal having at least as many animals as listed below.
200 mature dairy cattle (whether milked or dry);
300 veal;
300 cattle other than mature dairy cattle or veal;
750 swine weighing over 55 pounds;
3,000 swine weighing 55 pounds or less;
16,500 turkeys; or
30,000 chickens.
Under the two-tier structure, the proposed requirements for the beef, dairy, swine, veal
and poultry subcategories will apply to all operations defined as CAFOs by today's proposal
having at least as many animals as listed below.
350 mature dairy cattle (whether milked or dry);
500 veal;
500 cattle other than mature dairy cattle or veal;
1,250 swine weighing over 55 pounds;
5,000 swine weighing 55 pounds or less;
27,500 turkeys; or
50,000 chickens.
EPA is proposing to apply the Effluent guidelines requirements for the beef, dairy, veal,
swine, chicken and turkey subcategories, to all operations in these subcategories that are defined
as CAFOs under either of today's proposed permitting scenarios. Operations designated as
CAFOs are not subject to the proposed effluent guidelines.
EPA is proposing to rename the Effluent Guidelines Regulations, which is entitled
Feedlots Point Source Category. Today's proposal changes the name to the Effluent Guidelines
Regulation for the CAFOs Point Source Category. EPA is proposing this change for consistency
and to avoid confusion between who is defined as a CAFO under Part 122 and whether the
Effluent guidelines apply to the operation.
EPA is not proposing to revise the Effluent guidelines requirements or the applicability
for the horses, sheep and lambs and ducks subcategories even though the definition of CAFO for
these subcategories is changing as described previously in Section VII. These sectors have not
208
-------
undergone the same level of growth and consolidation that the other livestock sectors have
experienced in the past 25 years. In 1992, an estimated 260 farms in these sectors were
potentially CAFOs based on size, and relatively few of these operations were expected to
maintain horses or sheep in confinement. Finally, the CAFOs in these sectors have not been
identified as significant contributors of wastewater pollutants that result in water quality
impairment.
EPA has evaluated the technology options described in this section and evaluated the
economic achievability for these technologies for all operations with at least as many animals
listed above for both the two-tier and three-tier NPDES structures. The technology requirements
for operations defined as CAFOs under the two-tier structure are the same requirements for
operations defined as CAFOs under the three-tier structure. Therefore for the purpose of
simplifying this discussion and emphasizing the differences in technology requirements for the
various technology options, the following discussion will not distinguish between the two CAFO
definition scenarios. For more discussion of the costs and differences in costs between the
different CAFO definition scenarios, refer to Section X of this preamble or the EA. For
discussion of the benefits achieved for the different technology options and scenarios, refer to
Section XI of this preamble.
EPA proposes to make the Effluent guidelines and standards applicable to those
operations that are defined as CAFOs as described previously under Section VH. EPA is not
proposing to apply the Effluent guidelines to those operations that fall below the proposed
thresholds but are still designated as CAFOs. As described in Section YD, EPA anticipates that
few AFOs will be designated as CAFOs and that these operations will generally be designated
due to site-specific conditions. Examples of these conditions could include, not capturing
barnyard runoff which runs directly into the stream, or siting open stockpiles of manure
inappropriately. EPA believes that establishing national technology based requirements for
designated CAFOs is not efficient or appropriate because historically a small number of facilities
has been designated and facilities which are designated in the future will be designated for a wide
variety of reasons. EPA believes that a permit will best control pollutant discharges from those
operations if it is based on the permit writer's best professional judgment and is tailored to
address the specific problems which caused the facility to be designated.
EPA is proposing to make substantial changes to the applicability for chickens, mixed
animal operations and immature animals as described below.
Chickens. The current regulations apply to chicken operations with liquid manure
handling systems or continuous flow watering systems. Unlimited continuous flow watering
systems have been replaced by more efficient systems for providing drinking water to the birds.
Consequently, many state permitting authorities and members of the regulated community
contend that the existing effluent guidelines do not apply to most broiler and laying hen
operations, despite the fact that chicken production poses risks to surface water and groundwater
quality from improper storage of dry manure, and improper land application. EPA is proposing
209
-------
to clarify the effluent guidelines to ensure coverage of broiler and laying hen operations with
manure handling. The proposed applicability is identical to the definition of chicken CAFOs i'
described in Section VH.C.2.f. EPA is thus proposing to establish effluent guidelines forehickeii
operations that use dry manure handling systems regardless of the type of watering system or
manure handling system used. EPA is using the term chicken in the regulation to include laying
hens, pullets, broilers and other meat type chickens. See Section VD for more details on the jj
proposed applicability threshold for chickens. ;
Mixed Animal Types. Consistent with the proposed changes to the definition of CAFO asj
described in Section VH.C.2.b, EPA is proposing to eliminate the calculation in the existing ;
regulation that apply to mixed animals operations.
Immature Animals. EPA is proposing to apply technology based standards to swine
nurseries and to operations that confine immature dairy cows or heifers apart from the dairy.
EPA currently applies technology based standards to operations based on numbers of swine each l|
weighing over 55 pounds. Modem swine production has a phase of production called a nursery !
that only confines swine weighing under 55 pounds. These types of operations are currently . i
excluded from the technology based standards, but are increasing in both number and size.
Therefore, EPA proposes to establish technology based standards to operations confining
immature pigs. Under the two-tier structure EPA proposes to establish a threshold of 5,000
immature pigs or pigs weighing 55 pounds or less. Under the proposed three-tier structure
operations that confine between 3,000 and 10,000 immature pigs could be defined as CAFOs and
all operations with more than 10,000 immature pigs would be CAFOs. EPA also proposes to
establish requirements for immature heifers when they are confined apart from the dairy, at either
stand alone heifer operations similar in management to beef feedlots, or at cattle feedlots.
Therefore EPA proposes to include heifer confinement off-site from the dairy under the beef
feedlot subcategory, and today's proposed technology standards for beef feedlots would apply to
those stand alone heifer operations defined as CAFOs. Also any feedlot that confines heifers
along with cattle for slaughter is subject to the beef feedlot requirements.
EPA is proposing to establish a new subcategory for the effluent guidelines regulations
which applies to veal operations. The existing regulation includes veal production in the beef
cattle subcategory. EPA is proposing to create a distinct subcategory for veal operations because
these operations use different production practices than other operations in the beef subcategory
however, we are proposing to retain the sized threshold that pertained to veal while included in
the beef subcategory. Veal operations maintain their animals in confinement housing as opposed
to open outdoor lots as most beef feedlots operate. They also manage their manure very
differently than typical operations in the beef cattle subcategory. Due in large part to the diet the
animals are fed, the manure has a lower solids content and is handled through liquid manure
handling systems, such as lagoons, whereas beef feedlots use dry manure handling systems and
only collect stormwater runoff in retention ponds. EPA is proposing to define a veal CAFO as
any veal operation which confines 300 veal calves or greater under the three-tier structure, or 500
veal calves or greater under two-tier structure.
210
-------
C. Changes to Effluent Limitations and Standards
EPA is today proposing to revise BAT and new source performance standards for the
beef, dairy, veal, swine and poultry subcategories. EPA is proposing to establish technology-
based limitations on land application of manure to lands owned or operated by the CAFO,
maintain the zero discharge standard and establish management practices at the production area.
1. Current Requirements
The existing regulations, which apply to operations with 1,000 AU or greater, require
zero discharge of wastewater pollutants from the production area except when rainfall events,
either chronic or catastrophic cause an overflow of process wastewater from a facility designed,
constructed and operated to contain all process generated wastewaters plus runoff from a 10-year,
24-hour event under the BPT requirements and a 25-year, 24-hour event under the BAT and
NSPS requirements. In other words, wastewater and wastewater pollutants are allowed to be
discharged as the result of a chronic or catastrophic rainfall event so long as the operation has
designed, constructed and operated a manure storage and/or runoff collection system to contain
all process generated wastewater, including the runoff from a specific rainfall event. The effluent
guidelines do not set discharge limitations on the pollutants in the overflow,
2. Authority to Establish Requirements Based on Best Management
Practices
The regulations proposed today establish a zero discharge limitation and include
provisions requiring CAPOs to implement best management practices (BMPs) to prevent or
othenvise contain CAFO waste to meet that limitation at the production area. The regulations
also establish non-numeric effluent limitations in the form of other BMPs when CAFO waste is
applied to land under the control of the CAFO owner or operator. For toxic pollutants of concern
in CAFO waste, specifically cadmium, copper, lead, nickel, zinc and arsenic, EPA is authorized
to establish BMPs for those pollutants under CWA section 304(e). EPA also expects reductions
in conventional and nonconventional water pollutants as a result of BMPs. To the extent these
pollutants are in the waste streams subject to 304(e), EPA has authority under that section to
regulate them. EPA also has independent authority under CWA sections 402(a) and 501(a) and
40 CFR 122.44(k) to require CAFOs to implement BMPs for pollutants not subject to section
304(e). In addition, EPA has authority to establish non-numeric effluent limitations guidelines,
such as the BMPs proposed today, when it is infeasible to establish numeric effluent limits.
Finally, EPA is authorized to impose the BMP monitoring requirements under section 308(a).
Production Area
EPA has determined that the BMPs for the production area are necessary because the
requirement of zero discharge has historically not been attained. As described in Section V, of
211
-------
this preamble, there are numerous reports of discharges from CAFOs that are unrelated to storm (
events which would be less likely to occur if the proposed BMPs described below were required, j
Section 304(e) provides that "[t]he Administrator, after consultation with appropriate
Federal and State agencies and other interested persons, may publish regulations, supplemental to
any effluent limitations specified under (b) and (c) of this section for a class or category of point
sources, for any specific pollutant which the Administrator is charged with a duty to regulate as a
toxic or hazardous pollutant under section 1317(a)(l) or 1321 of this title, to control plant site
runoff, spillage or leaks, sludge or waste disposal, and drainage from raw material storage which
the Administrator determines are associated with or ancillary to industrial manufacturing or
treatment process within such class or category of point sources and may contribute significant
amounts of such pollutants to navigable waters." § 304(e). There are studies showing the
presence of a number of listed metals in animal manure. Numerous sources such as the
American Society of Agricultural Engineers, and Universities such as North Carolina State
University have acknowledged the presence of metals in manure. Metals are present in the
manure because they are added or present in the animal feed. EPA has estimated metal loadings
being applied to land before and after this regulation would take effect. Although the
concentration of metals present in untreated manure are less than the limits for metals established
in EPA's biosolids regulations (40 CFR Part 503), EPA still anticipates that there would be a
substantial reduction in pollutant loadings reaching the edge of the field through use of the land
application practices included in today's proposal. See the Development Document for more
discussion.
EPA's authority to require these BMPs does not require a determination that the toxics
present in CAFO waste are significant. The federal courts have held that EPA has extensive
authority to carry out its duties under the Clean Water Act:
EPA is not limited by statute to the task of establishing effluent standards and issuing
permits, but is empowered by section 501 (a) of the Act to prescribe regulations necessary to carry
out its functions under the Act. 33 U.S.C. § 1361(a). It is also clear that permissible conditions
set forth in NPDES permits are not limited to establishing limits on effluent discharge. To the
contrary, Congress has seen fit to empower EPA to prescribe as wide a range of permit
conditions as the agency deems appropriate in order to assure compliance with applicable
effluent limits. 33 U.S.C. § 1342(a)(2); see al$o id § 1314(e). NRDC v. EPA, 822 F.2d 104,
122 (D.C. Cir. 1987).
This authority operates independent of section 304(e). EPA's authority under section
402(a)(2) to establish NPDES permit conditions, including BMPs, for any pollutant when such
conditions are necessary to carry out the provisions of the statute has been further implemented
through regulations at 40 CFR 122.44(k). Although a requirement to establish and implement
BMPs of the type proposed in this regulation could be imposed on a case-by-case basis, EPA has
decided to promulgate this requirement on a categorical basis for those facilities which are
CAFOs by definition. In light of the more than twenty years of experience with the regulation of
212
-------
CAFOs and their failure to achieve the zero discharge limit originally promulgated, EPA has
determined that certain management practices are necessary to ensure that the zero discharge
limit is actually met. The stated goal of the Clean Water Act is to eliminate the discharge of
pollutants into the Nation's waters. CWA section 101(a)(l). EPA has determined that these
BMPs, by preventing or controlling overflows, leaks or intentional diversions, are an important
step toward that goal.
Finally, EPA has authority to impose monitoring and recordkeeping requirements under
section 308 of the Act. As described below EPA is proposing to require that CAFOs periodically
sample their manure and soils to analyze for nutrient content. This is necessary to both
determine what is the appropriate rate to land apply manure and to ensure that the application rate
is appropriate. The proposed rule would also require CAFOs to conduct routine inspections
around the production area to ensure that automated watering lines are functioning properly, and
to ensure that the manure level for liquid systems is not threatening a potential discharge. The
CAFO would also maintain records that document manure application, including equipment
calibration, volume or amount of manure applied, acreage receiving manure, application rate,
weather conditions and timing-of manure.application, application method, crops grown and crop
yields. These records will provide documentation that the manure was applied in accordance
with the PNP and has not resulted in a discharge of pollutants in excess of the agricultural use.
EPA has determined that these practices are necessary in order to determine whether an owner or
operator of a CAFO is complying with the effluent limitation. Establishment and maintenance of
records, reporting, and the installation, use and maintenance of monitoring equipment are all
requirements EPA has the authority to impose. 33 U.S.C. § 1318(a).
Land Application Areas
For the land application areas of a CAFO, EPA is proposing a nonnumeric effluent
limitation consisting of best management practices. The D.C. Circuit has concluded that "[w]hen
numerical effluent limitations are infeasible, EPA may issue permits with conditions designed to
reduce the level of effluent discharges to acceptable levels." NRDC v. Costle. 568 F.2d 1369,
1380 (D.C. Cir. 1977); 40 C.F.R §122.44(k)(3). EPA has determined that it is infeasible to
establish a numeric effluent limitation for discharges of land applied CAFO waste and has also
determined that the proposed BMPs are the appropriate ones to reduce the level of discharge
from land application areas.
The proposed BMPs constitute the effluent limitation for one wastestream from CAFOs.
The statutory and regulatory definition of "effluent limitation" is very broad - "any restriction"
imposed by the permitting authority on quantities, discharge rates and concentrations of a
pollutant discharged into a water of the United States. Clean Water Act § 502(11), 40 CFR §
122.2. Neither definition requires an effluent limitation to be expressed as a numeric limit.
Moreover, nowhere in the CWA does the term "numeric effluent limitation" even appear and the
courts have upheld non-numeric restrictions promulgated by EPA as effluent limitations. See
NRDC v. EPA. 656 F.2d 768, 776 (D.C. Cir. 1981) (holding that a regulation which allows
213
-------
municipalities to apply for a variance from the normal requirements of secondary sewage
treatment is an "effluent limitation" for purposes of review under § 509(b): "[WJhile the j
regulations do not contain specific number limitations in all cases, their purpose is to prescribe in |
technical terms what the Agency will require of section 131 l(h) permit applicants."). Thus, the \
statutory definition of "effluent limitation" is not limited to a single type of restriction, but rather '
contemplates a range of restrictions that may be used as appropriate. Likewise, the legislative
history does not indicate that Congress envisioned a single specific type of effluent limitation to
be applied in all circumstances. Therefore, EPA has a large degree of discretion in interpreting
the term "effluent limitation," and determining whether an effluent limitation must be expressed
as a numeric standard. EPA has defined BMPs as "schedules of activities, prohibitions of
practices, maintenance procedures, and other management practices to prevent or reduce the
pollution of waters of the United States." 40 CFR § 122.2. A BMP may take any number of
forms, depending upon the problem to be addressed. Because a BMP must, by definition,
"prevent or reduce the pollution of waters of the United States," the practices and prohibitions a
BMP embodies represent restrictions consistent with the definition of an effluent limitation set
out in CWA§ 502(11).
Effluent limitations in the form of BMPs are particularly suited to the regulation of
CAFOs. The regulation of CAFOs often consists of the regulation of discharges associated with
storm water. Storm water discharges can be highly intermittent, are usually characterized by very
high flows occurring over relatively short time intervals, and carry a variety of pollutants whose
nature and extent varies according to geography and local land use. Water quality impacts, in
turn, also depend on a wide range of factors, including the magnitude and duration of rainfall
events, the time period between events, soil conditions, the fraction of land that is impervious to
rainfall, other land use activities, and the ratio of storm water discharge to receiving water flow.
CAFOs would be required to apply their manure and wastewater to land in a manner and rate that
represents agricultural use. The manure provides nutrients, organic matter and micronutrients
which are very beneficial to crop production when applied appropriately. The amount or rate at
which manure can be applied to provide the nutrient benefits without causing excessive pollutant
discharge will vary based on site specific factors at the CAFO. These factors include the crop
being grown, the expected crop yield, the soil types, and soil concentration of nutrients
(especially phosphorus), and the amount of other nutrient sources to be applied. For these
reasons, EPA has determined that establishing a numeric effluent limitation guideline is
infeasible.
EPA has determined that the various BMPs specified in today's proposed regulation
represent the minimum elements of an effective BMP program. By codifying them into a
regulation of general applicability, EPA intends to promote expeditious implementation of a
BMP program and to ensure uniform and fair application of the baseline requirements. EPA is
proposing only those BMPs which are appropriate on a nationwide basis, while giving both
States and permittees the flexibility to determine the appropriate practices at a local level to
achieve the effluent limitations. The BMP's (described below) that are included in the proposed
technology options are necessary to ensure that manure and wastewater are utilized for their
214
-------
nutrient content in accordance with agricultural requirements for producing crops or pastures.
EPA also believes that the proposed regulations represent an appropriate and efficient use of its
technical expertise and resources that, when exercised at the national level, relieves state permit
writers of the burden of implementing this aspect of the Clean Water Act on a case-by-case basis.
3. Best Practicable Control Technology Limitations Currently Available (BPT)
EPA is proposing to establish BPT limitations for the beef, dairy, swine, veal chicken and
turkey subcategories. There are BPT limitations in the existing regulations which apply to
CAFOs with 1,000 AU or more in the beef, dairy swine and turkey subcategories. BPT requires
that these operations achieve zero discharge of process wastewater from the production area
except in the event of a 10-year, 24-hour storm event. EPA is proposing to revise this BPT
requirement and to expand the applicability of BPT to all operations defined as CAFOs in these
subcategories including CAFOs with fewer than 1,000 AU.
The Clean Water Act requires that BPT limitations reflect the consideration of the total
cost of application of technology in relation to the effluent reduction benefits to be achieved from
such applications. EPA considered two options as the basis for BPT limitations.
Option 1. This option would require zero discharge from a facility designed, maintained
and operated to hold the waste and wastewater, including storm water, from runoff plus the 25-
year 24-hour storm event. Both this option and Option 2 would add record keeping requirements
and practices that ensure this zero discharge standard is met. As described in Section V there are
numerous reports of operations discharging pollutants from the production area during dry
weather. The reason for these discharges varies from intentional discharge to poor maintenance
of the manure storage area or confinement area. EPA's cost models reflect the different
precipitation and climatic factors that affect an operations ability to meet this requirement; see
Section X and the Development Document for further details.
Option 1 would require weekly inspection to ensure that any storm water diversions at the
animal confinement and manure storage areas are free from debris, and daily inspections of the
automated systems providing water to the animals to ensure they are not leaking or spilling. The
manure storage or treatment facility would have to be inspected weekly to ensure structural
integrity. For liquid impoundments, the berms would need to be inspected for leaking, seepage,
erosion and other signs of structural weakness. The proposal requires that records of these
inspections would be maintained on-site, as well as records documenting any problems noted and
corrective actions taken. EPA believes these inspections are necessary to ensure proper
maintenance of the production area and prevent discharges apart from those associated with a
storm event from a catastrophic or chronic storm.
Liquid impoundments (e.g., lagoons, ponds and tanks) that are open and capture
precipitation would be required to have depth markers installed. The depth marker indicates the
maximum volume that should be maintained under normal operating conditions allowing for the
215
-------
volume necessary to contain the 25-year, 24-hour storm event. The depth of the impoundment
would have to be noted during each week's inspection and when the depth of manure and
wastewater in the impoundment exceeds this maximum depth, the operation would be required to
notify the Permit Authority and inform him or her of the action will be taken to address this
exceedance. Closed or covered liquid impoundments must also have depth markers installed,
with the depth of the impoundment noted during each week's inspection. In all cases, this liquid
may be land applied only if done in accordance with the permit nutrient plan (PNP) described
below. Without such a depth marker, a CAFO operator may fill the lagoons such that even a
storm less than a 25-year, 24-hour storm causes the lagoon to overflow, contrary to the discharge
limit proposed by the BPT requirements.
An alternative technology for monitoring lagoon and impound meat levels is remote
sensors which monitor liquid levels in lagoons or impoundments. This sensor technology can be
used to monitor changes in liquid levels, either rising or dropping levels, when the level is
changing rapidly can trigger an alarm. These sensors can also trigger an alarm when the liquid
level has reached a critical level The alarm can transmit to a wireless receiver to alert the CAFO
owner or operator and can also alert the permit authority. The advantages of this type of system
is the real time warning it can provide the CAFO owner or operator that his lagoon or
impoundment is in danger of overflowing. It can provide the CAFO operator an opportunity to
better manage their operations and prevent catastrophic failures. These sensors are more
expensive than depth markers; however, the added assurance they provide in preventing
catastrophic failures may make them attractive to some operations.
Option 1 would require operations to handle dead animals in ways that prevent
contributing pollutants to waters of the U.S. EPA proposes to prohibit any disposal of dead
animals in any liquid impoundments or lagoons. The majority of operations have mortality
handling practices that prevent contamination of surface water. These practices include
transferring mortality to a rendering facility, burial in properly sited lined pits, and composting.
Option 1 also would establish requirements to ensure the proper land application of
manure and other process wastes and wastewaters. Under Option 1 land application of manure
and wastewater to land owned or operated by the CAFO would have to be performed in
accordance with a PNP that establishes application rates for manure and wastewater based on the
nitrogen requirements for the crop. EPA believes that application of manure and wastewater in
excess of the crop's nitrogen requirements would increase the pollutant runoff from fields,
because the crop would not need this nitrogen, increasing the likelihood of it being released to
the environment.
In addition, Option 1 includes a requirement that manure be sampled at least once per
year and analyzed for its nutrient content including nitrogen, phosphorus and potassium. EPA
believes that annual sampling of manure is the minimum frequency to provide the necessary
nutrient content on which to establish the appropriate rate. If the CAFO applies its manure more
frequently than once per year, it may choose to sample the manure more frequently. Sampling
216
-------
the manure as close to the time of application as practical provides the CAFO with a better
measure of the nitrogen content of the manure. Generally, nitrogen content decreases through
volatilization during manure storage when the manure is exposed to air.
The manure application rate established in the PNP would have to be based on the
following factors: (1) the nitrogen requirement of the crop to be grown based on the agricultural
extension or land grant university recommendation for the operation's soil type and crop; and (2)
realistic crop yields that reflect the yields obtained for the given field in prior years or, if not
available, from yields obtained for same crop at nearby farms or county records. Once the
nitrogen requirement for the crop is established the manure application rate would be determined
by subtracting any other sources of nitrogen available to the crop from the crop's nitrogen
requirement. These other sources of nitrogen can include residual nitrogen in the soil from
previous applications of organic nitrogen, nitrogen credits from previous crops of legumes, and
crop residues, or applications of commercial fertilizer, irrigation water and biosolids.
Application rates would be based on the nitrogen content in the manure and should also account
for application methods, such as incorporation, and other site specific practices.
The CAFO would have to maintain the PNP on-site, along with records of the application
of manure and wastewater including: (1) the amount of manure applied to each field; (2) the
nutrient content of manure; (3) the amount and type of commercial fertilizer and other nutrient
sources applied; and (4) crop yields obtained. Records must also indicate when manure was
applied, application method and weather conditions at the time of application.
While Option 1 would require manure to be sampled annually, it would not require soil
sampling and analysis for the nitrogen content in the soil. Nitrogen is present in the soil in
different forms and depending on the form the nitrogen will have different potential to move
from the field. Nitrogen is present in an organic form from to the decay of proteins and urea, or
from other organic compounds that result from decaying plant material or organic fertilizers such
as manure or biosolids. These organic compounds are broken down by soil bacteria to inorganic
forms of nitrogen such as nitrate and ammonia. Inorganic nitrogen or urea may be applied to
crop or pasture land as commercial fertilizer. Inorganic nitrogen is the form taken up by the
plant. It is also more soluble and readily volatile, and can leave the field through runoff or
emissions. Nitrogen can also be added to the soil primarily through cultivation of legumes which
will "fix" nitrogen in the soil. At all times nitrogen is cycling through the soil, water, and air,
and does not become adsorbed or built up in the soil in the way that phosphorus does, as
discussed under Option 2. Thus, EPA is not proposing to require soil sampling for nitrogen.
EPA would, however, require that, in developing the appropriate application rate for nitrogen,
any soil residue of nitrogen resulting from previous contributions by organic fertilizers, crop
residue or legume crops should be taken into account when determining the appropriate nitrogen
application rate. State Agricultural Departments and Land Grant Universities have developed
methods for accounting for residual nitrogen contributed from legume crops, crop residue and
organic fertilizers.
217
U.S. EPA Headquarters Library
Mail code 3201
1200 Pennsylvania Avenue NW
Washington DC 20460
-------
Option 1 would also prohibit application of manure and wastewater within 100 feet of I
surface waters, tile drain inlets, sinkholes and agricultural drainage wells. EPA strongly \
encourages CAFOs to construct vegetated buffers, however, Option 1 only prohibits applying ;
manure within 100 feet of surface water and would not require CAFOs to take crop land out of [
production to construct vegetated buffers. CAFOs may continue to use land within 100 feet of
surface water to grow crops. Under Option 1, EPA included costs for facilities to construct
minimal storage, typically three to six months, to comply with the manure application rates
developed in the PNP. EPA included these costs because data indicate pathogen concentrations
in surface waters adjacent to land receiving manure are often not significantly different from
pathogen levels in surface waters near lands not receiving manure when the manure has been
stored and aged prior to land application. EPA believes the 100 foot setback, in conjunction with
proper manure application, will minimize the potential runoff of pathogens, hormones such as
estrogen, and metals and reduce the nutrient and sediment runoff.
EPA is aware of concerns that the presence of tile drain inlets, sinkholes and agricultural
drainage wells may be widespread in some parts of the country. This could effectively preclude
manure based fertilization of large areas of crop land. EPA requests comment on the presence of
such features in crop land and the extent to which a 100 foot setback around such features would
interfere with land application of manure. EPA also requests comment on how it might revise
the setback requirement to address such concerns and still adequately protect water quality.
EPA analysis shows application rates are the single most effective means of reducing
runoff. Nevertheless, no combination of best management practices can prevent pollutants from
land application from reaching surface waters in all instances; vegetated buffers provide an extra
level of protection. Buffers are not designed to reduce pollutants on their own; proper land
application and buffers work in tandem to reduce pollutants from reaching surface waters. Data
on the effectiveness of vegetated buffers indicate mat a 35 to 66 foot vegetated buffer (depending
primarily on slope) achieves the most cost-effective removal of sediment and pollutants from
surface runoff. However, EPA chose not to propose requiring operations to take land out of
production and construct a-vegetated buffer because a buffer may not be the most cost-effective
application to control erosion in all cases. There are a variety of field practices that should be
considered for the control of erosion. EPA encourages CAFOs to obtain and implement a
conservation management plan to minimize soil losses, and also to reduce losses of pollutant
bound to the soils.,
Today's proposal requires a greater setback distance than the optimum vegetated buffer
distance. Since EPA is not requiring the construction of a vegetated buffer, the additional
setback distance will compensate for the loss of pollutant reductions in the surface runoff leaving
the field that would have been achieved with a vegetated buffer without requiring CAFOs to
remove this land from production.
EPA solicits comment on additional options to control erosion which would, in turn,
reduce the amount of pollutants reaching waters of the U.S. The options for controlling erosion
218
-------
include: (1) implementing one of the three NRCS Conservation Practice Standards for Residue
Management: No-Till and Strip Till (329A), Mulch Till (329B), or Ridge Till (329C) in the state
Field Office Technical Guide; (2) requiring a minimum 30% residue cover; (3) achieving soil
loss tolerance or "T"; or (4) implementing of the Erosion and Sediment Control Management
Measure as found in EPA's draft National Management Measures to Control Nonpoint Source
Pollution from Agriculture. This measure is substantially the same as EPA's 1993 Guidance
Specifying Management Measure for Sources of Nonpoint Pollution in Coastal Waters which
says to:
"...Apply the erosion control component of a Resource Management System (RMS) as defined in
the 1993 Field Office Technical Guide of the U.S. Department of Agriculture National
Resources Conservation Service to minimize delivery of sediment from agricultural lands to
surface waters, or design and install a combination of management and physical practices to
settle the settleable solids and associated pollutants in runoff delivered from the contributing area
for storms of up to and including a 10-year, 24- hour frequency."
Farmers entering stream buffers in the Conservation Reserve Program's (CRP)
Continuous Sign- Up receive bonus payments, as an added incentive to enroll, include a 20
percent rental bonus, a $100 per acre payment up-front (at the time they sign up), and another
bonus at the time they plant a cover. These bonus payments more than cover costs associated
with enrolling stream buffers, (i.e., rents forgone for the duration of their 10 or 15 year CRP
contracts, and costs such as seed, fuel, machinery and labor for planting a cover crop). The
bonuses provide a considerable incentive to enroll stream buffers because the fanners receive
payments from USDA well in excess of what they could earn by renting the land for crop
production. Farmers can enter buffers into the CRP program at any time.
EPA may also consider providing CAFOs the option of prohibiting manure application
within 100 feet or constructing a 35 foot vegetated buffer. EPA solicits comment on any and all
of these options.
Option 2. Option 2 retains all the same requirements for the feedlot and manure storage
areas described under Option 1 with one exception: Option 2 would impose a BMP that requires
manure application rates be phosphorus based where necessary, depending on the specific soil
conditions at the CAFO.
Manure is phosphorus rich, so application of manure based on a nitrogen rate may result
in application of phosphorus in excess of crop uptake requirements. Traditionally, this has not
been a cause for concern, because the excess phosphorus does not usually cause harm to the plant
and can be adsorbed by the soil where it was thought to be strongly bound and thus
environmentally benign. However, the capacity for soil to adsorb phosphorus will vary
according to soil type, and recent observations have shown that soils can and do become
saturated with phosphorus. When saturation occurs, continued application of phosphorus in
excess of what can be used by the crop and adsorbed by the soil results in the phosphorus leaving
219
-------
the field with storm water via leaching or runoff. Phosphorus bound to soil may also be lost
from the field through erosion.
Repeated manure application at a nitrogen rate has now resulted in high to excessive soil
phosphorus concentrations in some geographic locations across the country. Option 2 would
require manure application be based on the crop removal rate for phosphorus in locations where
soil concentrations or soil concentrations in combination with other factors indicate that there is
an increased likelihood that phosphorus will leave the field and contribute pollutants to nearby
surface water and groundwater. Further, when soil concentrations alone or in combination with
other factors exceed a given threshold for phosphorus, the proposed rule would prohibit manure
application. EPA included this restriction because the addition of more phosphorus under these
conditions is unnecessary for ensuring optimum crop production.
Nutrient management under Option 2 includes all the steps described under Option 1,
plus the requirement that all CAFOs collect and analyze soil samples at least once every 3 years
from all fields that receive manure. EPA would require soil sampling at 3 year intervals because
this reflects a minimal but common interval used in crop rotations. This frequency is also
commonly adopted in nutrient management plans prepared voluntarily or under state programs.
When soil conditions allow for manure application on a nitrogen basis, then the PNP and record
keeping requirements are identical to Option 1. Permit nutrient plans would have to be reviewed
and updated each year to reflect any changes in crops, animal production, or soil measurements
and would be rewritten and certified at a minimum of once every five years or concurrent with
each permit renewal. EPA solicits comment on conditions, such as no changes to the crops, or
herd or flock size, under which rewriting the plan would not be necessary and would not require
the involvement of a certified planner.
The CAFO's PNP would have to reflect conditions that require manure application on a
phosphorus crop removal rate. The manure application rate based on phosphorus requirements
takes into account the amount of phosphorus that will be removed from the field when the crop is
harvested. This defines the amount of phosphorus and the amount of manure that may be applied
to the field. The PNP must also account for the nitrogen requirements of the crop. Application
of manure on a phosphorus basis will require the addition of commercial fertilizer to meet the
crop requirements for nitrogen. Under Option 2, EPA believes there is an economic incentive to
maximize proper handling of manure by conserving nitrogen and minimizing the expense
associated with commercial fertilizer. EPA expects manure handling and management practices
will change in an effort to conserve the nitrogen content of the manure, and encourages such
practices since they are likely to have the additional benefit of reducing the nitrogen losses to the
atmosphere.
EPA believes management practices that promote nitrogen losses during storage will
result in higher applications of phosphorus because in order to meet the crops requirements for
nitrogen a larger amount of manure must be applied. Nitrogen volatilization exacerbates the
imbalance in the ratio of nitrogen to phosphorus in the manure as compared to the crop's
220
-------
requirement. Thus application of manure to meet the nitrogen requirements of the crop will
result in over application of phosphorus and the ability of the crops and soil to assimilate
phosphorus will reach a point at which the facility must revise the PNP to reflect phosphorus
based application rates. EPA solicits comment on additional incentives that can be used to
discourage those manure storage, treatment, and handling practices that result in nitrogen
volatilization.
Under both Option 1 (N) and Option 2 (P), the application of nitrogen from all sources
may not exceed the crop nutrient requirements. Since a limited amount of nutrients can be
applied to the field in a given year, EPA expects facilities will select the site-specific practices
necessary to optimize use of those nutrients. Facilities that apply manure at inappropriate times
run the risk of losing the value of nutrients and will not be permitted to reapply nutrients to
compensate for this loss. Consequently crop yields may suffer, and in subsequent years, the
allowable application rates will be lower. For these reasons, facilities with no storage are
assumed to need a minimal storage capacity to allow improved use of nutrients.
Option 2 provides three methods for determining the manure application rate for a CAFO.
These three methods are:
* Phosphorus Index
• Soil Phosphorus Threshold Level
• Soil Test Phosphorus Level
These three methods are adapted from NRCS' nutrient management standard (Standard 590),
which is being used by States' Departments of Agriculture to develop State nutrient standards
that incorporate one or a combination of these three methods. EPA is proposing to require that
each authorized state Permit Authority adopt one of these three methods in consultation with the
State Conservationist. CAFOs would then be required to develop their PNP based on the State's
method for establishing the application rate. In those states where EPA is the permitting
authority, the EPA Director would adopt one of these three methods in consultation with that
State's Conservationist.
Phosphorus Index - This index assesses the risk that phosphorus will be transported off
the field to surface water and establishes a relative value of low, medium, high or very high, as
specified in §412.33. Alternatively, it may establish a numeric ranking. At the present time there
are several versions of the P-Index under development. Many states are working on a P-Index
for their state in response to the NRCS 590 Standard, and NRCS itself developed a P-Index
template in 1994 and is in the process of updating that template at the present time. There are
efforts underway in the scientific community to standardize a phosphorus index and assign a
numeric ranking.
221
-------
At a minimum the phosphorus index must consider the following factors:
• soil erosion
• irrigation erosion
• runoff class
• soil P test
• P fertilizer application rate
• P fertilizer application method
• organic P source application rate
• organic P source application method
Other factors could also be included, such as:
• subsurface drainage
• leaching potential
• distance from edge of field to surface water
• pri ori ty of recei ving water
Each of these factors is listed in a matrix with a score assigned to each factor. For
example, the distance from edge of field to surface water assigns a score to different ranges of
distance. The greater the measured distance, the lower the score. Other factors may not be as
straightforward. For example, the surface runoff class relates field slope and soil permeability in
a matrix, and determines a score for this element based on the combination of these factors. The
same kind of approach could also be used for the subsurface drainage class, relating soil drainage
class with the depth to the seasonal high water table. The values for all variables that go into
determining a P-Index can either be directly measured, such as distance to surface water, or can
be determined by data available from the state, such as soil drainage class that is based on soil
types found in the state and assigned to all soil types. Finally, each factor is assigned a weight
depending on its relative importance in the transport of phosphorus.
222
-------
When a P-Index is used to determine the potential for phosphorus transport in a field and
the overall score is high, the operations would apply manure on a phosphorus basis (e.g., apply to
meet the crop removal rate for phosphorus). When a P-Index determines that the transport risk is
very high, application of manure would be prohibited. If the P-Index results in a rating of low or
medium, then manure may be applied to meet the nitrogen requirements of the crop as described
under Option 1. However, the CAFO must continue to collect soil samples at least every three
years. If the phosphorus concentration in the soil is sharply increasing, the CAFO may want to
consider managing its manure differently. This may include changing the feed formulations to
reduce the amount of phosphorus being fed to the animals, precision feeding to account for
nutrient needs of different breeds and ages of animals. It may also include changing manure
storage practices to reduce nitrogen losses. There is a great deal of research on feed
management, including potential effects on milk production when phosphorus in rations fed to
dairy cows is reduced, and the cost savings of split sex and multistage diets and the addition of or
adding the enzyme phytase to make the phosphorus more digestible by poultry and swine.
Phytase additions in the feed of monogastrics have proven effective at increasing the ability of
the animal to assimilate phosphorus and can reduce the amount of phosphorus excreted. Phytase
use is also reported to increase bioavailability of proteins and essential minerals, reducing the
need for costly supplemental, phosphorus, and reducing necessary calcium supplements for
layers. The CAFO may also consider limiting the application of manure. For example, the
CAFO may apply manure to one field to meet the nitrogen requirements for that crop but not
return to that field until the crops have assimilated the phosphorus that was applied from the
manure application.
Phosphorus Threshold - This threshold which would be developed for different soil types
is a measure of phosphorus in the soil that reflects the level of phosphorus at which phosphorus
movement in the field is acceptable. Scientists are currently using a soluble phosphorus
concentration of 1 part per million (ppm) as a measure of acceptable phosphorus movement.
When the soil concentration of phosphorus reaches this threshold the concentration of
phosphorus in the runoff would be expected to be 1 ppm. The 1 ppm value has been used as an
indicator of acceptable phosphorus concentration because it is a concentration that has been
applied to POTWs in their NPDES permits. An alternative phosphorus discharge value could be
the water quality concentration for phosphorus in a given receiving stream.
States which adopt this method in their state nutrient management standard would need to
establish a phosphorus threshold for all types of soils found in their state.
Use of the phosphorus threshold in developing an application rate allows for soils with a
phosphorus concentration less than three quarters the phosphorus threshold to apply manure on a
nitrogen basis. When soils have a phosphorus concentration between 3/4 and twice the
phosphorus threshold then manure must be applied to meet the crop removal requirements for
phosphorus. For soils which have phosphorus concentrations greater than twice the phosphorus
threshold, no manure may be applied.
223
-------
Soil Test Phosphorus - The soil test phosphorus is an agronomic soil test that measures
for phosphorus. This method is intended to identify the point at which the phosphorus
concentration in the soil is high enough to ensure optimum crop production. Once that
concentration range (often reported as a "high" value from soil testing laboratories) is reached,
phosphorus is applied at the crop removal rate. If the soil test phosphorus level reaches a very
high concentration, then no manure may be applied. Most soils need to be nearly saturated with
phosphorus to achieve optimum crop yields. The soil phosphorus concentration should take into
account the crop response and phosphorus application should be restricted when crop yield
begins to level off.
The soil test phosphorus method establishes requirements based on low, medium, high
and very high soil condition, and applies the same restrictions to these measures as are used in
the P-Index. Stales that adopt this method must establish the soil concentration ranges for each
of these risk factors for each soil type and crop in their state.
EPA anticipates that in most states, the permit authority will incorporate the State's
nutrient standard (590 Standard) into CAFO permits. For example, if the permit authority, in
consultation with the State Conservationist, adopts a Phosphorus Index, then CAFO permits
would include the entire P-Index as the permit condition dictating how the application rate must
be developed. If a permit authority selects the Phosphorus Threshold, then the CAFO permits
must contain soil concentration limitations that reflect phosphorus-based application, as well as
the level at which manure application is prohibited.
Each State Conservationist, in consultation with land grant university scientists and the
state, must develop a Phosphorus Index for that state by May 2001. EPA may consider
eliminating the use of the soil phosphorus threshold level and the soil test phosphorus level as
methods for determining the manure application rate for a CAFO and requiring the use of the
state Phosphorus Index. Scientists studying phosphorus losses from agricultural lands are
supporting the development and use of the Phosphorus Index since it combines the factors
critical in determining risk of phosphorus rate and transport to surface waters, including the soil
phosphorus threshojd level, when developed. EPA is soliciting comment on this option.
Finally, under Option 2 EPA is proposing to require CAFOs that transfer manure off-site
to provide the recipient of the manure with information as to the nutrient content of the manure
and provide the recipient with information on the correct use of the manure. See Section Vn.E.4,
for a complete discussion of the requirements for off-site transfer of manure.
As discussed in Section VI, compliance costs for manure transfer assessed to the CAFO
include hauling costs and record keeping. If the recipient is land applying the manure, the
recipient is most likely a crop farmer, and the recipient is assumed to already have a nutrient
management plan that considers typical yields and crop requirements. The recipient is also
assumed to apply manure and wastes on a nitrogen basis, so the application costs are offset by the
costs for commercial fertilizer purchase and application. EPA assumes the recipient may need
224
-------
to sample soils for phosphorus, and costs for sampling identically to the CAFO, i.e. every three
years. EPA has not accounted for costs that would result from limiting the amount or way
recipients are currently using manure. EPA solicits comment on the impact to recipients who
currently use manure and may have to change their practices as a result of this requirement. In
cases where manure is received for alternative uses, the recipient is deemed to already maintain
the appropriate records.
EPA solicits comments on whether there should be required training for persons that will
apply manure. There are some states which have these requirements. Proper application is
critical to controlling pollutant discharges from crop fields. Some states have establish
mandatory training for persons that apply manure. EPA will consult with USDA on the
possibility of establishing a national training program for manure applicators.
Rotational Grazing. At the request of the environmental community, EPA has
investigated rotational grazing as an alternative to confinement-based livestock production. Any
pasture or grazing operation is by definition not a form of confinement, therefore use of these
practices are outside of the scope of these regulations.
Intensive rotational grazing is known by many terms, including intensive grazing
management, short duration grazing, savory grazing, controlled grazing management, and voisin
grazing management. This practice involves rotating livestock and poultry among several
pasture subunits or paddocks, often on a daily basis, to obtain maximum efficiency of the pasture
land.
Due to the labor, fencing, water, and land requirements for intensive rotational grazing,
typically only small dairy operations with less than 100 head use this practice. Few beef feedlots
practice intensive rotational grazing. Poultry on pasture is usually housed in a portable building
or pen holding up to 100 birds that is moved daily; rarely are more than 1,000 birds in total raised
in this manner. Swine have also been successfully raised on pasture, most frequently as a
seasonal farrowing operation in combination with seasonal sheep or cow grazing. Climate and
associated growing seasons make it very difficult for operations to use an intensive rotational
grazing system throughout the entire year. Most dairy operations and beef feedlots that use
rotational grazing typically operate between 3 and 9 months of the year, with 12 months most
likely only in the southern states. Poultry on pasture are produced for about 6 months, and pigs
are typically farrowed once per year.
Grazing systems are not directly comparable to confined feeding operations, as one
system can not readily switch to the other. Intensive rotational grazing systems are reported to
have advantages over confined feeding operations: reduced housing and feed costs, improved
animal health, less manure handling, and more economic flexibility. Intensive rotational grazing
also encourages grass growth and development of healthy sod, which in turn reduces erosion. In a
good rotational system, manure is more evenly distributed and will break up and disappear from
the surface faster.
225
-------
Despite these advantages, studies do not indicate significant reductions of pathogens or
nutrients in runoff to nearby streams as compared to manured fields. Rotational grazing systems
may still require manure maintenance near watering areas and paths to and from the paddock
areas. There are also limits to the implementation of intensive rotational grazing systems, which
are highly dependent upon: available acreage, herd size, land resources, labor, water availability,
proximity of pasture area to milking center for dairy operations, and feed storage capabilities.
Grazing systems usually produce lower animal weight gain and milk production levels, provide
limited manure handling options, and do not provide the level of biosecurity that confinement
farms can obtain.
Proposed Basis for BPT Limitations. EPA is not proposing to establish BPT
requirements for the beef, dairy, swine, veal and poultry subcategones on the basis of Option 1,
because it does not represent the best practicable control technology. In areas that have high to
very high phosphorus build up in the soils, Option 1 would not require that manure application
be restricted or eliminated. Thus, the potential for phosphorus to be discharged from land owned
or controlled by the CAFOs would not be controlled by Option 1. Consequently Option 1 would
not adequately control discharges of phosphorus from these areas. Option 2 would reduce the
discharge of phosphorus in field runoff by restricting the amount of phosphorus that may be
applied to the amount that is appropriate for agricultural purposes or prohibiting the application
of manure when phosphorus concentrations in the soil are very high and additional phosphorus is
not needed to meet crop requirements.
EPA is proposing to establish BPT limitations for the beef, dairy, swine, veal and poultry
subcategories on the basis of Option 2 with the exception that it is co-proposing options with and
without the certification regulations for off-site land application of manure. EPA's decision to
base BPT limitations on Option 2 treatment reflects consideration of the total cost of application
of technology in relation to the effluent reduction benefits to be achieved from such application.
Option 2 is expected to cost $549 million under the two-tier structure and achieve 107 million
pounds of pollutant reductions for a total cost to pound ratio of $0.57. The three-tier structure is
estimated to cost $551 for a total cost to pound ratio of $0.51.
The Option 2 technology is one that is readily applicable to all CAFOs. The production
area requirements represent the level of control achieved by the majority of CAFOs in the beef,
dairy, swine, poultry and veal subcategories. USDA and the American Society of Agricultural
Engineers cite the 25-year, 24-hour storm as the standard to which storage structures should
comply. This has been the standard for many years, and most existing lagoons and other open
liquid containment structures are built to this standard. As described above, the land application
requirements associated with Option 2 are believed to represent proper agricultural practice and
to ensure that CAFO manure is applied to meet the requirements of the crops grown and not
exceed the ability of the soil and crop to absorb nutrients.
EPA believes any of the three methods for determining when manure should be applied
on a phosphorus basis would represent BPT. Each method has distinct advantages which,
226
-------
depending on the circumstances, could make one method preferred over another. There has been
considerable work done in this area within the past few years and this work is continuing. EPA
believes that this proposed BPT approach provides adequate flexibility to allow states to develop
an approach that works best for the soils and crops being grown within their state. Nonetheless,
EPA will continue to work with soil scientists and may consider standardizing the factors
included in the phosphorus index to develop a standard rating scale, for the purpose of CAFO
requirements. EPA also solicits comment on whether there should be some EPA oversight or
approval of the phosphorus method developed by the states. Specifically EPA solicits comment
whether of EPA should establish standards that must be included in a phosphorus index. These
standards may include specifying additional criteria which should be considered in the index,
such as distance to surface water. EPA also seeks comment on whether it should establish
minimum standards on how these criteria must be factored into a Phosphorus Index, such as
specifying the weight to be assigned to the various criteria included in the Index and assigning
the values for specific ranges for each criteria. EPA may consider establishing a minimum
standard for the phosphorus threshold method for example requiring that at a minimum the
phosphorus threshold be based on the soil phosphorus concentration that would result in a
soluble phosphorus concentration in the runoff of 1 ppm. EPA may also consider establishing
specific sampling protocols for collecting manure and soil samples and analyzing for nutrients.
CAFOs must also develop and implement a PNP that establishes the appropriate manure
application rate. EPA believes the land application rates established in accordance with one of
the three methods described in today's proposed regulation, along with the prohibition of manure
application within 100 feet of surface water, will ensure manure and wastewater are applied in a
manner consistent with proper agricultural use. EPA has included a discussion of how to
develop a PNP in section Vm.C.6.
EPA believes that state sampling and analytical protocols are effective; however, soil
phosphorus levels can vary depending on how the soil samples are collected. For example, a
CAFO that surface-applies manure will deposit phosphorus in the surface layer of the soil and
should collect soil samples from the top layer of soil. If this CAFO collects soil samples to a
depth of several inches the analysis may understate the phosphorus concentrations in the soil.
EPA solicits comments on the need to establish sampling protocols for soil sampling.
4. Best Control Technology for Conventional Pollutants (BCT)
In evaluating possible BCT standards, EPA first considered whether there are any
candidate technologies (i.e., technology options); that are technologically feasible and achieve
greater conventional pollutant reductions than the proposed BPT technologies. (Conventional
pollutants are defined in the Clean Water Act as including: Total Suspended Solids (TSS),
Biochemical Oxygen Demand (BOD), pH, oil and grease and fecal coliform.) EPA considered
the same BAT technology options described below and their effectiveness at reducing
conventional pollutants. EPA's analysis of pollutant reductions has focused primarily on the
control of nutrients, nitrogen and phosphorus. However, the Agency has also analyzed what the
227
-------
technology options can achieve with respect to sediments (or TSS), metals, and pathogens.
Although livestock waste also contains BOD, EPA did not analyze the loadings or loadings
reductions associated with the technology options for BOD. Thus, the only conventional
pollutant considered in the BCT analysis is TSS. EPA identified no technology option that
achieves greater TSS removals than the proposed BPT technologies (see the Technical
Development Document). EPA does not believe that these technology options would
substantially reduce BOD loads. There are therefore no candidate technologies for more
stringent BCT limits. If EPA had identified technologies that achieve greater TSS reductions
than the proposed BPT, EPA would have performed the two part BCT cost test. (See 51 FR
24974 for a description of the methodology EPA employs when setting BCT standards.) EPA
solicits comment on the assumptions it used in considering BCT.
EPA is proposing to establish BCT limits for conventional pollutants equivalent to the
proposed BPT limits.
5. Best Available Technology Economically Achievable (BAT)
EPA is considering six technology options to control discharges from CAFOs in the beef,
veal and poultry subcategories, and seven technology options for the dairy and hog subcategories.
All of the technology options include restrictions on land application of manure, best
management practices (BMPs), inspections and record keeping for the animal confinement areas,
and wastewater storage or treatment structures. The following table summarizes the
requirements for each of the seven technology options. Note that a given technology option may'
include a combination of technologies
lable 8-1. Requirements Considered in the Technology U
Zero Discharge w/
overflow when a 25-24
Design Standard is met
Depth markers for lagoons
Annual Manure Testing
N-based PNP
100' LA setback
P-based PNP (where
necessary)
Soil Test - every 3yrs.
Zero discharge without any
allowance for overflow
Option 1
X
X
X
X
X
Option 2
X
X
X
X
X
X
Option 3
X
X
X
X
X
X
Option 4
X
X
X
X
X
X
Options
Cattle &
Dairy
Cattle &
Dairy
X
X
X
X
Swine &
Poultry
rtions
Option 6
X
X
X
X
X
Option 7
X
X
X
X
X
228
-------
Hydrologic Link
Assessment & Zero
Discharge to Groundwater
beneath Production Area
Ambient Surface Water
Sampling (N,P,TSS)
Anaerobic' Digesti on
w/power generation
Frozen/snow
covered/saturated
application prohibitions
Option 1
Option 2
Option 3
X
Option 4
X
X
Options
Swine
Option 6
Swine &
Dairy
Option 7
X
X = A1J Subcategories
Option 1. This option is equivalent to Option 1 described under BPT Section Vin.3.
Option 1 would require zero discharge from the production area and that liquid storage be
designed, constructed and maintained to handle all process wastewater and storm water runoff
from the 25-year, 24-hour storm event. In addition, Option 1 requires management practices to
ensure that the production area (which includes manure and wastewater storage) is being
adequately maintained.
Option 1 also would establish a requirement to develop a PNP which establishes the
proper land application rate for manure and wastewater to meet the nitrogen requirements for the
crops being grown by the CAPO and require a 100 foot setback from surface water, sinkholes,
tile drain inlets and agricultural drainage wells.
Option 2. This option is equivalent to Option 2 described under BPT (section VII.3).
Option 2 includes all of the requirements established under Option 1. However, Option 2 would
further restrict the amount of manure that can be applied to crop land owned or controlled by the
CAFO. The GAFO would be required to apply manure and wastewater at the appropriate rate
taking into account the nutrient requirements of the crop and soil conditions. Specifically,
Option 2 would require that manure be applied at crop removal rate for phosphorus if soil
conditions warrant and, if soils have a very high level phosphorus build-up, no manure or
wastewater could be applied to the crop land owned or controlled by the CAFO.
Option 3. Option 3 includes all the requirements for Option 2 and would require that all
operations perform an assessment to determine whether the ground water beneath the feedlot and
manure storage area has a direct hydrological connection to surface water. As described in
Section VII, EPA has authority to control discharges to surface water through ground water that
has a direct hydrological connection to surface water. A hydrological connection refers to the
interflow and exchange between surface impoundments and surface water through an
229
-------
underground corridor or ground water. EPA is relying on the permitting authority to establish the
region-specific determination of what constitutes a direct hydrological link. Option 3 would
require all CAFOs to determine whether they have a direct hydrological connection between the
ground water beneath the production area and surface waters. If a link is established, the facility
would have to monitor ground water up gradient and down gradient of the production area to
ensure that they are achieving zero discharge to ground water. EPA has assumed that CAFOs
would comply with the zero discharge requirement by installing liners of synthetic material
beneath lagoons and ponds, and impervious pads below storage of dry manure stockpiles. EPA's
costs for liners reflect both a synthetic liner and compacted clay to protect the liner and prolong
its useful life.
CAFOs with a direct hydrologic link would be required to sample the groundwater from
the monitoring wells (located up gradient and down gradient of the production area) at a
minimum frequency of twice per year. These samples are necessary to ensure that pollutants are
not being discharged through groundwater to surface water from the production area. The
samples shall be monitored for nitrate, ammonia, total coliform, fecal coliform, Total Dissolved
Solids (IDS) and total chloride. Differences in concentration of these pollutants between the
monitoring well(s) located up gradient and down gradient of the production area are assumed to
represent a discharge of pollutants and must be prevented. As noted below, coliforms are not
necessarily good indicators of livestock discharges. Also, it is difficult to determine
"concentrations" of coliforms as they are not necessarily evenly distributed in the way chemical
contaminants generally are. EPA requests comment on technical concerns associated with
including total and fecal coliforms in the groundwater monitoring and protection requirements
and on ways to address such concerns.
Option 4. Option 4 includes all the requirements for Option 3 and would require
sampling of surface waters adjacent to feedlots and/or land under control of the feedlot to which
manure is applied. This option would require CAFOs to sample surface water both upstream and
downstream from the feedlot and land application areas following a one half inch rain fall (not to
exceed 12 sample events per year). The samples would be analyzed for concentrations of
nitrogen, phosphorus and total suspended solids (TSS). EPA selected these pollutants because it
believes these pollutants provide an adequate indication of whether a discharge is occurring from
the operation. All sampling results would be reported to the permit authority. Any difference in
concentration between the upstream and downstream samples would be noted. This monitoring
requirement could provide some indication of discharges from the land application or feedlot
areas.
EPA also considered requiring that pathogens and BOD5 be analyzed in samples
collected. EPA decided that this would not be practical, because sampling under Option 4 is
linked to storm events which limits the ability to plan in advance for analysis of the samples and
making arrangements for shipping samples to laboratories. Fecal coliform and BOD samples all
have very short holding times before they need to be analyzed. Most CAFOs are located in rural
areas with limited access to overnight shipping services and are probably not near laboratories
J
230
-------
that can analyze for these pollutants. Further, fecal coliform and similar analytes that are
typically used as indicators in municipal wastewater are not necessarily good indicators of
livestock discharges. If CAFOs were required to monitor for pathogens which could indicate
discharges of manure or CAFO wastewater, it would be better to require monitoring for fecal
enterococci, or even specific pathogens such as salmonella, Giardia, and Cryptosporidium.
However, the cost for analyzing these parameters is very high and the holding times for these
parameters are also very short.
Furthermore, EPA determined pathogen analyses are also inappropriate because the
pathogens in manure are found in areas without animal agriculture. For example Enterobacter,
Klebsiella, Bacillus cereus, Clostridium, and Listeria are all naturally occurring soil and plant
microorganisms and are found in soils that have never received manure. Pathogens may also be
deposited onto land from wildlife. Thus, EPA concluded that requiring analysis for these
pollutants was impractical at best and potentially very expensive.
Option 5. Option "5 includes the requirements established by Option 2 and would establish
a zero discharge requirement from the production area that does not allow for an overflow under
any circumstances. By keeping precipitation from contacting with the animals, raw materials,
waste handling and storage areas, CAFOs could operate the confinement areas and meet zero
discharge regardless of rainfall events. Option 5 includes the same land application requirements
as Option 2, which would restrict the rate of manure and wastewater application to a crop
removal rate for phosphorus where necessary depending on the specific soil conditions at the
CAFO. Additionally, as in Option 2, application of manure and wastewater would be prohibited
within 100 feet of surface water.
EPA considered Option 5 for the poultry, veal and hog subcategories, where it is common
to keep the animals in total confinement, feed is generally maintained in enclosed hoppers and
the manure and wastewater storage can be handled so as to prevent it from contacting storm
water. EPA considered a number of ways a facility might meet the requirements of no discharge
and no overflow. In estimating the costs associated with Option 5, EPA compared the total costs
and selected the least expensive technology for a given farm size, geographic region, and manure
management system. Costs also depend on whether the facility's PNP indicates land application
must be based on nitrogen or phosphorus, and how many acres the facility controls. The
technologies described below were used singularly or in combination to meet the requirements of
Option 5.
Many facilities can achieve Option 5 by covering open manure and storage areas, and by
constructing or modifying berms and diversions to control the flow of precipitation. EPA costed
broiler and turkey operations for storage sheds sufficient to contain six months of storage. Some
poultry facilities, particularly turkey facilities, compost used litter in the storage sheds, allowing
recycle and reuse of the litter. EPA costed swine, veal, and poultry facilities which use lagoons
or liquid impoundments for impoundment covers.
231
-------
EPA believes that operations which have excess manure nutrients and use flush systems
to move manure out of the confinement buildings will have an incentive to construct a second
lagoon cell. A second storage or treatment cell should accomplish more decomposition of the
waste and will allow flush water to be recycled out of the second cell or lagoon, thus reducing the
addition of fresh water to the system. Reducing the total volume of stored waste reduces the risk
of a catastrophic failure of the storage structure. In the absence of large volumes of water,
facilities with an excess of manure nutrients will be able to transfer the excess manure off-site
more economically due to a lower volume of waste needing to be hauled. Water reduction also
results in a more concentrated product which would have a higher value as a fertilizer.
Covered systems substantially reduce air emissions, and help maintain the nutrient value
of the manure. Covered systems also may benefit facilities by reducing odors emanating from
open storage. This option also creates a strong incentive for facilities to utilize covered lagoon
digesters or multistage covered systems for treatment. The use of covers will allow smaller and
more stable liquid impoundments to be constructed. Finally, the use of covered impoundments
encourages treatment and minimal holding times, resulting in pathogen die-off and reduction of
BOD and volatile solids.
Other technologies can be effectively used at some facilities, such as conversion of flush
systems to scrape systems, or by retrofit of slatted floor housing to V-shaped under house pits
that facilitate solid liquid separation. Solids can be stored or composted in covered sheds, while
the urine can be stored in small liquid impoundments.
In the event the facility has insufficient land to handle all nutrients generated, EPA
evaluated additional nutrient management strategies. First, the manure could pass through solid
separation, resulting in a smaller volume of more concentrated nutrients that is more effectively
transported offsite. Second, land application could be based on the uppermost portion of a
covered lagoon containing a more dilute concentration of nutrients. Data indicates much of the
phosphorus accumulates in the bottom sludge, which is periodically removed and could be
transported offsite for proper land application. Though many facilities report sludge removal of a
properly operating lagoon may occur as infrequently as every 20 years, EPA assumed facilities
would pump out the phosphorus and metals enriched sludge every three years. This is consistent
with the ANSI/ASAE standards for anaerobic treatment lagoons (EP403.3 JUL99) that indicates
periodic sludge removal and liquid drawdown is necessary to maintain the treatment volume of
the lagoon. Third, swine and poultry farms can implement a variety of feeding strategies, as
discussed under Option 2 (see Section VILC.3). Feed management including phytase, multistage
diets, split sex feeding, and precision feeding have been shown to reduce phosphorus content in
the manure by up to 50%. This results in less excess nutrients to be transported offsite, and
allows for more manure to be.Jand applied at the CAFO.
EPA is aware of a small number of swine facilities that are potentially CAFOs and use
either open lots or some type of building with outside access to confine the animals. EPA data
indicate these types of operations are generally smaller operations that would need to implement
232
-------
different technologies than those described above. CAFOs that provide outdoor access for the
animals need to capture contaminated storm water that falls on these open areas. Open hog lots
would find it difficult to comply with a requirement that does not allow for overflows in the
event of a large storm. EPA costed these facilities to replace the open lots with hoop houses to
confine the animals and storage sheds to contain the manure. Hoop structures are naturally
ventilated structures with short wooden or concrete sidewalls and a canvas, synthetic, or
reflective roof supported by tubes or trusses. The floor of the house is covered with straw or
similar bedding materials. The manure and bedding is periodically removed and stored. The
drier nature of the manure lends to treatment such as composting as well as demonstrating
reduced hauling costs as compared to liquid manure handling systems.
EPA considered a variation to Option 5 that would require CAFOs to use dry or drier
manure handling practices. This variation assumed conversion to a completely dry manure -
handling system for hogs and laying hens using liquid manure handling systems. In addition to
the advantages of reduced water use described above, a completely dry system is more likely to
minimize leaching to ground water and, where directly connected hydrologically to surface
water, will also reduce loads to surface waters. For the beef and dairy subcategories EPA
assumes that the liquid stream would be treated to remove the solids and the solids would be
composted. It is not practical to assume beef and dairy operations can avoid the generation of
liquid waste because operations in both subcategories tend to have animals in open areas exposed
to precipitation resulting in a contaminated storm water that must be captured. Also dairies
generate a liquid waste stream from the washing of the milking parlor.
Option 6. Option 6 includes the requirements of Option 2 and requires that large hog and
dairy operations (hog operations and dairies with 2,000 AUs) would install and implement
enclosed anaerobic digestion to treat their manure and use the captured methane gas for energy or
heat generation. With proper management, such a system can be used to generate additional on-
fanrt revenue. The enclosed system will reduce air emissions, especially odor and hydrogen
sulfide, and potentially reduces nitrogen losses from ammonia volatilization. The treated effluent
will also have less odor and should be more transportable relative to undigested manure, making
offsite transfer of manure more economical. Anaerobic digestion under thermophilic or heated
conditions would achieve additional pathogen reductions.
Option 7. Option 7 includes the requirements of Option 2 and would prohibit manure
application to frozen, snow covered or saturated ground. This prohibition requires that CAFOs
have adequate storage to hold manure for the period of time during which the ground is frozen or
saturated. The necessary period of storage ranges from 45 to 270 days depending on the region.
In practice, this may result in some facilities needing storage to hold manure and wastes for 12
months. EPA requests comment on whether there are specific conditions which warrant a
national standard that prohibits application when the ground is frozen, snow covered or saturated.
6. Proposed Basis for BAT
233
-------
BAT Requirements for the Beef and Dairy Subcategories. EPA is proposing to establish
BAT requirements for the beef and dairy subcategories based on the same technology option.
The beef subcategory includes stand-alone heifer operations and applies to all confined cattle
operations except for operations that confine mature dairy cattle or veal. Under the two-tier
structure, the BAT requirements would apply to any beef operation with 500 head of cattle or
more. Under the three-tier structure, the BAT requirements for beef would apply to any
operation with more than 1,000 head of cattle and any operation with 300 to 1,000 head which
meets the conditions identified in section VII.B. 2 and 3 of this preamble.
EPA proposes to establish BAT requirements for dairy operations which meet the
following definitions: under the two-tier structure, all dairy with 350 head of mature dairy cows
or more would be subject to today's proposed BAT requirements. Under the three-tier approach
any dairy with more than 700 head of mature dairy cows or 250 to 700 head of mature dairy cows
which meets the conditions identified in section VII of this preamble would be subject to today's
proposed BAT requirements.
EPA proposes to establish BAT requirements for the beef and dairy subcategories based
on Option 3. BAT would require all beef and dairy CAFOs to monitor the ground water beneath
the production area by drilling wells up gradient and down gradient to measure for a plume of
pollutants discharged to ground water at the production area. A beef or dairy CAFO can avoid
this ground water monitoring by demonstrating, to the permit writer's satisfaction, that it does
not have a direct hydrological connection between the ground water beneath the production area
and surface waters.
EPA proposes to require CAFOs in the beef and dairy subcategories to monitor their
ground water unless they determine that the production area is located above ground water which
has a direct hydrological connection to surface water. CAFOs would have to monitor for
ammonia, nitrate, fecal coliform, total coliform, total chlorides and IDS. EPA selected these
pollutants because they may be indicators of livestock waste and are pollutants of concern to
ground water sources. If the down gradient concentrations are higher than the up gradient
concentration this indicates a discharge which must be controlled. As discussed above, EPA
requests comment on the inclusion of total and fecal coliforms among the required analytes. For
operations that do not demonstrate that they do not have a direct hydrologic connection, EPA
based the BAT zero discharge requirement on the installation of liners in liquid storage structures
such as lagoons and storm water retention ponds and concrete pads for the storage of dry manure
stockpiles.
Beef and dairy CAFOs must also develop and implement a PHP that is based on
application of manure and wastewater to crop land either at a crop removal rate for phosphorus
where soil conditions require it, or on the nitrogen requirements of the crop. EPA believes the
land application rates established in accordance with one of the three methods described in
today's proposed regulation, along with the prohibition of manure application within 100 feet of
that surface water will ensure manure and wastewater are applied in a manner consistent with
234
-------
proper agricultural use. See EPA's document entitled "Managing Manure Nutrients at
Concentrated Animal Feeding Operations" for the detailed discussion of how a PNP is
developed.
EPA believes that technology option 3 is economically achievable and represents the best
available technology for the beef and dairy subcategories, and is therefore proposing this option
as BAT for these subcategories. The incremental annual cost of Option 3 relative to Option 2 for
these subcategories is $170 million pre-tax under the two-tier structure, and $1205 million pre-
tax under the three tier structure. EPA estimated annual ground water protection benefits from
the proposed requirements of $70-80 million. EPA estimates Option 3 for the beef and dairy
subcategories will reduce loadings to surface waters from hydrologically connected ground water
by 3 million pounds of nitrogen. To determine economic achievability, EPA analyzed how many
facilities would experience financial stress severe enough to make them vulnerable to closure
under each regulatory option. As explained in more detail in the Economic Analysis, the number
of facilities experiencing stress may indicate that an option might not be economically
achievable, subject to additional considerations. Under Option 2, no facilities in either the beef
or dairy sectors were found to experience stress, while under Option 3, the analysis projects 10
beef and 329 dairy CAFOs would experience stress under the two-tier structure, and 40 beef and
610 dairy CAFOs would experience stress under the three-tier structure. Of these, EPA has
determined that 40 beef operations are considered small businesses based on size standards
established by the Small Business Administration. This analysis assumes that 76% of affected
operations would be able to demonstrate that their ground water does not have a hydrological
connection to surface water and would therefore not be subject to the proposed requirements.
EPA projects the cost of making this demonstration to the average CAFO would be $3,000. EPA
is aware that concerns have been raised about these cost estimates, and about its estimates of how
many facilities would be able to avoid the groundwater monitoring and protection requirements
on this basis. EPA requests comment on this analysis and on its proposed determination that
Option 3 is economically achievable for the beef and dairy sectors.
EPA is not proposing to base BAT requirements for the beef and dairy subcategories on
Option 2 because it does not as comprehensively control discharges of pollutants through ground
water which has a direct hydrological connection with surface water. However, EPA is
requesting comment on Option 2 as a possible basis for BAT in the beef and dairy subcategories.
EPA notes that even under Option 2, permit writers would be required to consider whether a
facility is located in an area where its hydrogeology makes it likely that the ground water
underlying the facility is hydrologically connected to surface water and whether a discharge to
surface water from the facility through such hydrologically connected ground water may cause or
contribute to a violation of State water quality standards. In cases where such a determination
was made by the permit writer, he or she would impose appropriate conditions to prevent
discharge via a hydrologic connection would be included in the permit, The main difference
between Option 2 and Option 3 is thus that under Option 3, the burden of proof would be on the
facility to demonstrate that it does not discharge to ground water that is hydrologically connected
to surface water, while under Option 2, ground water protection and monitoring requirements
235
-------
would only be included in the permit if there were an affirmative determination by the permitting
authority that such requirements were necessary to prevent a discharge of pollutants to surface
waters via hydrologically connected ground water that may be sufficient to cause a violation of
State water quality standards. Under today's proposal, the Option 2 approach to preventing
discharges via hydrologically connected ground water would be used for the veal, swine and
poultry subcategories. EPA requests comment on applying this approach to the beef and dairy
subcategories as well.
EPA is not proposing to establish BAT requirements for the beef and dairy subcategories
on the basis of Option 4 due to the additional cost associated with ambient stream monitoring
and because the addition of in-stream monitoring does not by itself achieve any better controls on
the discharges from CAFOs as compared to the other options. In-stream monitoring could be an
indicator of discharges occurring from the CAFO; however, it is equally likely that in stream
monitoring will measure discharges that may be occurring from adjacent non-CAFO agricultural
sources. Through the use of commercial fertilizers these non-CAFO sources would likely be
contributing the same pollutants being analyzed under Option 4. EPA has not identified a better
indicator parameter which would isolate constituents from CAFO manure and wastewater from
other possible sources contributing pollutants to a stream. Pathogen analysis could be an
indicator if adjacent operations do not also have livestock or are not using manure or biosolids as
fertilizer sources. However, as described earlier, EPA has concerns about the ability of CAFOs
to collect and analyze samples for these pollutants because of the holding time constraints
associated with the analytical methods for these parameters. Accordingly, EPA does not believe
that specifying these additional in-stream monitoring BMP requirements would be appropriate;
and would not be useful in ensuring compliance with the Clean Water Act. Moreover, in-stream
monitoring would be a very costly requirement for CAFOs to comply with.
EPA is not proposing to establish BAT requirements for the beef and dairy subcategories
on the basis of Option 5. Option 5 would require zero discharge with no overflow from the
production area. Most beef feedlots are open lots which have large areas from which storm water
must be collected; thus, it is not possible to assume that the operation can design a storm water
impoundment that will never experience an overflow even under the most extreme storm. Stand
alone heifer operations (other than those that are pasture-based) are configured and operated in a
manner very similar to beef feedlots. Unlike the hog, veal and poultry subcategories, EPA is not
aware of any beef operations that keep all cattle confined under roof at all times.
Dairies also frequently keep animals in open areas for some period of time, whether it is
simply the pathway from the bam to the milk house or an open exercise lot. Storm water from
these open areas must be collected in addition to any storm water that contacts food or silage. As
is the case for beef feedlots, the runoff volume from the exposed areas is a function of the size of
the area where the cattle are maintained, and the amount of precipation. Since the CAFO
operator cannot control the amount of precipation, there always remains the possibility that an
extreme storm event can produce enough rainfall that the resulting runoff would exceed the
capacity of the lagoon.
236
-------
EPA did consider a new source option for new dairies that would enforce total
confinement of all cattle at the dairy. This new source option poses a barrier to entry for new
sources, therefore, EPA assumes that this option if applied to existing sources would be
economically unachievable. Furthermore, EPA did evaluate a variation of Option 5 that would
apply to existing beef and dairy operations and would require the use of technologies which
achieve a less wet manure. These technologies include solid-liquid separation and composting
the solids. EPA is not proposing to establish BAT on the use of these technologies, but does
believe these technologies may result in cost savings at some operations. Additionally,
composting will achieve pathogen reductions. As described in section VELC.9., EPA is
continuing to examine pathogen controls and may promulgate requirements on the discharge of
pathogens. If EPA set limitations on pathogens, composting technology would likely become a
basis for achieving BAT limits. EPA invites comment on composting and its application to dry
beef and dairy manure.
For any operation that has inadequate crop land on which to apply its manure and
wastewater, solid-liquid separation and composting could benefit the CAFO, as these
technologies will make the manure more transportable. Drier manure is easier to transport; and
therefore, EPA believes solid liquid separation and composting will be used in some situations to
reduce the transportation cost of excess manure. In addition, composting is a value-added
process that improves the physical characteristics (e.g., reduces odor and creates a more
homogenous product) of the manure. It can also make the manure a more marketable product.
As a result, a CAFO with excess manure may find it easier to give away, or even sell, its excess
manure. EPA encourages all CAFOs to consider technologies that will reduce the volume of
manure requiring storage and make the manure easier to transport.
Option 6, which requires anaerobic digestion treatment with methane capture, was not
considered for the beef subcategory, but was considered for the dairy subcategory for treatment
of liquid manure. Anaerobic digestion can only be applied to liquid waste. As described
previously in Section VI, beef feedlots maintain a dry manure, yet they capture storm water
runoff from the dry lot and manure stockpile. The storm water runoff is generally too dilute to
apply digestion technology.
Most dairies, however, handle manure as a liquid or slurry which is suited to treatment
through anaerobic digestion. EPA concluded that application of anaerobic digesters at dairies
will not necessarily lead to significant reductions in the pollutants discharges to surface waters
from CAFOs. An anaerobic digester does not eliminate the need for liquid impoundments to
store dairy parlor water and barn flush water and to capture storm water runoff from the open
areas at the dairy. Neither do digesters reduce the nutrients, nitrogen or phosphorus. Thus,
basing BAT on digester technology would not change the performance standard that a production
area at a CAFO would achieve and would not reduce or eliminate the need for proper land
application of manure. Digesters were considered because they achieve some degree of waste
stabilization and more importantly they capture air emissions generated during manure storage.
The emission of ammonia from manure storage structures is a potentially significant contributor
237
-------
of nitrogen to surface waters. Covered anaerobic digesters will prevent these emissions while the
waste is in the digester, but the digester does not convert the ammonia into another form of |
nitrogen, such as nitrate, which is not as volatile. Thus as soon as the manure is exposed to air .
the ammonia will be lost. Operations may consider additional management strategies for land :
application such as incorporation in order to maintain the nitrogen value as fertilizer and to
reduce emissions.
As mentioned above, the application of ambient temperature or mesophilic anaerobic
digesters would not change the performance standard that a CAFO would achieve. EPA
considered anaerobic digestion as a means to control pathogens. Thermophilic digestion which
applies heat to the waste will reduce pathogens. As described in Section VIII.C.9. EPA is still
evaluating effective controls for pathogens.
' EPA is not proposing to base BAT requirements on Option 7 for the beef and dairy
subcategories. Option 7 would prohibit manure application on saturated, snow covered or frozen
ground. Pollutant runoff associated with application of manure or wastewaterto saturated, snow
covered or frozen ground is a site specific consideration, and depends on a number of site
specific variables, including distance to surface water and slope of the land. EPA believes that
establishing a national standard that prohibits manure or wastewater application is inappropriate
because of the site specific nature of these requirements and the regional variability across the
nation. This is described in Section vn.E.5.b, above. However, Section VII also explains that
EPA is proposing to revise 40 CFR Part 122 to require the permit authority to include, on a case-
by-case basis, restrictions on the application of CAFO waste to frozen, snow covered or saturated
ground in CAFO permits. This permit condition should account for topographic and climatic
conditions found in the state.
Requirements for the beef and dairy subcategories would still allow for an overflow in the
event of a chronic or catastrophic storm that exceeds the 25-year, 24-hour storm. EPA believes
this standard reflects the best available technology. Under the proposed revisions to Part 122,
permits will require that any discharge from the feedlot or confinement area be reported to the
permitting authority within 24 hours of the discharge event. The CAFO operator must also
report the amount of rainfall and the approximate duration of the storm event.
BAT Requirements for the Swine, Veal and Poultry Subcategories. EPA is proposing to
establish BAT requirements for the swine, veal and poultry subcategories based on Option 5. For
the purpose of simplifying this discussion, the term poultry is used to include chickens and
turkeys. Option 5 requires zero discharge of manure and process wastewater and provides no
overflow allowance for manure and wastewater storage. Land application requirements for these
operations would be the same as the requirements under Option 2.
EPA is proposing Option 5 because swine, veal and poultry operations can house the
animals under roof and feed is also not exposed to the weather. Thus, there is no opportunity for
storm water contamination. Broiler and turkey operations generate a dry manure which can be
238
-------
kept covered either under a shed or with tarps. Laying hens with dry manure handling usually
store manure below the birds' cages and inside the confinement building. Veal and poultry
operations confine the animals under roof, thus there are no open animal confinement areas to
generate contaminated storm water. Those operations with liquid manure storage can comply
with the restrictions proposed under this option by diverting uncontaminated storm water away
from the structure, and covering the lagoons or impoundments.
The technology basis for the poultry BAT requirements at the production area are litter
sheds for broiler and turkey CAFOs, and underhouse storage for laying hens with dry manure
handling systems. For laying hen CAFOs with liquid manure handling systems, EPA's
technology basis is solid separation and covered storage for the solids and covered lagoons.
Laying hen farms may also have egg wash water from in-line or off-line processing areas.
Only 10% of laying hen operations with fewer than 100,000 birds have on farm egg processing,
while 35% of laying hen operations with more than 100,000 birds have on farm egg processing.
The wash water is often passed through a settling system to remove calcium, then stored in above
ground tanks, below ground tanks, or lagoons. Today's proposal is based on covered storage of
the egg wash water from on-farm processing, to prevent contact with precipitation. The ultimate
disposal of egg wash water is through land application which must be done in accordance with
the land application rates established in the PNP. EPA believes the low nutrient value of egg
wash water is unlikely to cause additional incremental costs to laying hen facilities to comply
with the proposed land application requirements.
EPA assumes large swine operations (e.g., operations with more than 1,250 hogs
weighing 55 pounds or greater) operate using total confinement practices. EPA based BAT
Option 5 on the same approach described above of covering liquid manure storage. CAFOs can
operate covered lagoons as anaerobic digesters which is an effective technology for achieving
zero discharge and will provide the added benefits of waste stabilization, odor reduction and
control of air emissions from manure storage structures. Anaerobic digesters also can be
operated to generate electricity which can be used by the CAFO to. offset operating costs.
Although Option 5 is the most expensive option for the hog subcategory, as shown on
Table X.E.2(a), EPA believes this option reflects best available technology economically
achievable because it prevents discharges resulting from liquid manure overflows that occur in
open lagoons and pond. Similarly, the technology basis of covered treatment lagoons and drier
manure storage is believed to reduce the likelihood of those catastrophic lagoon failures
associated with heavy rainfalls. Option 5 also achieves the greatest level of pollutant reductions
from runoff reaching the edge of the field. Non-water quality environmental impacts include
reduced emissions and odor, with a concurrent increase in nitrogen value of the manure, however
as mentioned previously, the ammonia concentration is not reduced and once the manure is
exposed to air the ammonia will volatilize. Water conservation and recycling practices
associated with Option 5 will promote increased nutrient value of the manure, reduced hauling
costs via reduced water content, and less fresh water use.
239
-------
The technology basis of Option 5, solid-liquid separation and storage of the solids, has
the advantage of creating a solid fraction which is more transportable, thus hog CAFOs that have
excess manure can use this technology to reduce the transportation costs.
EPA is aware of three open lot hog operations that have more than 1,250 hogs and there
may be a small number of others, but the predominant practice is to house the animals in roofed
buildings with total confinement. For open lot hog CAFOs, EPA is proposing to base BAT on
the application of hoop structures as described above.
Veal operations use liquid manure management and store manure in lagoons. EPA has
based BAT on covered manure and feed storage. The animals are housed in buildings with no
outside access. Thus, by covering feed and waste storage the need to capture contaminated storm
water is avoided.
In evaluating the economic achievability of Option 5 for the swine, veal and poultry
subcategories, EPA evaluated the costs and impacts of this option relative to Option 2. For these
subcategories, the incremental annual cost of Option 5 over Option 2 would be $110 million pre-
tax under the two-tier structure, and $140 million pre-tax under the three-tier structure. Almost
all of these incremental costs are projected to be in the swine sector. Since the majority of the
costs are borne by the swine subcategory, EPA solicits comment on establishing BAT on the
basis Option 5 for the only the veal and poultry subcategories, and establishing BAT on the basis
of Option 2 that the swine subcategory. EPA projects that there would be no additional costs
under the two-tier structure, and only very small additional costs under the three-tier structure for
the veal and poultry subcategories to move from Option 2 to Option 5. Under Option 2, EPA
estimates 300 swine operations and 150 broiler operations would experience stress under the
two-tier structure, and 300 swine operations and 330 broiler operations would experience stress
under the three-tier structure. Under Option 5 an additional 1,120 swine operations would
experience stress under both the two-tier and three-tier structures. All affected hog operations
have more than 1000 AU. None of these affected hog operations are small businesses based on
the Small Business Administration's size standards. There would be no additional broiler
operations experiencing stress under Option 5, and no veal, layer, or turkey operations are
projected to experience stress under either Option 2 or Option 5. EPA did not analyze the
benefits of Option 5 relative to Option 2. Under Option 2 operations are required to be designed,
constructed and operated to contain all process generated waste waters, plus the runoff from a 25-
year, 24-hour rainfall event for the location of the point source. Thus, the benefit of Option 5
over Option 2 would be the value of eliminating discharges during chronic or catastrophic
rainfall events of a magnitude of the 25-year, 24-hour rainfall event or greater. Further benefit
would be realized as a result of increased flexibility on the timing of manure application to land.
By preventing the rainfall and run-off from mixing with wastewater, CAFOs would not need to
operate such that land application during storm events was necessary.
EPA is not proposing Option 2 for these sectors. However, EPA notes that at the time of
the SBREFA outreach process, removing the 25-year, 24-hour design standard for any sector was
240
-------
not considered largely due to concern that a different design standard would lead to larger
lagoons or impoundments. EPA staff explicitly stated this to the SERs and other member of the
Panel. Although not extensively discussed, since it did not appear at that time to be an issue,
retention of this standard was supported by both the SERs and the Panel. At that time, EPA was
not planning to evaluate such an option because of the concern that this would encourage larger
lagoons. Since the Panel concluded it outreach, EPA decided to evaluate, and ultimately propose
removing this design standard for the veal, swine and poultry subcategories because of reports of
lagoon failures resulting from rainfall and poor management. As mentioned previously, all of
these sectors maintain their animals under roof eliminating the need to capture contaminated
storm water from the animal confinement area. In addition, most poultry operations generate a
dry manure, which when properly stored, under some type of cover, eliminates any possibility of
an overflow in te event of a large storm. Therefore EPA believes that Option 5 technology which
prevents the introduction of storm water into manure storage is achievable and represents Best
Available Technology, without redesigning the capacity of existing manure storage units.
However, EPA requests comment on retaining te 25-year, 24-hour storm design standard (and
thus basing BAT on Option 2) for these sectors, consistent with its intention at the time of the
SBREFA outreach process.
EPA is not proposing to base BAT for the swine, poultry and veal subcategories on
Option 3, because EPA believes Option 5 is more protective of the environment. If operators
move towards dry manure handling technologies and practices to comply with Option 5, there
should be less opportunity for ground water contamination and surface water contamination
through a direct hydrological connection. EPA strongly encourages any newly constructed
lagoons or anaerobic digesters to be done in such a manner as to minimize pollutant losses to
ground water. A treatment lagoon should be lined with clay or synthetic liner or both and solid
storage should be on a concrete pad or preferably a glass-lined steel tank as EPA has included in
its estimates of BAT costs. Additionally, Option 5 provides the additional non-water quality
benefit of achieving reductions in air emissions from liquid storage systems. EPA estimates that
the cost of complying with both Option 3 and 5 at existing facilities would be economically
unachievable.
EPA believes the proposed technology basis for broilers, turkeys and laying hens with dry
manure management will avoid discharges to ground water since the manure is dry and stored in
such a way as to prevent storm water from reaching it. Without some liquid to provide a
transport mechanism, pollutants cannot move through the soil profile and reach the ground water
and surface water through a direct hydrological connection.
EPA is not proposing to base BAT on Option 4 for the same reasons described above for
the beef and dairy subcategories.
EPA is not proposing to base BAT on Option 6, because EPA believes that the zero
discharge aspect of the selected option will encourage operations to consider and install
anaerobic digestion in situations where it will be cost effective.
241
-------
As with beef and dairy, EPA is not proposing to base BAT for swine, veaJ and poultry on
Option 7, but believes that permit authorities should establish restrictions as necessary in permits
issued to CAFOs. Swine, veal and poultry operations should take the timing of manure
application into account when developing the PNP. Any areas that could result in pollutant
discharge from application of manure to frozen, snow covered or saturated ground should be
identified in the plan and manure or wastewater should not be applied to those areas when there
is a risk of discharge.
EPA solicits comment on the use of remote liquid level monitoring at livestock
operations. As described above in Section VDI.C.3, this technology could provide advanced
notification that levels are reaching a critical point, and corrective actions could then be taken.
This technology does not prevent precipitation from entering the lagoon and does not prevent
overflows, therefore EPA chose not to propose this technology as BAT for swine or veal
operations. However, EPA solicits comments on applicability of this technology to livestock
operations, especially at swine and veal as an alternative to covers on lagoons.
PNP Requirements
There are a number of elements that are addressed by both USDA's "Guidance for
Comprehensive Nutrient Management Plans (CNMPs)" and EPA's PNP which would be
required by the effluent guidelines and NPDES proposed rules and is detailed in the guidance
document "Managing Manure Nutrients at Concentrated Animal Feeding Operations." EPA's
proposed PNP would establish requirements for CAFOs that are consistent with the technical
guidance published by USDA experts, but go beyond that guidance by identifying specific
management practices that must be implemented. What follows is a brief description of what
must be included in a PNP.
General Information. The PNP must have a Cover Sheet which contains the name and
location of the operation, the name and title of the owner or operator and the name and title of the
person who prepared the plan. The date (month, day, year) the plan was developed and amended
must be clearly indicated on the Cover Sheet. The Executive Summary would briefly describe
the operation in terms of herd or flock size, total animal waste produced annually, crop identity
for the full 5 year period including a description of the expected crop rotation and, realistic yield
goal. The Executive Summary must include indication of the field conditions for each field unit
resulting from the phosphorus method used (e.g., phosphorus index), animal waste application
rates, the total number of acres that will receive manure, nutrient content of manure and amount
of manure that will be shipped off-site. It should also identify the manure collection, handling,
storage, and treatment practices, for example animals kept on bedding which is stored in a shed
after removal from confinement house, or animals on slatted floors over a shallow pull plug pit
that is drained to an outdoor in-ground slurry storage inpoundment. Finally, the Executive
Summary would have to identify the watershed(s) in which the fields receiving manure are
located or the nearest surface water body. While the General Information section of a PNP
242
-------
would give a general overview of the CAFO and its nutrient management plan, subsequent
sections would provide further detail.
Animal Waste Production. This subsection details types and quantities of animal waste
produced along with manure nutrient sampling techniques and results. Information would be
included on the maximum number of livestock ever confined and the maximum livestock
capacity of the CAFO, in addition to the annual livestock production. This section would
provide an estimate of the amount of animal waste collected each year. Each different animal
waste source should be sampled annually and tested by an accredited laboratory for nitrogen,
phosphorous, potassium, and pH.
Animal Waste Handling, Collection, Storage, and Treatment. This subsection details best
management practices to protect surface and groundwater from contamination during the
handling, collection, storage, and treatment of animal waste. A review would have to be
conducted of potential water contamination sources from existing animal waste handling,
collection, storage, and treatment practices. The capacity needed for storage would be calculated.
Feedlot runoff would have to be contained and adequately managed. Runoff diversion
structures and animal waste storage structures would have to be visually inspected for: seepage,
erosion, vegetation, animal access, reduced freeboard, and functioning rain gauges and irrigation
equipment, on a weekly basis. Deficiencies based on visual inspections would have to be
identified and corrected within a reasonable time frame. Depth markers would have to be
permanently installed in all lagoons, ponds, and tanks. Lagoons, ponds, and tanks would have to
be maintained to retain capacity for the 25-year, 24-hour storm event. Dead animals, required to
be kept out of lagoons, would have to be properly handled and disposed of in a timely manner.
Finally, an emergency response plan for animal waste spills and releases would have to be
developed.
Land Application Sites. This subsection details field identification and soil sampling.
County(ies) and watershed code(s) where feedlot and land receiving animal waste applications
are located would be identified. Total acres of operation under the control of the CAFO (owned
and rented) and total acres where animal waste will be applied would be included. A detailed
farm map or aerial photo, to be included, would have to indicate: location and boundaries of the
operation, individual field boundaries, field identification and acreage, soil types and slopes, and
the location of nearby surface waters and other environmentally sensitive areas (e.g., wetlands,
sinkholes, agricultural drainage wells, and aboveground tile drain intakes) where animal waste
application is restricted.
Separate soil sampling, using an approved method, would have to be conducted every 3
years on each field receiving animal waste. The samples shall be analyzed at an accredited
laboratory for total .phosphorous. Finally, the phosphorous site rating for each field would have
to be recorded according to the selected assessment tool.
243
-------
Land Application. This subsection details crop production and animal waste application
to crop production areas. Details of crop production would have to include: identification of all
planned crops, expected crop yields and the basis for yield estimates, crop planting and
harvesting dates, crop residue management practices, and nutrient requirements of the crops to be
grown. Calculations used to develop the application rate, including nitrogen credits from legume
crops, available nutrients from past animal waste applications, and nutrient credits from other
fertilizer and/or biosolids applications would have to be included.
Animal waste application rates cannot exceed nitrogen requirements of the crops.
However, animal waste application rates would be limited to the agronomic requirements for
phosphorous if the soil phosphorous tests are rated "high", the soil phosphorous tests are equal to
3/4, but not greater than twice the soil phosphorous threshold value, or the Phosphorous Index
rating is "high." Finally, animal waste could not be applied to land if the soil phosphorous tests
are rated "very high", the soil phosphorous tests are greater than twice the soil phosphorous
threshold value, or the Phosphorous Index rating is "very high." In some cases, operators may
choose to further restrict application rates to account for other limiting factors such as salinity or
PH.
Animal wastes cannot be applied to wetlands or surface waters, within 100 feet of a
sinkhole, or within 100 feet of water sources such as rivers, streams, lakes, ponds, and intakes to
agricultural drainage systems (e.g., aboveground tile drain intakes, agricultural drainage wells,
pipe outlet terraces). EPA requests comment on how serious would be the limitations imposed
by these requirements. Manure spreader and irrigation equipment would have to be calibrated at
a minimum once each year, but preferably before each application period. Finally, the date of
animal waste application and calibration application equipment, and rainfall amounts 24-hours
before and after application would be recorded.
Other Uses/Off-Site Transfer. The final required subsection for a PNP details any
alternative uses and off-site transport of animal wastes. If used, a complete description of
alternative uses of animal waste would have to be included. If animal wastes are transported off-
site the following would have to be recorded: date (day, month, year), quantity, and name and
location of the recipient of the animal waste.
Voluntary Measures. Many voluntary best management practices can be included within
various subsections of a PNP. These voluntary best management plans are referenced in EPA's
guidance document for PNP "Managing Manure Nutrients at Concentrated Animal Feeding
Operations."
Annual Review and Revision. While a PNP is required to be renewed every 5 years
(coinciding with NPDES permitting), an annual review of the PNP would have to occur and the
PNP would b revised or amended as necessary.
244
-------
The most likely factor which would necessitate an amendment or revision to a PNP is a
change in the number of animals at the CAFO. A substantial increase in animal numbers (for
example an increase of greater than 20%) would significantly increase the volume of manure and
total nitrogen and phosphorous produced on the CAFO. Because of this, the CAFO will need to
re-evaluate animal waste storage facilities to ensure adequate capacity, and may need to re-
examine the land application sites and rates.
A second reason which would require an amendment or revision to a PNP is a change in
the cropping program which would significantly alter land application of animal waste. Changes
in crop rotation or crop acreage could significantly alter land application rates for fields receiving
animal waste. Also the elimination or addition of fields receiving animal waste application
would require a change in the PNP.
Changes in animal waste collection, storage facilities, treatment, or land application
method would require an amendment or revision to a PNP. For example, the addition of a solid-
liquid separator would change the nutrient content of the various animal waste fractions and the
method of land application thereby necessitating a revision in a PNP. Changing from surface
application to soil injection would alter ammonia volatilization subsequently altering animal
waste nutrient composition requiring a revision of land application rates.
When CAFOs Must Have PNPs. EPA proposes to allow two groups of CAFOs up to 90
days to obtain a PNP:
3. existing CAFOs which are being covered by a NPDES permit for the first time; or
4. existing CAFOs that are already covered under an existing permit which is
reissued within 3 years from the date of promulgation of these regulations.
EPA proposes that all other existing CAFOs must have a PNP at the time permits are issued or
renewed.
7.
New Source Performance Standards
For purposes of applying the new source performance standards (NSPS) being proposed
today, a source would be a new source if it commences construction after the effective date of the
forthcoming final rule. (EPA expects to take final action on this proposal in December 2002,
which is more than 120 days after the date of proposal - see 40 CFR 122.2). Each source that
meets this definition would be required to achieve any newly promulgated NSPS upon
commencing discharge.
In addition, EPA is proposing additional criteria to define "new source" that would apply
specifically to CAFOs under Part 412. EPA intends that permit writers will consult the specific
"new source'.' criteria in Part 412 rather than the more general criteria set forth in 40 CFR
122.29(b)(l). The other provisions of 40 CFR 122.29 continue to apply. EPA proposes to
consider an operation as a new source if any of the following three criteria apply.
245
-------
The definition of new source being proposed for Part 412 states three criteria that
determine whether a source is a "new source."
First, a facility would be a new source if it is constructed at a site at which no other
source is located. These new sources have the advantage of not having to retrofit the operation to
comply with BAT requirements, and thus can design to comply with more stringent and
protective requirements.
The second criterion for defining a new source would be where new construction at the
facility "replaces the housing, waste handling system, production process, or production
equipment that causes the discharge or potential to discharge pollutants at an existing source."
Confinement housing and barns are periodically replaced, allowing the opportunity to install
improved systems that provide increased environmental protection. The modem confinement
housing used at many swine, dairy, veal, and poultry farms allows for waste handling and storage
in a fashion that generates little or no process water. Such systems negate the need for traditional
flush systems and storage lagoons, reduce the risks of uncontrollable spills, and decrease the
costs of transporting manure. . :
Third, a source would be a new source if construction is begun after the date this rule is
promulgated and its production area and processes are substantially independent of an existing
source at the same site. Facilities may construct additional production areas that are located on
one contiguous property, without sharing waste management systems or commingling waste
streams. Separate production areas may also be constructed to help control biosecurity. New
production areas may also be constructed for entirely different animal types, in which case the
more stringent NSPS requirements for that subcategory would apply to the separate and newly
constructed production area. In determining whether production and processes are substantially
independent, the permit authority is directed to consider such factors as the extent to which the
new production areas are integrated with the existing production areas, and the extent to which
the new operation is engaging in the same general type of activity as the existing source.
EPA also considered whether a certain level of facility expansion, measured as an
increase in animal production, should cause an operation to be subject to new source
performance standards. If so, upon facility expansion, the CAFO would need to go beyond
compliance with BAT requirements to meet the more stringent standards represented by NSPS.
In today's proposal, that increment of additional control, for the swine, poultry and veal
subcategories, would amount to the need to monitor ground water and install liners in lagoons
and impoundments to prevent discharges to ground water that has a direct hydrological
connection to surface water; unless the CAFO could demonstrate that no such direct hydrological
link existed. In the beef and dairy subcategories, the NSPS proposed today are the same as the
BAT standards.
The Agency, however, decided against proposing to identify facility expansion as a
trigger for the application of NSPS. Many CAFOs oversize or over-engineer their waste
246
-------
handling systems to accommodate future increases in production. Thus, in many cases, the
actual increases in production may not present a new opportunity for the CAFO to install the
additional NSPS technologies - e.g. liners. To install liners, these operations would need to
retrofit their facilities the same as existing sources would. EPA has explained above that such
retrofitting would not be economically achievable in these animal sectors. Similarly, the costs
associated with these requirements would represent a barrier to the expansion. Therefore, it
would not be appropriate to require these operations, upon facility expansion, to meet the
additional ground water-related requirements that are a part of today's proposed NSPS.
EPA considered the same seven options for new source performance standards (NSPS) as
it considered for BAT. EPA also considered an additional option for new dairies, which if
selected, would prohibit dairies from discharging any manure or process wastewater from animal
confinement and manure storage areas (i.e., eliminating the allowance for discharging overflows
associated with a storm event). New sources have the advantage of not having to retrofit the
operation to comply with the requirements and thus can design the operation to comply with
more stringent requirements. In selecting new source performance standards, EPA evaluates
whether the requirements under consideration would impose a barrier to entry to new operations.
EPA is proposing to select Option 3 as the basis for NSPS for the beef and dairy
subcategories. Option 3 includes all the requirements proposed for existing sources including
complying with zero discharge from the production area except in the event of a 25-year, 24-hour
storm and the requirement to develop a PNP which establishes the rate at which manure and
wastewater can be applied to crop or pasture land owned or controlled by the CAFO. The
application of manure and wastewater would be restricted to a phosphorus based rate where
necessary depending on the specific soil conditions at the CAFO. Additionally, other best
management practice requirements would apply, including the prohibition of manure and
wastewater application within 100 feet of surface water. The proposed new source standard for
the beef and dairy subcategories includes a requirement for assessing whether the ground water
beneath the production area has a direct hydrological connection to surface water. If a direct
hydrological connection exists, the operation must conduct additional monitoring of ground
water up gradient and down gradient from the production area, and implement any necessary
controls based on the monitoring results to ensure that zero discharge to surface water via the
ground water route is achieved for manure stockpiles and liquid impoundments or lagoons. For
the purpose of estimating compliance costs, EPA has assumed that operations located in areas
with a direct hydrological connection will install synthetic material or compacted clay liners
beneath any liquid manure storage and construct impervious pads for any dry manure storage
areas. The operator would be required to collect and analyze ground water samples twice per
year for total dissolved solids, chlorides, nitrate, ammonia, total coliforms and fecal coliform.
EPA is believes that Option 3 is economically achievable for existing sources. Since new
sources are able to install impermeable liners at the time the lagoon or impoundment is being
constructed, rather than retrofitting impoundments at existing source, costs associated with this
requirement should be less for new sources in comparison to existing sources. EPA has
concluded that Option 3 requirements will not pose a barrier to entry for new sources.
247
-------
EPA is proposing to establish NSPS for all swine and poultry operations based on Option
5 and Option 3 combined. In addition the BAT requirements described in Section VDI.C.6, the
proposed new source standards would require no discharge via any ground water that has a direct
hydrological link to surface water. As described above, Option 3 requires all CAFOs to monitor
the ground water and impose appropriate controls to ensure compliance with the zero discharge
standard, unless the CAFO has demonstrated that there is no direct hydrological link between the
ground water and any surface waters. The proposed new source standard also restricts land
application of manure and wastewater to a phosphorus based rate where necessary depending on
the specific soil conditions at the CAFO. Additionally, other best management practice
requirements would apply, including that application of manure and wastewater would be
prohibited within 100 feet of surface water.
EPA encourages new swine and poultry facilities to be constructed to use dry manure
handling. Dry manure handling is currently the standard practice at broiler and turkey operations.
As described previously, some existing laying hen operations and most hog operations use liquid
manure handling systems. The proposed new source performance standard would not require the
use of dry manure handling technologies, but EPA believes this is the most efficient technology
to comply with its requirements.
EPA has analyzed costs of installing dry manure handling at new laying hen and swine
operations. Both sectors have operations which demonstrate dry manure handling can be used as
an effective manure management system. The dry manure handling systems considered for both
sectors require that the housing for the animals be constructed in a certain fashion, thus making
this practice less practical for existing sources. Both sectors have developed a high rise housing
system, which houses the animals on the second floor of the building allowing the manure to
drop to the first floor or pit. In the laying hen sector this is currently a common practice and with
aggressive ventilation, the manure can be maintained as a dry product. Hog manure has a lower
solids content, thus the manure must be mixed with a bedding material (e.g., wood chips, rice or
peanut hulls and other types of bedding) which will absorb the liquid. To further aid in drying
the hog manure, air is forced up through pipes installed in the concrete floor of the pit. With
some management on the part of the CAFO operator, involving mixing and turning the hog
manure in the pit periodically, the manure can be composted while it is being stored. The
advantages of the high rise system for hogs and laying hens include a more transportable manure,
which, in the case of the hog high rise system, has also achieved a fairly thorough decomposition.
The air quality inside the high rise house is greatly improved, and the potential for leaching
pollutants into the groundwater is greatly reduced. The design standard of these high rise houses
include concrete floors and also assume that the manure would be retained in the building until it
will be land applied, thus there is no opportunity for storm water to reach the manure storage and
virtually no opportunity for pollutants to leach to groundwater beneath the confinement house.
EPA believes that the cost savings associated with ease of manure transportation, as well as
improved animal health and performance, with the dry manure handling system for hogs will off-
set the increased cost of operation and maintenance associated with the high rise hog system.
Thus, EPA concludes the high-rise house does not pose a barrier to entry and is the basis for
248
-------
NSPS in both the laying hen and hog sectors. Although the high rise house is the basis of the
new source standards for the swine and laying hen sectors, operations are not prevented from
constructing a liquid manure handling system. If new sources in these sectors choose to
construct a liquid manure handling system, they would be required to line the lagoons if the
operation is located in an area that has a direct hydrologic connection, but the cost associated
with lining a lagoon at the time it is being constructed is much less than the cost to retrofit lagoon
liners.
EPA proposes to establish new source requirements for the veal subcategory on the basis
of Option 5 which requires zero discharge with no overflow from the production area and Option
3 which requires zero discharge of pollutants to groundwater which has a direct hydrological
connection to surface water, with the ground water monitoring or hydrological assessment
requirements described above. EPA believes that a zero discharge standard without any overflow
will promote the use of covered lagoons, anaerobic digesters or other types of manure treatment
systems. Additionally, this will minimize the use of open air manure storage systems, thus
reducing emission of pollutants from CAFOs.
New veal CAFOs would not be expected to modify existing housing conditions since
EPA is not aware of any existing veal operations that use dry manure handling systems. New
veal CAFOs would be expected to also use covered lagoons, or anaerobic digesters to comply
with the zero discharge standard. New veal CAFOs would be required to line their liquid manure
treatment or storage structures with either synthetic material or compacted clay to prevent the
discharge of pollutants to ground water which has a direct hydrological connection to surface
water. In addition, the CAFO would have to monitor the groundwater beneath the production
area to ensure compliance with the zero discharge requirement. The CAFO would not need to
install liners or monitor ground water if it demonstrates that there is no direct hydrologic link
between the ground water and any surface waters.
In addition to the seven options considered for both existing and new sources, EPA also
investigated a new source option for dairies that would prohibit all discharges of manure and
process wastewater to surface waters, eliminating the current allowance for the discharge of the
overflow of runoff from the production area. To comply with a zero discharge requirement,
dairies would need to transform the operation so they could have full control over the amount of
manure and wastewater, including any runoff, entering impoundments. Many dairies have drylot
areas where calves, heifers, and bulls are confined, as well as similar drylot areas where theO
mature cows are allowed access. EPA estimated compliance costs for a zero discharge
requirements assuming that the following changes would occur at new dairies:
(1) Freestall barns for mature cows would be constructed with six months underpit
manure storage, rather than typical flush systems with lagoon storage;
(2) Freestall barns with six months underpit manure storage would be constructed to
house heifers;
249
-------
(3) Calf barns with a scrape system would be constructed with a scrape system and six
months of adjacent manure storage; and
(4) New dairies would include covered walkways, exercise areas, parlor holding, and
handling areas.
Drylot areas are continually exposed to precipitation. The amount of contaminated runoff
from such areas that must be captured is directly related to the size of the exposed area and the
amount of precipitation. Under the current regulations, dairies use the 25-year, 24-hour rainfall
event (in addition to other considerations) when determining the necessary storage capacity for a
facility. Imposing a zero discharge requirement that prevents any discharge from impoundments
would force dairies to reconfigure in a way that provides complete control over all sources of
wastewater. EPA considered the structural changes in dairy design described here to create a
facility that eliminates the potential for contaminated runoff.
While EPA believes that confining all mature and immature dairy cattle is technically
feasible, the costs of zero discharge relative to the costs for Option 3 are very high. Capital costs
to comply with zero discharge increase by two orders of magnitude. EPA estimates annual
operating and maintenance costs would rise between one to two orders of magnitude above the
costs for Option 3. These costs may create a barrier to entry for new sources. In addition, EPA
believes selecting this option could have the unintended consequence of encouraging dairies to
shift calves and heifers offsite to standalone heifer raising operations (either on land owned by
the dairy or at contract operations) to avoid building calf and heifer barns. If these offsite
calf/heifer operations are of a size that they avoid being defined as a CAFO, the manure from the
immature animals would not be subject to the effluent guidelines.
EPA is not basing requirements for new dairies on the zero discharge option for the
reasons discussed above. EPA solicits comment on the approach used to estimate the costs for
new dairies to comply with a zero discharge requirement. Comments are particularly solicited on
aspects such as: converting from flush systems to underpit manure storage; types of housing for
calves and heifers; and whether the potential for uncontrollable amounts of precipitation runoff
have been sufficiently eliminated (including from silage). EPA also solicits comment on a
regulatory scenario that would establish a zero discharge requirement for manure and process
wastewater from barns (housing either mature or immature dairy cattle) and the milking parlor,
but would maintain the current allowance for overflow of runoff from drylot areas.
As an alternative to underpit manure storage, dairies could achieve zero discharge for
parlor wastes and barn flush water by constructing systems such as anaerobic digesters and
covered lagoons. These covered systems, if properly operated, can facilitate treatment of the
manure and offer opportunities to reduce air emissions. The resulting liquid and solid wastes
would be more stable than untreated manure. EPA solicits comment on the usefulness of
applying stabilization or treatment standards to liquid and slurry manures prior to land
application. Commenters encouraging the use of such standards should recommend appropriate
250
-------
measurement parameters such as volatile solids, BOD, COD, and indicator organism reduction(s)
to establish stability or treatment levels.
EPA has not identified any basis for rejecting the zero discharge option for dairies solely
due to animal health reasons. EPA solicits comment on the technical feasibility of confining
mature and/or immature dairy cattle in bams at all times.
Ten-year protection period
The NSPS that are currently codified in Part 412 will continue to have force and effect for
a limited universe of CAFOs. For this reason, EPA is proposing to retain the NSPS promulgated
in 1974 for Part 412. Specifically, following promulgation of the final rule that revises Part 412,
the 1974 NSPS would continue to apply for a limited period of time to certain new sources and
new dischargers. See CWA section 306(d) and 40 CFR 122.29(d). Thus, if EPA promulgates
revised NSPS for Part 412 in December 2002, and those regulations take effect in January 2003,
qualified new sources and new dischargers that commenced discharge after January 1993 but
before January 2003 would be subject to the currently codified NSPS for ten years from the date
they commenced discharge or until the end of the period of depreciation or amortization of their
facility, whichever comes first. See CWA section 306(d) and 40 CFR 122.29(d). After that ten
year period expires, any new or revised BAT limitations would apply with respect to toxic and
nonconventiona] pollutants. Limitations on conventional pollutants would be based on the 1974
NSPS unless EPA promulgates revisions to BPT/BCT for conventional pollutants that are more
stringent than the 1974 NSPS.
Rather than reproduce the 1974 NSPS in the proposed rule, EPA proposes to refer
permitting authorities to the NSPS codified in the 2000 edition of the Code of Federal
Regulations for use during the applicable ten-year period.
8. Pretreatment Standards for New or Existing Sources (PSES AND
PSNS)
EPA is not proposing to establish Pretreatment Standards for either new or existing
sources. Further, EPA is withdrawing the existing provisions entitled "Pretreatment standards
for existing sources" at §§412.14,412.16,412.24,412.26. Those existing provisions establish
no limitations. The vast majority of CAFOs are located in rural areas that do not have access to
municipal treatment systems. EPA is not aware of any existing CAFOs that discharge
wastewater to POTWs at present and does not expect new sources to be constructed in areas
where POTW access will be available. For those reasons, EPA is not establishing national
pretreatment standards. However, EPA also wants to make it clear that if a CAFO discharged
wastewater to a POTW, local pretreatment limitations could be established by the Control
Authority. These local limits are similar to BPJ requirements in an NPDES permit.
9. Effluent Guidelines Controls for Pathogens
251
-------
The third most common reason for waterbodies being listed on State §303(d) lists as an
impaired watershed is pathogens. Degradation of surface waters by excessive levels of
pathogens has been attributed to several sources, including natural wildlife, faulty septic systems,
and animal agriculture. As described in Section 5, stream water quality may be impacted by
animal feeding operations due to feedlot surface runoff, spills from liquid impoundments, tile
drain effluent, leaching and runoff from land receiving manure, and seepage from waste storage.
Degradation of aquatic and riparian habitat also occurs when animal grazing operations are
poorly managed.
In today's notice, EPA is not setting specific requirements for the control of pathogens.
The proposed BAT is expected to reduce pathogens to surface waters through the implementation
of the zero discharge requirements at the production area, and through the implementation of the
PNP at the land application area. Even without explicit requirements or limits for pathogen
controls, EPA expects considerable reduction in the discharge of pathogens for reasons described
below. Runoff simulations and loadings analysis predict a 50% reduction in fecal coliforms and
a 60% reduction in fecal streptococci under the regulatory scenario proposed today. Following
this proposal, EPA intends to further analyze technologies for the treatment or reduction of
pathogens in manure, and solicits comment on other approaches to control pathogens.
One mechanism for pathogen discharge to surface waters is catastrophic spills, whether
caused by intentional discharges or through overflow following major storms. EPA expects the
requirements for no discharge from the production area, as well as routine inspection and
mandatory management practices for the control of liquid impoundment levels, will reduce
catastrophic spills. For the swine and poultry sectors EPA believes the elimination of the storm
event at which an overflow is allowed will also reduce discharge of pathogens. At the production
area, operators would be required to be handle animal mortalities in a manner so as to prevent
contamination of surface water. The proper use of manure as a fertilizer, as specified in the
proposed regulations, may result in increased storage capacity and longer retention times of both
liquid and solid manure storage, allowing increased opportunity for natural die-off of pathogens.
For example, runoff from fields receiving poultry litter that had been stored prior to application
showed no significant difference in pathogen content in runoff from control fields (GEIS, 1999),
supporting the conclusion that pathogen reductions will occur from increased storage times.
Application rate has been identified as the single most important manure management
practice affecting pollution of surface waters from fields receiving manure. Other practices
affecting pathogen content in the runoff include amount of application, incorporation methods,
tillage, saturation of the receiving field, and elapsed time following application before a rainfall.
In one case study, swine lagoon effluent applied to tile drained fields at 1.1 inches showed no
difference in runoff qualitythan the control fields, but application at three times the rate showed
high levels of fecal coliform in the surface water. Fecal bacteria in runoff from land receiving
fresh manure may often be a significant proportion of the fecal contamination measured in the
surface waters. Vegetated filter strips are useful in removing pollutants from runoff on manured
252
-------
fields, particularly nutrients and sediment, but have not been identified as generally effective in
reducing bacterial concentrations in the runoff. Surface applications of manure are more likely to
result in fecal coliform transport when the soil is saturated, particularly in fine sandy loam soils.
EPA believes nutrient management practices and rates established in the PNP would limit
the quantity of nutrients that may be applied to fields and will reduce the occurrence of manure
application to saturated soils, or when a heavy storm event is predicted. Nutrient loss to surface
water under these conditions would result in reduced crop yields and would be reflected in
revisions made to the PNP in subsequent years translating to a lower manure application rate.
EPA has collected data on technologies useful in treating manure and wastes for
pathogens. Anaerobic digesters and even simple manure storage for an extended period of time
promote pathogen reductions through selective growth conditions and natural die-off over time.
The .addition of heat, such as is used in thermophilic digesters, further reduces pathogens. Proper
composting processes also involve high temperatures - achieving temperatures approaching 140
degrees F in the pile. Heat treatment over several days is likely to kill protozoans such as
Giardia and Cryptosporidium. The addition of lime to achieve high alkaline conditions, e.g.
achieving a pH >12, also is effective at killing many pathogens by disrupting the cell membrane
or disrupting virus viability;
EPA will continue to analyze the performance and applicability of treatments to reduce
pathogens in CAFO waste, and will analyze the costs of these processes. The processes
described above and others used to significantly reduce pathogens in biosolids or sewage sludge
such as heat treatment, drying, thermophilic aerobic digestion, pasteurization, disinfection, and
extended storage will be analyzed for their applicability to animal manures. EPA will give
consideration to establishing the same performance standards as required for Class A sludge in
Part 503. If supported by appropriate data, the final rule could establish these or other
appropriate standards as performance standards that the wastes would be required to meet prior
to land application. The CAFO would need to demonstrate achievement of these standards prior
to land application because of the impracticability of measuring the pollutant loadings in any
eventual runoff from the land application areas to the waters. EPA solicits comment on this
possible approach and specifically requests data relating to pathogen treatment and reductions
that are demonstrated to be effective on CAFO waste. EPA also solicits data on management
practices that can be applied to the land application of manure, which may reduce pathogens in
runoff.
10. Antibiotics
Related to concerns over pathogens in animal manures are concerns over antibiotics and
other Pharmaceuticals that may be present in the manure. As discussed in Section V, an
estimated 60-80% of all livestock receive antibiotics. Some antibiotics are metabolized, and
some are excreted with the manure. In cases where antimicrobials are administered to animals
through the feed, spilt feed and wastelage may contribute to antibiotic content of the waste
253
-------
storage. The presence of antibiotics in manure and the environment has been shown to result in
antibiotic resistant pathogens. EPA solicits comments on the direct effects of antibiotic residues
and antimicrobial resistance, specifically on how manure management may contribute to the
problem of antibiotics reaching the environment and contributing to pathogen resistance. EPA
also solicits data and information on effective treatment or practices that may be implemented by
CAFOs to reduce these releases.
IX. Implementation of Revised Regulations
A. How Do the Proposed Changes Affect State CAFO Programs?
EPA is proposing a number of changes to the effluent guidelines and the NPDES permit
regulations for CAFOs in today's proposed rule. Under 40 C.F.R. § 123.25, authorized NPDES
State programs must administer their permit programs in conformance with NPDES
requirements, including the requirements that address concentrated animal feeding operations (§
122.23) and the incorporation of technology-based effluent limitation guidelines and standards in-
permits (§ 122.44). Thus, today's proposed rule would require the 43 States [note that State is
defined in §122.2] with authorized NPDES permit programs for CAFOs to revise their programs
as necessary to be consistent with the revised federal requirements. Current NPDES regulations
note that authorized NPDES State permit programs are not required to be identical to the federal
requirements; however, they must be at least as stringent as the federal program. States are not
precluded from imposing requirements that are more stringent than those required under federal
regulations.
Any State with an existing approved NPDES permitting program under section 402 must
be revised to be consistent with changes to federal requirements within one year of the date of
promulgation of final changes to the federal CAFO regulations [40 C.F.R. § 123.62(e)]. In cases
where a State must amend or enact a statute to conform with the revised CAFO requirements,
such revisions must take place within two years of final changes to the federal CAFO regulations.
States that do not have an existing approved NPDES permitting program but who seek NPDES
authorization after these CAFO regulatory provisions are promulgated must have authorities that
meet or exceed the revised federal CAFO regulations at the time authorization is requested.
In States not authorized to administer the NPDES program, EPA will implement the
revised requirements. Such States may still participate in water quality protection through
participation in the CWA section 401 certification process (for any permits) as well as through
other means (e.g., development of water quality standards, development of TMDLs, and
coordination with EPA).
EPA is aware that the majority of States authorized to implement the NPDES program
supplement the NPDES CAFO requirements with additional State requirements, and some States
currently regulate or manage CAFOs predominantly under State non-NPDES programs. It has
254
-------
been suggested that EPA provide a mechanism through which State non-NPDES CAPO
programs can be recognized alternatives that would be authorized under the CWA.
No permit issued by a non-NPDES program will satisfy the NPDES permit requirement.
Facilities required to be covered by a NPDES permit must obtain a permit from an agency
authorized to issue a NPDES permit. However, EPA believes that the current NPDES program
provides a reasonable degree of flexibility consistent with CWA requirements, and that the
proposed CAFO regulation provides opportunities to incorporate State programs in several ways.
It is possible for non-NPDES State programs that currently regulate AFOs to gain EPA's
approval as NPDES-authorized programs. Such a change would require a formal modification of
the State's approved NPDES program, and the State would have to demonstrate that its program
meets all of the minimum criteria specified in 40 CFR Part 123, Subpart B for substantive and
procedural regulations. Among other things, these criteria include the restriction that permit
terms may not exceed 5 years, and include provisions on public participation in permit
development and enforcement, and EPA enforcement authority.
In addition, today's proposal provides specific flexibility on particular issues. First, with
regard to the off-site transfer of manure, EPA is requiring under one co-proposed option that the
CAFO operator obtain a certification from recipients that, if they intend to land apply the
manure, it will be done according to appropriate agricultural practices. EPA is proposing to
waive this requirement in a State that is implementing an effective program for addressing excess
manure generated by CAFOs. Second, EPA is proposing to require that processors be permitted,
.or co-permitted, along with their contract producers. EPA is requesting comment on an option
that would waive this requirement in certain instances in States with effective programs for
managing excess manure. EPA is also soliciting comment on one particular type of program, an
Environmental Management System developed by the processor, as sufficient to waive co-
permitting requirements. EPA is interested in comments on other specific requirements of
today's proposal that might be satisfied in whole or in part by State program requirements. This
could include ways to ensure that states with unique programs that meet or exceed the provisions
of the revised regulations and the CWA requirements could utilize their own programs that
include similar objectives such as enhanced water quality protection, public participation and
accountability,
A third possible means of providing flexibility for States would be available if the three-
tier regulatory structure is adopted in the final regulation. In the three-tier structure, all facilities
over 1,000 AU would be considered CAFOs by definition, and those between 300 AU and 1,000
AU would be CAFOs only if they meet one of several conditions, described in detail in Section
vn.B.3, or if designated by the permit authority as a significant contributor of pollution to waters
of the U.S. Those with fewer that 300 AU would become CAFOs only if designated by the
permit authority. A State with an effective non-NPDES program could succeed in helping many
operations avoid permits by ensuring they do not meet any of the conditions that would define
them as CAFOs.
255
-------
EPA is also soliciting comment on whether or not to adopt both the two-tier and the
three-tier structures, and to provide a mechanism to allow States to select which of the two
alternative proposed structures to adopt in their State NPDES program. Under this option, a
State could adopt the structure that best fits with the administrative structure of their program,
and that best serves the character of the industries located in their State and the associated
environmental problems. This option is viable only if the Agency is able to determine that the
two structures provide substantially similar environmental benefits by regulating equivalent
numbers of facilities and amounts of manure. Otherwise, States would be in a position to choose
a less stringent regulation, contrary to the requirements of the Clean Water Act. A discussion of
this option can be found in Section VJJ.B.4.
The requirements for State NPDES program authorization are specified under § 402(b) of
the CWA and within the broad NPDES regulations (40 CFR Part 123). These provisions set out
specific requirements for State authorization applicable to the entire NPDES program and the
Agency does not believe that broad changes to these requirements are appropriate in this
proposed rulemaking.
B. How Would EPA *s Proposal to Designate CAFOs Affect NPDES Authorized
States?
Today's proposal would provide explicit authority, even in States with approved NPDES
programs, for the EPA Regional Administrator to designate an AFO as a CAFO if it meets the
designation criteria in the regulations. EPA's authority to designate AFOs as CAFOs would be
subject to the same criteria and limitations to which State designation authority is subject.
However, EPA does not propose to assume authority or jurisdiction to issue permits to the
CAFOs that the Agency designates in approved NPDES States. That authority would remain
with the approved State. EPA requests comment on this prosed new designation authority.
C. How and When Will the Revised Regulations be Implemented?
EPA anticipates that this these proposed regulations will be promulgated as final
regulations in December, 2002, and published in the Federal Register shortly thereafter
(approximately January, 2003). As mentioned, authorized States programs will need up to two
years after that date to revise their programs to reflect the new regulations. Following a State's
revision of its program and approval of the revisions by EPA, we expect many States to want
additional time to develop new or revised CAFO general permits. EPA believes it is reasonable
to allow States one additional year to develop these new or revised general permits. To
summarize, some States will need until approximately January 2006 — i.e., three years after the
final rule is published ~ before they can make CAFO general permits available that reflect the
new regulations in the State.
At the same time, once these regulations are finalized, we estimate that there will be a
large number of operations that will need to apply for a permit, described in Section Vn.B.4. It is
256
-------
important to take into account that some States will not be making CAFO general permits
available to these facilities until three years after the final rule. If EPA were to make the new
Part 122 regulations effective shortly after we issue the final rale (January 2003), there would be
large numbers of facilities that would be newly defined as CAFOs at that time. They would be
required to apply for a permit right away, but States would not be able to issue general permits at
that time or a large number of individual permits all at once. This would leave the facilities
potentially in the detrimental position of being unpermitted dischargers.
To avoid this situation, EPA proposes that the revisions to the CAFO definition in Part
122 (including, for example, changes to the threshold number of animals to qualify as a CAFO
and other changes such as the elimination of the 25-year, 24-hour storm exemption) would not
take effect until three years after publication of the final rules. See proposed section 122.23(f).
We expect, therefore, that these changes would not take effect until approximately January, 2006.
Operations that are brought within the regulatory definition of a CAFO for the first time under
these regulatory revisions would not be defined as CAFOs under final and effective regulations
until that date.
EPA also considered an alternate approach in which the effective date for the Part 122
revisions would be different in each State, depending on when the State actually adopted and got
approval for the changes and issued general permits. An advantage of this approach would be
that the new regulations would potentially be effective at an earlier date, i.e., before January
2006, in some States. EPA is not proposing this approach, however. We decided that it would
be preferable to provide one uniform effective date for these particular revisions, which would
provide necessary clarity and consistency to the national NPDES program for CAFOs. EPA does
seek comment, however, on which approach would be preferable to adopt in the final regulations.
States, however, are free to implement more stringent requirements, and may choose to
implement the revised CAFO definition at an earlier date.
It should be noted that EPA is proposing this delayed effective date only for the proposed
regulator^' changes that affect which operations would be defined as CAFOs. There is no need to
delay the effective date of any of the other revisions EPA is proposing to the CAFO regulations
at 40 CFR Part 122, such as those that specify land application requirements and other
requirements. These other revisions to the Part 122 regulations would become effective 60 days
after publication of the final regulations (January 2003). For any operation that is a CAFO
according to the current definition and that is being permitted after that date, or having its permit
renewed, the permit would be developed under these new Part 122 provisions.
EPA is proposing that the revised effluent guidelines, once promulgated as final
regulations, would be effective 60 days after promulgation. The 1989 statutory deadline for
meeting BAT has long passed, and we do not believe there is any reason why permit writers
could not begin incorporating the revised effluent guidelines into permits beginning 60 days after
promulgation.
257
-------
If a CAFO submits a timely application for a permit renewal, but has not received a
decision on that application prior to the expiration date of the original permit, then the original
permit would be administratively "continued" until there is a decision from the permit authority
on the new application (in EPA-administered States and States with comparable administrative
procedure laws). If that continuance lasts beyond the date that is the effective date of the revised
NPDES regulations and effluent guidelines, then the CAFO's new permit would reflect both sets
of new regulations.
EPA also proposes to adopt specific timing requirements in the permit with respect to the
CAFO's development of PNPs. As described in Section Vffl, EPA proposes to establish BAT as
encompassing the following timing requirements: 1) for all new permittees and for applicants
who hold existing individual permits, compliance with the PNP would be an immediate
requirement of the permit. Therefore, the draft PNP must be submitted to the permit authority
along with the permit application or NOI; the final PNP must be adopted by the permittee within
90 days of being permitted; 2) for applicants who are authorized under an existing general
permit, the permittee must develop a Permit Nutrient Plan within 90 days of submittal of the
NOI; and 3) the PNP for all CAFOs would need to include milestones for implementation. This
time is necessary because, while operators can begin preparing necessary data, it would be
difficult to develop a PNP before the permit authority issues a final permit that specifies the
terms and conditions of the permit. (Operators of existing CAFOs with individual NPDES
permits, who must submit their draft PNP with the permit application, are expected to reapply for
coverage under the revised regulation early enough to provide time to develop its PNP without
causing a lapse in coverage.) For facilities that have been designated as CAFOs, the permit
writer will develop the implementation schedule in order to provide reasonable time to prepare
thePNP.
Prior to the effective date of the revised regulations, State and EPA permit authorities will
be issuing permits to facilities that currently meet the definition of a CAFO under the existing
regulations or that have been designated as CAFOs. Consistent with the AFO Strategy, discussed
in section 1KB., during 2000 to 2005 States with authorized NPDES programs are to focus on
issuing permits to the largest CAFOs, those with 1,000 AU or greater. In States where EPA is
the permit authority, EPA will issue permits to operations defined as CAFOs that are over 300
AU. The permits are valid for a maximum of five years, at which time these facilities would
obtain new permits under the revised regulation.
One of the significant changes to the NPDES and ELG regulation for CAFOs will be the
requirement to develop and implement Permit Nutrient Plans that are developed, or reviewed and
approved, by certified planners. Concern has been raised about the availability of the necessary
expertise to develop and certify the plans. EPA believes that there will be sufficient lead time
before this regulation is implemented to expect the market to have developed the CNMP and
PNP planning expertise and infrastructure because, during this period, CNMPs will be developed
under both the USDA voluntary program and EPA's Round I permitting.
258
-------
For facilities subject to the requirements of the revised regulation, EPA anticipates that
during the period between the time this regulation is promulgated and the time it is effective,
operators will be able to anticipate the status of their facilities, and therefore can begin gathering
data that will be needed for the Permit Nutrient Plan and other requirements, such as soil type,
manure sampling, cropping information, and other data needed to calculate the allowable manure
application rate. (Note: States are supposed to have adopted their NRCS 590 standard by May
2001.)
EPA also proposes that CAFOs that are new sources may not receive permit coverage
until the PNP is developed. In this case, a complete application must include the PNP. The
owner or operator of a new facility is expected to design and construct the new facility in a
manner that anticipates the ELG and NPDES requirements for manure management, rather than
incurring the costs of retrofitting an already constructed facility.
EPA recognizes that some practices such as liners and groundwater wells for beef and
dairy operations may take time to implement. The PNP will include a schedule for implementing
the provisions of the PNP, including milestones with dates.
Facilities Constructed After the Proposed Regulation is Published.
EPA is soliciting comment on whether the revised regulations should apply 60 days after
publication of the final rule to facilities that commence operation after that date, even if they
would not be defined as a CAFO under the existing rules. Although EPA is proposing to delay
for three years the effective date of the proposed regulations for existing facilities that are not
currently defined as CAFOs, it is considering whether to require all facilities defined as CAFOs
under the final rule that commence operation after the final rule is published to obtain an NPDES
permit and comply with the other requirements of the final rule. For example, a dry poultry
operation or an animal feeding operation of 501 cattle that is constructed during the three year
period after publication of the final rule might be required to comply immediately with the
revised regulations rather than remaining outside the scope of the NPDES program until three
years after publication of the final rule.
Requiring newly constructed facilities to obtain permits does not pose the same problem
as requiring all existing AFOs which are not defined as CAFOs under the current rule to obtain
permits immediately after promulgation of the final rule. Once a new definition of a CAFO
becomes effective, a large number of existing facilities would need a permit on the same date.
EPA expects that most existing facilities will seek coverage under a general permit. However,
EPA and authorized States will need some time after the final rule is promulgated to develop
those general permits. An existing facility would face the dilemma of either ceasing operations or
discharging without a permit if it was required to obtain a permit but none was available. By
contrast, new facilities would commence operation over a period of time and present less of a
burden on permit authorities. If a general permit was not available, issuing individual permits to
the smaller number of newly constructed facilities would present less of a burden. If all else
259
-------
fails, a newly constructed facility could not commence operation until it had a permit. This
approach would be consistent with EPA's general approach for regulation of new sources and
new dischargers, who are required to obtain an NPDES permit (and comply with any applicable
NSPS) prior to commencing operation. See 40 CFR 122.29,124.60(a). Finally, unlike an
existing facility, a newly constructed facility is in a better position to plan its facility to comply
with the revised regulations.
If EPA did not delay the effective date for facilities that are constructed after the final rule
is published, the rule would address additional sources sooner. On the other hand it would
further complicate the regulatory structure because it would temporarily create another category
of facilities. EPA solicits comments on whether all provisions of the rule should be effective 60
days after the final rule is published for facilities that are constructed after that date.
D. How Many CAFOs are Likely to be Permitted in Each State and EPA
Region?
Tables 9-1 and 9-2 delineate the number of facilities, in each State and EPA Region, that
are expected to be affected by either of today's proposed two-tier and three-tier structures,
respectively. In both proposed structures, all CAFOs with more than 1,000 AU would be
required to apply for a NPDES permit. The differences lie primarily in how the middle-sized
operations are affected.
Table 9-1. Projected Estimated Number of Potential CAFOs Potentially Regulated Under
the Three-Tier Structure by Region, State and Size
EPA
Region
Region 1
Region 2
State
Connecticut
Maine
Massachusetts
New
Hampshire
Rhode Island
Vermont
New Jersey
New York
<300AU
0
0
0
0
0
0
0
0
Regional
Subtotal
0
0
300-
1,000 AU
39
60
41
29
5
129
27
514
Regional
Subtotal
303
542
>1,000
AU
9
8
7
4
0
15
6
79
Regional
Subtotal
43
85
Total
48
68
48
33
5
144
33
593
Regional
Subtotal
346
627
260
-------
EPA
Region
Region 3
Region 4
Region 5
Region 6
Region 7
Region 8
State
Delaware
Maryland
Pennsylvania
Virginia
West Virginia
Alabama
Florida
Georgia
Kentucky
Mississippi
N.Carolina
S. Carolina
Tennessee
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
Iowa
Kansas
Missouri
Nebraska
Colorado
Montana
<300AU
0
0
0
0
0
0
0
0
0
0
0
0
0
1
1
1
2
0
3
0
0
0
0
0
2
0
0
0
0
0
Regional
Subtotal
0
0
8
0
2
300.
1,000 AU
332
437
628
551
135
1,224
247
1,360
233
766
1,454
306
265
461
455
345
785
L_ 369
574
1,418
211
30
289
841
1,440
188
449
442
121
32
Regional
Subtotal
2,084
5,854
2,988
2,789
-
2,519
>1,000
AU
97
137
321
216
75
557
169
834
179
433
1,218
201
114
377
328
[ 144
496
,_ 217
141
580
86
112
175
675
1,318
277
321
641
210
55
Regional
Subtotal
845 J
3,706
1,704
1,629
2,557
Total
429
573
949
767
210
1,782
416
2,193
412
1,199
2,672
508
378
839
784
490
1,283
586
718
1,999
297
141
464
1,516
2,760
465
770
1,083
331
87
Regional
Subtotal
2,929
9,560
4,700
4,418
5,078
261
-------
EPA
Region
Region 9
.
RegionlO
State
North Dakota
South Dakota
Utah
Wyoming
Arizona
California
Hawaii
Nevada
Alaska
Idaho
Oregon
Washington
Total Potential Permittees
<300AU
0
0
0
0
0
0
0
0
0
0
0
0
10
Regional
Subtotal
0
0
0
300-
1,000 AU
35
181
123
18
30
956
16
15
3
176
156
320
19,260
Regional
Subtotal
509
1,017
655
>1,000
AU
28
177
53
24
83
1,031
16
20
1
151
72
168
12,660
Regional
Subtotal
548
1,151
392
Total
63
358
176
42
113
1,988
33
35
4
328
228
488
31,930
Regional
Subtotal
1,057
2,168
1,047
Note: An additional 7,000 facilities in the 300 AU to 1,000 AU size category would potentially
be subject to the rule, but are projected to file a certification indicating that they do not need to
apply for a permit.
Table 9-2. Projected Estimated Number of Potential CAFOs Potentially Regulated Under
the Two-Tier Structure by Region, State and Size
EPA
Region
Region 1
Region 2
State
Connecticut
Maine
Massachusetts
New
Hampshire
Rhode Island
Vermont
New Jersey
<500AU
1
1
1
1
0
3
1
Regional
Subtotal
7
500-
1,000 AU
22
30
21
15
2
64
15
Regional
Subtotal
153
>1,000
AU
9
8
7
4
0
15
6
Regional
Subtotal
43
Grand
Total
32
39
29
20
3
82
22
Regional
Subtotal
204
262
-------
EPA
Region
Region 3
Region 4
Region 5
Region 6
Region 7
State
New York
Delaware
Maryland
Pennsylvania
Virginia
West Virginia
Alabama
Florida
Georgia
Kentucky
Mississippi
N. Carolina
S. Carolina
Tennessee
Illinois
Indiana
Michigan
' Minnesota
Ohio
Wisconsin
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
Iowa
Kansas
Missouri
Nebraska
<500AU
21
3
5
15
10
1
1
1
5
":••.:.: 7
- 1
0
r i
0
14
6
9
30
3
25
1
0
0
0
0
58
5
9
11
Regional
Subtotal
22
34
16
87
1
83
500-
1,000 AU
259
169
229
380
325
94
719
178
936
165
488
911
231
148
420
396
222
621
269
309
111
120
26
165
532
1,374
182
323
437
Regional
Subtotal
274
1,197
3,776
2,237
1,620
2^15
>1,000
AU
79
97
137
320
216
75
557
170
833
179
433
1,221
202
114
377
328
144
496
217
141
579
86
112
175
676
1,318
277
321
640
Regional
Subtotal
85
846
3,710
1,703
1,628
2356
Grand
Total
359
268
371
715
552
170
1,278
349
1,774
351
922
2,133
434
261
811
730
375
1,147
489
475
1,357
206
138
340
1,208
2,750
464
652
1,087
Regional
Subtotal
380
2,076
7,502
4,027
3,249
4,953
263
-------
EPA
Region
Region 8
Region 9
RegionlO
State
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
Arizona
California
Hawaii
. Nevada
Alaska
Idaho
Oregon
Washington
Total Potential Permittees
<500AU
0
0
0
0
0
0
0
0
0
0
0
0
0
0
250
Regional
Subtotal
0
0
0
250
500-
1,000 AU
81
25
27
149
65
9
23
545
10
8
2
97
82
167
12,860
Regional
Subtotal
355
586
348
12,860
>1,000
AU
210
55
28
177
53
24
83
1,029
16
21
1
151
"72
169
12,660
Regional
Subtotal
548
1,149
393
12,660
Grand
Total
291
80
54
326
118
33
106
1,574
26
29
3
248
153
336
25,770
Regional
Subtotal
"
902
1,735
741
25,770
As described in today's preamble, the three-tier structure would affect more facilities
because all AFOs with 300 AU or more would be required to do something. However, not all
would be required to apply for a permit, and, depending on the vigor with which States and
AFOs seek to avoid the conditions defining these facilities as CAFOs, the actual number of
permittees could be smaller. EPA projects that a minimum of 4,000 middle-sized facilities and a
maximum of 19,000 would apply for a permit under the three-tier structure. By contrast, the
proposed two-tier structure would require all 13,000 facilities,between 500 AU and 1,000 AU to
apply for a permit.
Further, the number of small facilities likely to be designated differs between the two
proposed structures. - Under the three-tier structure, EPA expects very few AFOs to be
designated, potentially 10 per year nationally. Under the two-tier structure, however, this number
is likely to rise to 50 per year, given that AFOs from 300 AU to 499 AU have the potential to
generate significant quantities of manure that, if not properly managed, may lead the facility to be
a significant contributor of pollution to the waters.
E. Funding Issues
264
-------
While most CAFO owners and operators are interested in taking appropriate measures to
protect and preserve the environment, there are legitimate concerns over the costs of doing so.
While EPA's cost analysis indicates that this rule is affordable, some businesses in some locales
may experience economic stress. (See Section X). Further, concern has been expressed as to
whether facilities below 1,000 AU that become CAFOs due to the changes in this proposed
rulemaking may potentially cause operations to lose cost-share money available under EPA's
Section 319 Nonpoint Source Program and USDA's Environmental Quality Incentive Program
(EQIP). Once a facility is considered a point source under NPDES, the operation is not eligible
for cost sharing under the Section 319 nonpoint source program. However, the USDA EQIP
program is in fact available to most facilities, and being a permitted CAFO is not a reason for
exclusion from the EQIP program. EQIP funds may not be used to pay for construction of
storage facilities at operations with greater than 1,000 USDA animal units; however, EQIP is
available to these facilities for technical assistance and financial assistance for other practices.
One USDA animal unit equals 1,000 pounds of live weight of any given livestock species or any
combination of livestock species. (The approximate number of animal equivalents would be:
1,000 head of beef; 741 .dairy cows; 5,000 swine, 250,000 layers; and 500,000 broilers).
To this end, EPA anticipates that State and Federal Agencies will facilitate compliance
with this rule by providing technical assistance and funding for smaller CAFOs, as available.
F. What Provisions are Made for Upset and Bypass?
A recurring issue of concern has been whether industry guidelines should include
provisions authorizing noncompliance with effluent limitations during periods of "upsets" or
"bypasses". An upset, sometimes called an "excursion," is an unintentional noncompliance
occurring for reasons beyond the reasonable control of the permittee. It has been argued that an
upset provision is necessary in EPA's effluent limitations because such upsets will inevitably
occur even in properly operated control equipment. Because technology based limitations
require only what the technology can achieve, it is claimed that liability for such situations is
improper. When confronted with this issue, courts have disagreed on whether an explicit upset
exemption is necessary, or whether upset incidents may be handled through EPA's exercise of
enforcement discretion. Compare Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir.1977), with
Weyerhaeuser v. Costle, 594 F.2d 1223 (8th Cir. 1979). See also Sierra Club v. Union Oil Co.,
813 F.2d 1480 (9th Cir. 1987), American Petroleum Institute v. EPA, 540 F.2d 1023 (10th Cir.
1976), CPC International, Inc. v. Train, 540 F.2d 1320 (8th Cir. 1976), and FMC Corp. v. Train,
539 F.2d 973 (4th Cir. 1976).
A bypass, on the other hand, is an act of intentional noncompliance during which waste
treatment facilities are circumvented because of an emergency situation. EPA has in the past
included bypass provisions in NPDES permits. EPA has determined that both upset and bypass
provisions should be included in NPDES permits and has promulgated permit regulations that
include upset and bypass permit provisions. See 40 CFR 122.41. The upset provision
establishes an upset as an affirmative defense to prosecution for violation of, among other
265
-------
requirements, technology-based effluent limitations. The bypass provision authorizes bypassing
to prevent loss of life, personal injury, or severe property damage. Consequently, although
permittees in the offshore oil and gas industry will be entitled to upset and bypass provisions in
NPDES permits, this regulation does not address these issues.
12502
G. How Would an Applicant Apply for Variances and Modifications to Today's
Proposed Regulation?
Once this regulation is in effect, the effluent limitations must be applied in all NPDES
permits thereafter issued to discharges covered under this effluent limitations guideline
subcategory. The CWA, however, provides certain variances from BAT and BCT limitations.
Under 301(1), the only variance available for discharges from the production area is an FDF
variance under 301(m). For the land application area, 301 (g) variances don't apply because EPA
is not setting BAT effluent limitations for the five pollutants to which that provision applies.
301(c) and PDF variances are available for effluent limitations covering the land application area.
The Fundamentally Different Factors (FDF) variance considers those facility specific
factors which a permittee may consider to be uniquely different from those considered in the
formulation of an effluent guideline as to make the limitations inapplicable. An FDF variance
must be based only on information submitted to EPA during the rulemaking establishing the
effluent limitations from which the variance is being requested, or on information the applicant
did not have a reasonable opportunity to submit during the rulemaking process for these effluent
limitations guidelines. If fundamentally different factors are determined, by the permitting
authority (or EPA), to exist, the alternative effluent limitations for the petitioner must be no less
stringent than those justified by the fundamental difference from those facilities considered in the
formulation of the specific effluent limitations guideline of concern. The alternative effluent
limitation, if deemed appropriate, must not result in non-water quality environmental impacts
significantly greater than those accepted by EPA in the promulgation of the effluent limitations
guideline. FDF variance requests with all supporting information and data must be received by
the permitting authority within 180 days of publication of the final effluent limitations guideline
(Publication date here). The specific regulations covering the requirements for and the
administration of FDF variances are found at 40 CFR I22.21(m)(l), and 40 CFR part 125,
subpartD.
267
-------
X. What are the Costs and Economic Impacts of the Proposed Revisions
A. Introduction and Overview
This section presents EPA's estimates of the costs and economic impacts that would occur
as a result of today's proposed regulations. Costs and economic impacts are evaluated for each
commodity sector, including the beef, veal, heifer, dairy, swine, broiler, turkey and egg laving
sectors. A description of each of the ELG technology options and the NPDES scenarios
considered by EPA, and the rationale for selecting the proposed BAT Option and NPDES
Scenario, are provided in Sections YE and Vffl of this document. Detailed information on
estimated compliance costs are provided in the Development Document for the Proposed
Revisions to the National Pollutant Discharge Elimination System Regulation and the Effluent
Guidelines for Concentrated Animal Feeding Operations (referred to as the "Development
Document"). EPA's detailed economic assessment can be found in Economic Analysis of the
Proposed Revisions to the National Pollutant Discharge Elimination System Regulation and the
Effluent Guidelines for Concentrated Animal Feeding Operations (referred to as "Economic
Analysis"). EPA also prepared the Environmental and Economic Benefit Analysis of the
Proposed Revisions to the National Pollutant Discharge Elimination System Regulation and the
Effluent Guidelines for Concentrated Animal Feeding Operations ("Benefits Analysis") in
support of today's proposal. These documents are available at EPA's website at
http://www.epa.gov/owm/afo.htm.
This section presents EPA's estimate of the total annual incremental costs and the
economic impacts that would be incurred by the livestock and poultry industry as a result of
today's proposed rule. This section also discusses EPA's estimated effects to small entities and
presents the results of EPA's cost-effectiveness and cost-benefit analysis. All costs presented in
this document are reported in 1999 pre-tax dollars (unless otherwise indicated).
B. Data Collection Activities
1. Sources of Data to Estimate Compliance Costs
As part of the expedited approach to this rulemaking, EPA has chosen not to conduct an
industry-wide survey of all CAFOs using a Clean Water Act Section 308 questionnaire. Rather,
EPA is relying on existing data sources and expertise provided by the U.S. Department of
Agriculture (USDA), industry, State agriculture extension agencies, and several land grant
universities. More detailed information on the data used for this analysis can be found in the
Development Document and also the Economic Analysis.
EPA collected and evaluated data from a variety of sources. These sources include
information compiled through EPA site visits to over 100 animal confinement operations and
268
-------
information from industry trade associations, government agencies, and other published
literature. EPA also received information from environmental groups such as the Natural
Resources Defense Council and the Clean Water Network. The Agency contacted university
experts, state cooperatives and extension services, and state and EPA regional representatives to
identify facilities for site visits. EPA also attended USDA-sponsored farm tours and site visits
arranged by other groups, as well as industry, academic, and government conferences.
EPA obtained data and information from several agencies in USDA, including the
National Agricultural Statistics Service (NASS), Natural Resources Conservation Service
(NRCS), the Animal and Plant Health Inspection Service (APHIS), and the Economic Research
Service (ERS). The collected data include statistical survey information and published reports.
EPA gathered information from a wide range of published NASS reports, including annual
data summaries for each commodity group. USDA's NASS is responsible for objectively
providing important, usable, and accurate statistical information and data support services on the
structure and activities of agricultural production in the United States. Each year NASS conducts
surveys and prepares reports covering virtually every facet of U.S. agricultural production. The
primary sources of data are animal production facilities in the United States. NASS collects
voluntary information using mail surveys, telephone and in-person interviews, and field
observations. NASS is also responsible for conducting a Census of Agriculture.
EPA's main source of primary USDA data containing farm level descriptive information
is USDA's Census of> Agriculture (Census). USDA's Census is a complete accounting of United
States agricultural production and is the only source of uniform, comprehensive agricultural data
for every county in the nation. The Census is conducted every 5 years by NASS. The Census
includes all farm operations from which $1,000 or more of agricultural products are produced
and sold. The most recent Census reflects calendar year 1997 conditions. This database is
maintained by USDA. Data used for this analysis were compiled with the assistance of staff at
USDA's NASS. (USDA periodically publishes aggregated data from these databases and also
compiles customized analyses of the data to members of the public and other government
agencies. In providing such analyses, USDA maintains a sufficient level of aggregation to ensure
the confidentiality of any individual operation's activities or holdings.)
USDA's NRCS publishes the Agricultural Waste Management Field Handbook, which is
an agricultural engineering guidance manual that explains general waste management principles
and provides detailed design information for particular waste management systems. USDA's
Handbook reports specific design information on a variety of farm production and waste
management practices at different types of feedlots. The Handbook also reports runoff
calculations under normal and peak precipitation as well as information on manure and bedding
characteristics. EPA used this information to develop its cost and environmental analyses.
NRCS personnel also contributed technical expertise in the development of EPA's estimates of
compliance costs and environmental assessment framework by providing EPA with estimates of
manure generation in excess of expected crop uptake. This information is provided in the record
that supports this rulemaking.
269
-------
NRCS also compiled and performed analyses on Census data that EPA used for its
analyses. These data identify the number of feedlots, their geographical distributions, and the
amount of cropland available to land apply animal manure generated from their confined feeding
operations (based on nitrogen and phosphorus availability relative to crop need).
EPA gathered information from several reports on the livestock and poultry industries
from the National Animal Health Monitoring System (NAHMS). USDA's APHIS provides
leadership in ensuring the health and care of animals and plants, improving agricultural
productivity and competitiveness, and contributing to the national economy and public health.
One of its main responsibilities is to enhance the care of animals. In 1983, APHIS initiated the
NAHMS as an information-gathering program to collect, analyze, and disseminate data on
animal health, management, and productivity. NAHMS conducts national studies to gather data
and generate descriptive statistics and information from data collected by other industry sources.
USDA's ERS provides economic analyses on efficiency, efficacy, and equity issues
related to agriculture, food, the environment, and rural development to improve public and
private decision-making. EPA's analysis of economic impacts at a model CAFO references a
wide range of published ERS reports and available farm level statistical models. ERS also
maintains farm level profiles of cost and returns compiled from NASS financial data.
Databases and reports containing the information and data used by EPA in support of this
proposed rule are available in the rulemaking record.
2. Sources of Data to Estimate Economic Impacts
To estimate economic impacts, EPA used farm level data from USDA, industry, and land
grant universities. The major source of primary USDA data on farm financial conditions is from
the Agricultural Resources Management Study (ARMS). ARMS is USDA's primary vehicle for
data collection on a broad range of issues about agricultural production practices and costs.
These data provide a national perspective on the annual changes in the financial conditions of
production agriculture.
USDA's ARMS data provide aggregate farm financial data, which EPA used for its cost
impact analysis. The ARMS data provide complete income statement and balance sheet
information for U.S. farms in each of the major commodity sectors, including those affected by
the proposed regulations. The ARMS financial data span all types of farming operations within
each sector, including full-time and part-time producers, independent owner operations and
contract grower operations, and confinement and non-confinement production facilities.
ERS provided aggregated data for select representative farms through special tabulations
of the ARMS data that differentiate the financial conditions among operations by commodity
sector, facility size (based on number of animals on-site) and by major producing region for each
sector. The 1997 ARMS data also provide corresponding farm level summary information that
matches the reported average financial data to both the total number of farms and the total
270
-------
number of animals for each aggregated data category. As with the Census data, ERS aggregated
the data provided to EPA to preserve both the statistical representativeness and confidentiality of
the ARMS survey data. ARMS data used for this analysis are presented in the Economic
Analysis and are available in the rulemaking record.
EPA obtained additional market data on the U.S. livestock and poultry industries as a
whole from a wide variety of USDA publications and special reports. These include: Financial
Performance of U.S. Commercial Farms, 1991-1994; USDA Baseline Projections 2000, Food
Consumption, Prices and Expenditures, 1970-1997; Agricultural Prices Annual Summary;
annual NASS statistical bulletins for these sectors; and data and information reported in
Agricultural Outlook and ERS's Livestock, Dairy, and Poultry Situation and Outlook reports.
Other source material is from ERS's cost of production series reports for some sectors and trade
reports compiled by USDA's Foreign Agricultural Service (FAS). Information on the food
processing segments of these industries is from the U.S. Department of Commerce's Census of
Manufacturers data series. Industry information is also from USDA's Grain Inspection Packers
and Stockyards Administration (GIPSA).
Industry and the associated trade groups also provided information for EPA's cost and
market analyses. In particular, the National Cattlemen's Beef Association (NCBA) conducted a
survey of its membership to obtain financial statistics specific to cattle feeding operations. EPA
used these and other data to evaluate how well the ARMS data for beef operations represent
conditions at cattle feedyards. EPA also obtained industry data from the National Milk
Producers Federation (NMPF) and the National Pork Producers Council (NPPC).
EPA also used published research by various land grant universities and their affiliated
research organizations, as well as information provided by environmental groups. ;
Databases and reports containing the information and data provided to and used by EPA in
support of this proposed rule are available in the rulemaking record.
C. Method for Estimating Compliance Costs
1. Baseline Compliance
For the purpose of this analysis, EPA assumes that all CAFOs that would be subject to the
proposed regulations are currently in compliance with the existing regulatory program (including
the NPDES regulations and the effluent limitations guidelines and standards for feedlots) and
existing state laws and regulations. As a practical matter, EPA recognizes that this is not true,
since only 2,500 operations out of an estimated 12,700 CAFOs with more than 1,000 AU have
actually obtained coverage under an NPDES permit and the remainder may in fact experience
additional costs to comply with the existing requirements. EPA has not estimated these
additional costs in the analysis that is presented in today's preamble because the Agency did not
consider these costs part of the incremental costs of complying with today's proposed rule.
271
-------
To assess the incremental costs attributable to the proposed rules, EPA evaluated current
federal and state requirements for animal feeding operations and calculated compliance costs of
the proposed requirements that exceed the current requirements. Operations located in states that
currently have requirements that meet or exceed the proposed regulatory changes would already
be in compliance with the proposed regulations and would not incur any additional cost. These
operations are not included as part of the cost analysis. A review of current state waste
management requirements for determining baseline conditions is included in the Development
Document and also in other sections of the record (See State Compendium: Programs and
Regulatory Activities Related to Animal Feeding Operations compiled by EPA and available at
http://www.epa.gov/owm/afo.htm#Compendium).
EPA also accounted for current structures and practices that are assumed to be already in
place at operations that may contribute to compliance with the proposed regulations. Additional
information is also provided in the following section (X.C.2(a)). This information is also
provided in the Development Document.
2. Method for Estimating Incremental CAFO Compliance Costs
a. Compliance Costs to CAFO Operators
For the purpose of estimating total costs and economic impacts, EPA calculated the costs
of compliance for CAFOs to implement each of the regulatory options being considered
(described in Section VIE of this preamble). EPA estimated costs associated with four broad
cost components: nutrient management planning, facility upgrades, land application, and
technologies for balancing on-farm nutrients. Nutrient management planning costs include
manure and soil testing, record keeping, monitoring of surface water and groundwater, and plan
development. Facility upgrades reflect costs for manure storage, mortality handling, storm water
and field runoff controls, reduction of fresh water use, and additional farm management
practices. Land application costs address agricultural application of nutrients and reflect
differences among operations based on cropland availability for manure application. Specific
information on the capital costs, annual operating and maintenance costs, start-up or first year
costs, and also recurring costs assumed by EPA to estimate costs and impacts of the proposed
regulations is provided in the Development Document.
EPA evaluated compliance costs using a representative facility approach based on more
than 170 farm level models that were developed to depict conditions and to evaluate compliance
costs for select representative CAFOs. The major factors used to differentiate individual model
CAFOs include the commodity sector, the farm production region, and the facility size (based on
herd or flock size or the number of animals on-site). EPA's model CAFOs primarily reflect the
major animal sector groups, including beef cattle, dairy, hog, broiler, turkey, and egg laying
operations. Practices at other subsector operations are also reflected in the cost models, such as
replacement heifer operations, veal operations, flushed caged layers, and hog grow- and farrow-
finish facilities. EPA used model facilities with similar waste management and production
practices to depict operations in regions that were not separately modeled.
272
-------
Another key distinguishing factor incorporated into EPA's model CAFOs includes
information on the availability of crop and pasture land for land application of manure nutrients.
For this analysis, nitrogen and phosphorus rates of land application are evaluated for three
categories of cropland availability: Category 1 CAFOs are assumed to have sufficient cropland
for all on-farm nutrients generated, Category 2 CAFOs are assumed to have insufficient cropland,
and Category 3 CAFOs are assumed to have no cropland. EPA used 1997 information from
USDA to determine the number of CAFOs within each category. This information takes into
account which nutrient (nitrogen or phosphorus) is used as the basis to assess land application
and nutrient management costs.
For Category 2 and Category 3 CAFOs, EPA evaluated additional technologies that may
be necessary to balance nutrients. EPA evaluated additional technologies that reduce off-site
hauling costs associated with excess on-farm nutrients, as well as to address ammonia
volatization, pathogens, trace metals, and antibiotic residuals. These technologies may include
Best Management Practices (BMPs) and various farm production technologies, such as feed
management strategies, solid-liquid separation, composting, anaerobic digestion, and other
retrofits to existing technologies. EPA considered all these technologies for identification of
"best available technologies" under the various options for BAT described in Section VIE.
EPA used soil sample information compiled by researchers at various land grant
universities to determine areas of phosphorus and nitrogen saturation, as described in the
Development Document. This information provides the basis for EPA's assumptions of which
facilities would need to apply manure nutrients on a phosphorus- or nitrogen-based standard.
EPA's cost models also take into account other production factors, including climate and
farmland geography, land application and waste management practices and other major
production practices typically found in the key producing regions of the country. Model facilities
reflect major production practices used by larger confined animal farms, generally those with
more than 300 AU. Therefore, the models do not reflect pasture and grazing type farms, nor do
they reflect typical costs to small farms. EPA's cost models also take into account practices
required under existing state regulations and reflect cost differences within sectors depending on
manure composition, bedding use, and process water volumes. More information on the
development of EPA's cost models is provided in the Development Document.
To estimate aggregate incremental costs to the CAFO industry from implementing a
particular technology option, EPA first estimated the total cost to a model facility to employ a
given technology, including the full range of necessary capital, annual, start-up, and recurring
costs. Additional detailed information on the baseline and compliance costs attributed to model
CAFOs across all sectors and across all the technology options considered by EPA is provided in
the Development Document.
After estimating the total cost to an individual facility to employ a given technology, EPA
then weighted the average facility level cost to account for current use of the technology or
management practice nationwide. This is done by multiplying the total cost of a particular
273
-------
technology or practice by the percent of operations that are believed to use this particular
technology or practice in order to derive the average expected cost that could be incurred by a
model CAFO. EPA refers to this adjustment factor as the "frequency factor" and has developed
such a factor for each individual cost (i.e. each technology) and cost component (i.e. capital and
annual costs) in each of its CAFO models. The frequency factor reflects the percentage of
facilities that .are, technically, already in compliance with a given regulatory option since they
already employ technologies or practices that are protective of the environment. The frequency
factor also accounts for compliance with existing federal and state regulatory requirements as
well as the extent to which an animal sector has already adopted or established management
practices to control discharges.
EPA developed its frequency factors based on data and information from USDA's NRCS
and NAHMS, state agricultural extension agencies, industry trade groups and industry-sponsored
surveys, academic literature, and EPA's farm site visits. More detailed information on how EPA
developed and applied these weighting factors is provided in the Development Document. To
identify where farm level costs may be masked by this weighting approach, EPA evaluated costs
with and without frequency factors. The results of this sensitivity analysis indicate that the
model CAFO costs used to estimate aggregate costs and impacts, as presented in this preamble,
are stable across a range of possible frequency factor assumptions.
The data and information used to develop EPA's model CAFOs were compiled with the
assistance of USDA, in combination with other information collected by EPA from extensive
literature searches, more than 100 farm site visits, and numerous consultations with industry,
universities, and agricultural extension agencies. Additional detailed information on the data and
assumptions used to develop EPA's model CAFOs that were used to estimate aggregate
incremental costs to the CAFO industry is provided in the Development Document.
b. Compliance Costs to Recipients of CAFO Manure
To calculate the cost to offsite recipients of CAFO manure under the proposed regulations,
EPA builds upon the cropland availability information in the CAFO models, focusing on the two
categories of farms that have excess manure nutrients and that need to haul manure offsite for
alternative use or to be spread as fertilizer (i.e., Category 2 and Category 3 CAFOs, where
facilities are assumed to have insufficient or no available cropland to land apply nutrients,
respectively). EPA also uses this information to determine the number of offsite recipients
affected under select regulatory alternatives, shown in Tables 10-3 and 10-4.
USDA defines farm level "excess" of manure nutrients on a confined livestock farm as
manure nutrient production less crop assimilative capacity. USDA has estimated manure nutrient
production using the number of animals by species, standard manure production per animal unit,
and nutrient composition of each type of manure. Recoverable manure is the amount that can be
collected and disposed by spreading on fields or transporting off the producing farm.
274
-------
Depending on the nutrient used to determine the rate of manure application (nitrogen or
phosphorus), EPA estimates that approximately 7,500 to 10,000 CAFOs with more than 300 AU
are expected to generate excess manure. This includes about 2,600 animal feeding operations
that have no major crop or pasture land. These estimates were derived from a USDA analysis of
manure nutrients relative to the capacity of cropland and pastureland to assimilate nutrients.
EPA's estimate does not account for excess manure that is already disposed of via alternative
uses such as pelletizing or incineration.
For the purpose of this analysis, EPA assumes that affected offsite facilities are field crop
producers who use CAFO manure as a fertilizer substitute. Information on crop producers that
currently receive animal manure for use as a fertilizer substitute is not available. Instead, EPA
approximates the number of operations that receive CAFO manure and may be subject to the
proposed regulations based on the number of acres that would be required to land apply manure
nutrients generated by Category 2 and Category 3 CAFOs. EPA assumes that offsite recipients
will only accept manure when soil conditions allow for application on a nitrogen basis.
Therefore, the manure application rate at offsite acres in a given region is the nitrogen-based
application rate for the typical crop rotation and yields obtained in that region. EPA then
estimates the number of farms that receive CAFO manure by dividing the acres needed to
assimilate excess manure nitrogen by the national average farm size of 487 acres, based on
USDA data. The results of this analysis indicate that 18,000 to 21,000 offsite recipients would
receive excess CAFO manure.
The costs assessed to manure recipients include the costs of soil testing and incremental
recordkeeping. EPA evaluated these costs using the approach described in Section X.C.2(a).
Excess manure hauling costs are already included in costs assessed to CAFOs with excess
manure. For the purpose of this analysis, EPA has assumed that crop farmers already maintain
records documenting crop yields, crop rotations, and fertilizer application, and that crop farmers
already have some form of nutrient management plan for determining crop nutrient requirements.
EPA estimates, on average, per-farm incremental costs of approximately $540 to non-CAFOs for
complying with the offsite certification requirements. This analysis is provided in the
Development Document.
3. Cost Annualization Methodology
As part of EPA's costing analysis, EPA converts the capital costs that are estimated to be
incurred by a CAFO to comply with the proposed requirements, described in Section X.C.2, to
incremental annualized costs. Annualized costs better describe the actual compliance costs that a
model CAFO would incur, allowing for the effects of interest, depreciation, and taxes. EPA uses
these annualized costs to estimate the total annual compliance costs and to assess the economic
impacts of the proposed requirements to regulated CAFOs that are presented in Sections X.E and
X.F.
Additional information on the approach used to annualize the incremental compliance
costs developed by EPA is provided in Appendix A of the Economic Analysis. EPA uses a 10-
275
-------
year recovery period of depreciable property based on the Internal Revenue Code's guidance for
single purpose agricultural or horticultural structures. The Internal Revenue Service defines a
single purpose agricultural structure as any enclosure or structure specifically designed,
constructed and used for housing, raising, and feeding a particular kind of livestock, including
structures to contain produce or equipment necessary for housing, raising, and feeding of
livestock. The method EPA uses to depreciate capital investments is the Modified Accelerated
Cost Recovery System (MACRS).
EPA assumes a real private discount/interest rate of 7 percent, as recommended by the
Office of Management and Budget. EPA also assumes standard federal and average state tax
rates across the broad facility size categories to determine an operation's tax benefit or tax shield,
which is assumed as an allowance to offset taxable income.
D. Method for Estimating Economic Impacts
To estimate economic impacts under the proposed regulations, EPA examined the impacts
across three industry segments: regulated CAFOs, processors, and national markets.
1. CAFO Analysis
EPA estimates the economic impacts of today's proposed regulations using a
representative farm approach. A representative farm approach is consistent with past research
that USDA and many land grant universities have conducted to assess a wide range of policy
issues, including environmental legislation pertaining to animal agriculture. A representative
farm approach provides a means to assess average impacts across numerous facilities by
grouping facilities into broader categories to account for the multitude of differences among
animal confinement operations. Information on how EPA developed its model CAFOs is
available in the Economic Analysis. Additional information on EPA's cost models is provided in
the Development Document. At various stages in the proposed rulemaking, EPA presented its
proposed methodological approach to USDA personnel and to researchers at various land grant
universities for informal review and feedback.
Using a representative farm approach, EPA constructed a series of model facilities that
reflect the EPA's estimated compliance costs and available financial data. EPA uses these model
CAFOs to develop an average characterization for a group of operations. EPA's cost models
were described earlier in Section X.C.2(a). From these models, EPA estimates total annualized
compliance costs by aggregating the average facility costs across all operations that are identified
for a representative group. EPA's cost models are compared to corresponding model CAFOs
that characterize financial conditions across differently sized, differently managed, and
geographically distinct operations. As with EPA's cost models, EPA's financial models are
grouped according to certain distinguishing characteristics for each sector, such as facility size
and production region, that may be shared across a broad range of facilities. Economic impacts
under a post-regulatory scenario are approximated by extrapolating the average impacts for a
276
-------
given model CAFO across the larger number of operations that share similar production
characteristics and are identified by that CAFO model.
EPA compares its estimated compliance costs at select model CAFOs to corresponding
financial conditions at these model facilities. For this analysis, EPA focuses on three financial
measures that are used to assess the affordability of the proposed CAFO regulations. These
include total gross revenue, net cash income, and debt-to-asset ratio. Financial data used by EPA
to develop its financial models are from the 1997 ARMS data summaries prepared by ERS and
form the basis for the financial characterization of the model CAFOs. To account for changes in
an operation's income under post-compliance conditions, EPA estimated the present value of
projected facility earnings, measured as a future cash flow stream. The present value of cash
flow represents the value in terms of today's dollars of a series of future receipts. EPA calculated
baseline cash flow as the present value of a 10-year stream of an operation's cash flow. EPA
projected future earnings from the 1997 baseline using USDA's Agricultural Baseline
Projections data. Section 4 of the Economic Analysis provides additional information on the
baseline financial conditions attributed to EPA's model CAFO across all sectors as well as
information on the data and assumptions used to develop these models.
EPA evaluates the economic achievability of the proposed requirements based on changes
in representative financial conditions for select criteria, as described in Section XJF.l. For some
sectors, EPA evaluates economic impacts at model CAFOs under varying scenarios of cost
passthrough between the CAFO and the latter stages in the food marketing chain, such as the
processing and retail sectors. These three scenarios include: zero cost passthrough, full (100
percent) cost passthrough, and partial cost passthrough (greater than zero). Partial cost
passthrough values used for this analysis vary by sector and are based on estimates of price
elasticity of supply and demand reported in the academic literature. This information is available
in the docket.
Table 10-1 lists the range of annualized compliance costs developed for EPA's analysis.
Annualized costs for each sector are summarized across the estimated range of minimum and
maximum costs across all facility sizes and production regions and are broken out by land use
category (described in Section X.C.2). In some cases, "maximum" costs reflect average costs for
a representative facility that has a large number of animals on-site; EPA's cost models for very
large CAFOs are intended to approximate the average unit costs at the very largest animal
feeding operations. More detailed annualized costs broken out by production region, land use
category, and broad facility size groupings are provided in the Economic Analysis.
Estimated annualized costs shown in Table 10-1 are presented in 1999 dollars (post-tax).
All costs presented in today's preamble have been converted using the Construction Cost Index
to 1999 dollars from the 1997 dollar estimates that are presented throughout the Development
Document and the Economic Analysis. As shown in the table, costs for Category 3 CAFOs may
be lower than those for Category 1 CAFOs since facilities without any land do not incur any
additional incremental costs related to hauling. EPA has assumed that these operations are
277
-------
already hauling off-site in order to comply with existing requirements. More detailed cost
estimates for individual technologies are provided in the Development Document.
To assess the impact of the regulations on offsite recipients of CAFO manure, EPA
compares the estimated cost of this requirement to both aggregate and average per farm
production costs and revenues (a sales test). This analysis uses EPA's estimated compliance
costs and 1997 aggregate farm revenues and production costs reported by USDA. For the
purpose of this analysis, EPA assumes that these costs will be incurred by non-CAFO farming
operations (i.e., crop producers) that use animal manures as a fertilizer substitute and will not be
bome by CAFOs.
Table 10-1: Range of Anmialjzed Model CAFO Compliance Costs ($1999, post-tax)
Sector
Beef
Veal
Heifers
)airy
HogstGF*
Hogs: FF »
Jroilers
Bayers: wet v
Layers: dry *
"urkevs
Category 1 "
Minimum
Maximum
Category 2 v
Minimum
Maximum
Category 3 v
Minimum
Maximum
(1999 dollars per model CAFO across all size groups)
$2,100
$1,500
$1,700
$5,200
$300
$300
$4,800
$300
$1,500
$4.900
$986,000
$8,100
$16,900
$44,600
$52,300
$82,900
$36,300
$24,800
$59,000
$111,900
$8,500
$1,100
$2,000
$14,700
$5,500
$8,800
$4,400
$2,100
$1,400
$4,800
$1,219,800
$6,100
$17,900
$67,700
$63,500
$100,600
$25,800
$29,300
$31,700
$29,500
$1,000
$1,000
$1,200
$4,200
$11,400
$10,000
$3,900
$1,500
$1,200
$3,800
$896,7(X
$6,000
$11,7(X
$40,30(
$81,50(
$115,50(
$21,4(X
$18,1(K
$27,600
$20,80(
Source: EPA.
" Category 1 CAFOs have sufficient cropland for all on-farm nutrients generated; Category 2 CAFOs have
insufficient cropland; and Category 3 CAFOs have no cropland.
* "Hogs: FF" are farrow-finish (includes breeder and nursery pigs); "Hogs: GF' are grower-finish only.
3' "Layers: wet" are operations with liquid manure systems; "Layers: dry" are operations with dry systems.
2. Processor Analysis
As discussed in Section VI, EPA estimates that 94 meat packing plants that slaughter hogs
and 270 poultry processing facilities may be subject to the proposed co-permitting requirements
(Section VI). Given the structure of the beef and dairy sectors and the nature of their contract
relationships, EPA expects that no meat packing or processing facilities in these sectors will be
subject to the proposed co-permitting requirements. EPA bases these assumptions on data from
the Department of Commerce on the number of slaughtering and meat packing facilities in these
278
-------
sectors and information from USDA on the degree of animal ownership at U.S. farms, as
described in Section VI of this document. Additional information is provided in Section 2 of the
Economic Analysis. EPA is seeking comment on this assumption as part of today's notice.
EPA did not conduct a detailed estimate of the costs and impacts that would accrue to
individual co-permittees. Information on contractual relationships between contract growers and
processing firms is proprietary and EPA does not have the necessary market information and data
to conduct such an analysis. Market information is not available on the number and location of
firms that contract out the raising of animals to CAFOs or on the number and location of contract
growers, and the share of production, that raise animals under a production contract. Li addition,
EPA does not have data on the exact terms of the contractual agreements between processors and
CAFOs to assess when a processor would be subject to the proposed co-permitting requirements,
and EPA does not have financial data for processing firms or contract growers that utilize
production contracts.
EPA, however, believes that the framework used to estimate costs to CAFOs does provide
a means to evaluate the possible upper bound of costs that could accrue to processing facilities in
those industries where production contracts are more widely utilized and where EPA believes the
proposed co-permitting requirements may affect processors. EPA's CAFO level analysis
examines the potential share of (pre-tax) costs that may be passed on from the CAFO, based on
market information for each sector. Assuming that a share of the costs that accrue to the CAFO
are eventually borne by processors, EPA is proposing that this amount approximates the
magnitude of the costs that may be incurred by processing firms in those industries that may be
affected by the proposed co-permitting requirements. EPA solicits comment on this approach.
To assess the impact of the regulations on processors, EPA compares the passed through
compliance costs to both aggregate processor costs of production and to revenues (a sales test).
These analyses use estimated compliance costs, cost passthrough estimates, and aggregate
revenues and production costs by processing sector. National processor cost and revenue data are
from the U.S. Department of Commerce's Census of Manufacturers data series. For some
sectors, EPA evaluates the impact of the proposed regulations on processors under two scenarios
of cost passthrough from the animal production sectors (described in Section X.D.1), including
full cost and partial cost passthrough. More detail on this approach is provided in Section 4 of
the Economic Analysis.
This suggested approach does not assume any addition to the total costs of the rule as a
result of co-permitting. This approach also does not assume that there will be a cost savings to
contract growers as result of a contractual arrangement with a processing firm. This approach
merely attempts to quantify the potential magnitude of costs that could accrue to processors that
may be affected by the co-permitting requirements. Due to lack of information and data, EPA
has not analyzed the effect of relative market power between the contract grower and the
integrator on the distribution of costs, nor the potential for additional costs to be imposed by the
integrator's need to take steps to protect itself against liability and perhaps to indemnify itself
against such liability through its production contracts. EPA has also not specifically analyzed the
279
-------
environmental effects of co-permitting. EPA has conducted an extensive review of the
agricultural literature on market power in each of the livestock and poultry sectors and concluded
that there is little evidence to suggest that increased production costs would be prevented from
being passed on through the market levels. This information is provided in the rulemaking
record. However, as discussed in Section VE.C.5, EPA recognizes that some industry
representatives do not support these assumptions of cost passthrough from contract producers to
integrators and requests comments on its cost passthrough assumptions, both in general and as
they relate to the analysis of processor level impacts under the proposed co-permitting
requirements.
EPA's processor analysis does not explicitly account for the few large corporate
operations that are vertically integrated, to the extent that the corporation owns and operates all
aspects of the operation, from animal production to final consumer product. These operations are
covered by EPA's CAFO analysis to the extent that they are captured by USDA's farm survey
and are included among EPA's model CAFOs. While the ARMS data may include information
on CAFOs that are owned by corporate operations, these data cannot be broken out to create a
model specifically designed to represent these operations. Since EPA's analysis uses farm
financial data and not corporate data, this analysis does not reflect the ability of corporations to
absorb compliance costs that may be incurred at CAFOs that are owned by that entity. EPA
expects that its analysis overestimates the impact to corporate entities since revenues of corporate
entities are, in most cases, no less than and are likely to exceed those at a privately-owned and
operated CAFOs.
3. Market Analysis
EPA's market analysis evaluates the effects of the proposed regulations on national
markets. This analysis uses a linear partial equilibrium model adapted from the COSTBEN
model developed by USDA's Economic Research Service. The modified EPA model provides a
means to conduct a long-run static analysis to measure the market effects of the proposed
regulations in terms of predicted changes in farm and retail prices and product quantities. Market
data used as inputs to this model are from a wide range of USDA data and land grant university
research. EPA consulted researchers from USDA and the land grant universities in the
development of this modeling framework. The details of this model are described in Appendix B
of the Economic Analysis.
Once price and quantity changes are predicted by the model, EPA uses national multipliers
that relate changes in sales to changes in total direct and indirect employment and also to national
economic output. These estimated relationships are based on the Regional Input-Output
Modeling System (RMS II) from the U.S. Department of Commerce. This approach is
described in Section 4 of the Economic Analysis.
E. Estimated Annual Costs of the Proposed Regulatory Options/Scenarios
280
-------
As discussed in Section VU and VHI, EPA considered various technology options and also
different scope scenarios as part of the development of today's proposed regulations. A summary
overview of the ELG options and NPDES scenarios is provided in Table 10-2. More detail is
available in Sections VII and VHI of today's preamble.
Table 10-2. Summary Description of Options/Scenarios Considered by EPA
Technology Options (ELG)
Option 1:
Option 2
Option 3 BAT
(Beef/Heifers/Dairy)
Option 4
Option 5 BAT
(Swine/Poultry/Veal)
Option 6
Option 7
N-based land application controls and inspection and recordkeeping
requirements for the production area (described in Section VHI.C.3)
Same as Option 1, but restricts the rate of manure application to a P-based
rate where necessary (depending on specific soil conditions at the CARD)
Adds to Option 2 by requiring all operations to determine whether the
groundwater beneath the production area has a direct hydrologic connection
to surface water; if so, requires groundwater monitoring and controls
Adds to Option 3 by requiring sampling of surface waters adjacent to
production area and/or land under control of the CAPO to which manure is
applied
Adds to Option 2 by establishing a zero discharge requirement from the
production area that does not allow for an overflow under any circumstances
Adds to Option 2 by requiring that large hog and dairy operations install and
implement anaerobic digestion and gas combustion to treat their manure
Adds to Option 2 by prohibiting manure application to frozen, snow covered
or saturated ground
Regulatory Scope Options (NPDES)
Scenario 1
Scenario 2
Scenario 3
"Three-Tier"
Scenario 4a
"Two-Tier" (500 AU)
Scenario 4b
Scenario 5
"Two-Tier" (750 AU)
Retains existing 3-tier framework and establishes additional requirements
(described in Section VEC.2)
Same as Scenario I ; operations widi 300-1,000 AU would be subject to the
regulations based on certain "risk-based" conditions (described in VE.C.S.b)
Same as Scenario 2, but allows operations with 300-1,000 AU to either
apply for a NPDES permit or to certify to the permit authority that they do
not meet any of the conditions and thus are not required to obtain a permit
Establishes 2-tier framework and applies ELG standard to all operations
with more than 500 AU
Establishes 2-tier framework and applies ELG standard to all operations
with more than 300 AU
Establishes 2-tier framework and applies ELG standard to all operations
with more than 750 AU
281
-------
Scenario 6
Retains existing 3-tier framework and establishes a simplified certification
process (described in Section VEC.2)
The "BAT Option" refers to EPA's proposal to require nitrogen-based and, where
necessary, phosphorus-based land application controls of all livestock and poultry CAFOs
(Option 2), with the additional requirement that all cattle and dairy operations must conduct
groundwater monitoring and implement controls, if the groundwater beneath the production area
has a direct hydrologic connection to surface water (Option 3 BAT), and with the additional
requirement that all hog, veal, and poultry CAFOs must also achieve zero discharge from the
animal production area with no exception for storm events (Option 5 BAT). For reasons outlined
in Section Vin, EPA is not proposing that beef and dairy CAFOs meet the additional.
requirements under Option 5 or that hog and poultry CAFOs meet the additional requirements
under Option 3. Section VEQ discusses EPA's basis for the selection of these technology bases
for the affected subcateogries.
EPA is jointly proposing two NPDES Scenarios that differ in terms of the manner in
which operations are defined as a CAFO. Scenario 4a is to the two-tier alternative that defines as
CAFOs all animal feeding operations with more than 500 AU (alternatively, Scenario 5 is the
two-tier alternative that defines all animal feeding operations with more than 750 AU as
CAFOs).
Scenario 3 is three-tier structure that defines as CAFOs all animal feeding operations with more
than 1,000 AU and any operation with more than 300 AU, if they meet certain "risk-based"
conditions, as defined in Section VII. Under Scenario 3, EPA would require all confinement
operations with between 300 and 1,000 AU to either apply for a NPDES permit or to certify to
the permit authority that they do not meet certain conditions and thus are not required to obtain a
permit.
For the purpose of this discussion, the "two-tier structure " refers to the combination of
BAT Option 3 (beef and dairy subcategories) and BAT Option 5 (swine and poultry
subcategories), and NPDES Scenario 4a that covers all operations with more than 500 AU.
Where indicated, the two-tier structure may refer to the alternative threshold at 750 AU. The
"three-tier structure" refers to the combination of ELG Option 3 (beef and dairy subcategories)
and Option 5 (swine and poultry subcategories), and NPDES Scenario 3 that covers operations
down to 300 AU based on certain conditions. More detail of the technology options considered
by EPA is provided in Section VOL Section VII of this preamble provides additional information
on the alternative scope scenarios considered by EPA. EPA did not evaluate costs and economic
impacts under the alternative three-tier structure that combines the BAT Option with Scenario 6,
as described in Table 10-2.
Under the two-tier structure, EPA estimate that 25,540 CAFOs with more than 500 AU
may be defined as CAFOs and subject to the proposed regulations. EPA estimates that 19,100
CAFOs may be defined as CAFOs under the alternative two-tier threshold of 750 AU. Under the
three-tier structure, an estimated 31,930 CAFOs would be defined as CAFOs (Table 6-2) and an
282
-------
additional 7,400 operations in the 300 to 1,000 AU size range would need to certify that they do
not need to apply for a permit. This total estimate counts operations with more than a single
animal type only once. EPA's analysis computes total compliance costs based on the total
number of CAFOs in each sector, including mixed operations that have more than 300 or 500
AU of at least one animal type. This approach avoids understating costs at operations with more
than one animal type that may incur costs to comply with the proposed requirements for each
type of animal that is raised on-site that meets the size threshold for a CAFO or is designated as a
CAFO by the permitting authority. Therefore, EPA's compliance costs estimates likely represent
the upper bound since costs at facilities with more than a single animal type may, in some cases,
be lower due to shared production technologies and practices across all animal types that are
produced on-site. '
1. Costs to CAFOs under the Proposed Regulations
Tables 10-3 and 10-4 summarize the total annualized compliance costs to CAFOs
attributed to the proposed two-tier structure and three-tier structure. The table shows these costs
broken out by sector and by broad facility size group. EPA calculated all estimated costs using
the data, methodology and assumptions described in Sections X.B and X.C.
Under the two-tier structure, EPA estimates that the incremental annualized compliance
cost to CAFO operators would be approximately $831 million annually (Table 10-3). Table 10-5
shows estimated costs for the two-tier structure at the 750 AU threshold, estimated by EPA to
total $721 million annually. Most of this cost (roughly 70 percent) is incurred by CAFOs with
more than 1,000 AU. Overall, about one-third of all estimated compliance costs are incurred
within the hog sectors.
Under the three-tier structure, EPA estimates that the total cost to CAFO operators would
be $925 million annually (Table 10-4). These costs are expressed in terms of pre-tax 1999
dollars. (Post-tax costs of are estimated at $573 million and $635 million annually, respectively,
and include tax savings to CAFOs. EPA uses estimated post-tax costs to evaluate impacts to
regulated facilities, discussed in Section X.F) Estimated total annualized costs for the three-tier
structure include the cost to permitted CAFOs as well as the estimated cost to operations to
certify to the permit authority that they do not meet any of the conditions and are thus are not
required to obtain a permit. EPA estimates certification costs at about $80 million annually,
which covers phosphorus-based PNP costs, facility upgrades, and letters of certification from
manure recipient. More information on these costs and how they are calculated is provided in
Section 5 of the Economic Analysis.
Estimated total annualized costs shown in Table 10-3 and 10-4 include costs to animal
confinement operations that may be designated as CAFOs. Total annualized costs to designated
facilities is estimated at less than one million dollars annually (Tables 10-3 and 10-4). As
discussed in Section VI, EPA assumes that designation may bring an additional 50 operations
each year under the two-tier structure; under the three-tier structure, EPA expects that an
additional 10 operations may be designated each year. In this analysis, estimated costs to
283
-------
designated facilities are expressed on an average annual basis over a projected 10-year period.
For the purpose of this analysis, EPA assumes that operations that may be designated as CAFOs
and subject to the proposed regulations will consist of beef, dairy, farrow-finish hog, broiler and
egg laying operations under the two-tier structure. Under the three-tier structure, EPA estimates
that fewer operations would be designated as CAFOs, with 10 dairy and hog operations being
designated each year, or 100 operations over a 10-year period. Additional information is
provided in the Economic Analysis.
Table 10-3. Annual Pre-tax Cost of Two-Tier Structure (BAT Option/Scenario 4a), $1999
Sector
^Operations
(number)*
Total
>1000AU
500- 1000 AU
<500AU1/
($1999, millions, pre-tax)
Regulated CAFOs
Beef
Veal
Heifer
Dairy
Hog
Broiler
Layer
Turkey
Subtotal
3,080
90
800
3,760
8,550
9,780
1,640
1,280
25,540
$216.4
$0.3
$11.6
$177.6
$294.0
$97.1
$14.2
$19.6
$830.7
$191.5
$0.03
$3.7
$108.6
$225.5
$55.4
$9.9
$10.4
$605.0
$24.7
$0.3
$7.9
$65.4
$67.0
$41.6
$4.3
$9.2
$220.2
$0.1
NA
NA
$3.6
$1.5
$0.1
NA
NA
$5.4
Other Farming Operations
Offsite
Recipients
TOTAL
17,923
NA
$9.6
$8403
NA
NA
NA
NA
NA
NA
Source: USEPA. See Economic Analysis. Table 6-2 provides information on affected operations.
Numbers may not add due to rounding. NA = Not Applicable. Option/Scenario definitions provided in Table 10-2.
"Cost estimates shown are for designated CAFOs (see Section VI).
•' "Total" adjusts for operations with more than a single animal type. The number of CAFOs shown includes
expected defined CAFOs only and excludes designated facilities.
Table 10-4. Annual Pre-tax Cost of Three-Tier Structure (BAT Option/Scenario 3), $1999
Sector
^Operations
(number)1'
Total
>1000AU
300- 1000 AU
OOOAU"
($1999, millions, pre-tax)
Regulated CAFOs
Beef
Veal
Heifer
Dairv
3,210
140
980
6,480
$227.7
$0.8
$14.4
$224.6
$191.5
$0.03
$3.7
$108.6
$36.2
$0.8
$10.7
$115.3
$0.0
$0.0
$0.0
$0.7
284
-------
Hog
Broiler
Layer
Turkev
Subtotal
8,350
13,740
2,010
2,060
31,930
$306.1
$116.6
$15.3
$24.9
$930.4
$225.5
$55.4
$9.9
$10.4
$605.0
$80.4
$61.2
$5.4
$14.5
$324.5
$0.2
$0.0
$0.0
$0.0
$0.8
Other Farming Operations
Offslte
Recipients
Total
21,155
NA
$113
$936.7
NA
NA
NA
NA
NA
NA
Source: USEPA. See Economic Analysis. Table 6-2 provides information on affected operations.
Numbers may not add due to rounding. NA = Not Applicable. Option/Scenario definitions provided in Table 10-2.
"Cost estimates shown are for designated CAFOs (see Section VI).
* "Total" adjusts for operations with more than a single animal type. The number of CAFOs shown includes
expected defined CAFOs only and excludes designated facilities.
2. Costs to CAFOs of Alternative Regulatory Options and Scenarios
Alternative regulatory options considered by EPA during the development of today's
proposed regulations include various technology options and also different regulatory scope
scenarios. Sections Vn and Vm present the Agency's rationale for each regulatory decision.
Table 10-5 summarizes the total annualized (pre-tax) costs of alternative technology
options for each NPDES scenario and ELG technology basis considered by EPA. As shown in
the table, the total estimated costs across these options range from $355 million (Option
I/Scenario 1) to $1.7 billion annually (Option 5, applicable to all the animal sectors, and
Scenario 4b). By scenario, this reflects the fact that fewer CAFOs would be affected under
Scenario 1 (a total of about 16,400 operations) as compared to Scenario 4b (about 39,300
operations affected). As noted in Section X.E, EPA's estimate of the number of CAFOs and
corresponding compliance costs does not adjust for operations with mixed animal types and may
be overstated. By technology option, with the exception of Options 1 and 4, costs are evaluated
incremental to Option 2 (see Table 10-2). Compared to Option 2, Option 5 costs are greatest.
Additional breakout of these costs by sector are provided in the Economic Analysis.
Table 10-5. Annualized Pre-tax Costs for the Alternative NPDES Scenarios ($1999, minion)
Option/
Scenario
#CAFOs"
Option 1
Option 2
Scenario 4a
"Two-Tier"
25,540
$432.1
$548.8
Scenario 2/3
"Three-Tier*'
28,860
$462.8
$582.8
Scenario 1
16,420
$354.6
$444.4
Scenario S
>750AU
25,770
$384.3
$484.0
Scenario 4b
>300AU
39320
$493.6
$633.3
285
-------
Option 3
Option 4
Option 5
Option 6
Option 7
BAT Option
$746.7
$903.9
$1,515.9
$621.6
$671.3
$830.7
$854.1
$1,088.2
$1,632.9
$736.9
$781.9
$925.1
$587.0
$707.0
$1,340.9
$501.5
$542.4
$6803
$649.5
$768.0
$1,390.4
$541.3
$585.1
$720.8
$883.6
$1,121.2
$1,671.3
$706.6
$756.6
$979.6
Source: USEPA. See Economic Analysis. Cost estimates shown include costs to designated operations.
Numbers may not add due to rounding. NA = Not Applicable. Option/Scenario definitions provided in Table 10-2.
""Total" adjusts for operations with more than a single animal type. The number of CAFOs shown includes
expected defined CAFOs only and excludes designated facilities.
3. Costs to Offsite Recipients of CAFO Manure under the Proposed Regulations
As described in Section VII, EPA is proposing that offsite recipients of CAFO manure
certify to the CAFO that manure will be land applied in accordance with proper agriculture
practices. As shown in Table 10-3, EPA estimates that 18,000 non-CAFO farming operations
will receive manure and therefore be required to certify proper manure utilization under the
proposed two-tier structure. Under the alternative three-tier structure, up to 3,000 additional
fanning operations may be affected. EPA's analysis assumes that affected CAFO manure
recipients are mostly field crop producers who use CAFO manure as a fertilizer substitute.
EPA's analysis does not reflect manure hauled offsite for alternative uses such as incineration or
pelletizing. EPA estimates the annualized cost of this requirement to offsite recipients to be $9.6
to $11.3 million across the co-proposed alternatives (Tables 10-3 and 10-4). This analysis is
provided in the Development Document.
Estimated costs to recipients of CAFO manure include incremental recordkeeping and soil
tests every 3 years. Conservation Technology Information Center (CTIC) Core 4 survey data
suggest an average of 46 percent crop farmers regularly sample their soil. EPA believes crop
farmers already maintain records pertaining to crop yields, nutrient requirements, and fertilizer
applications. EPA also assumed that crop farmers have a nutrient management plan, though the
plan is not necessarily a PNP (Permit Nutrient Plan) or CNMP (Comprehensive Nutrient
Management Plan). EPA has evaluated alternative approaches to ensuring that manure is
handled properly, but is not proposing to establish specific requirements for offsite recipients.
The costs to offsite recipients do not include the costs of spreading manure at the offsite location
or any additional payments made to brokers or manure recipients in counties with excess manure.
These costs are likely to be offset by the fertilizer savings and organic value associated with
manure. EPA's analysis accounts for the costs incurred by the CAFO for offsite transfer of
excess manure in the estimated industry compliance costs, described in Section X.E.I. These
costs include the cost of soil and manure sampling at the CAFO site, training for manure
applicators, application equipment calibration, and the hauling cost of excess manure generated
by the CAFO.
286
-------
Under the proposed regulations, CAFOs would be required to apply manure on a
phosphorus basis where necessary, based on soil conditions, and on a nitrogen basis elsewhere.
EPA anticipates that offsite recipients of CAFO manure will only accept manure when soil
conditions allow for application on a nitrogen basis. EPA believes this is a reasonable
assumption because crop farms are less likely to have a phosphorus buildup associated with long
term application of manure. EPA's analysis assumes a nitrogen-based application rate for offsite
locations that is identical to the rate used by CAFOs in the same geographic region. A summary
of the data and methodology used by EPA to calculate the number of affected offsite recipients
and to estimate costs is presented in Section X.C.2(b). EPA solicits comment on the costs and
assumptions pertaining to offsite recipients.
F. Estimated Economic Impacts of the Proposed Regulatory Options/Scenarios
This section provides an overview of EPA's estimated economic impacts across four
industry segments that are included for this analysis: CAFOs (both existing and new sources),
non-CAFO recipients of manure, processors, and consumer markets. More detailed information
on each of these analyses is available in the Economic Analysis.
I. CAFO Level Analysis
This section presents EPA's analysis of financial impacts to both existing and new CAFOs
that will be affected by the proposed regulations, as well as impacts to offsite recipients of CAFO
manure who will also be required to comply with the proposed PNP requirements.
a. Economic Impacts to Existing CAFOs under the Proposed Regulations
As discussed in Section X.C.I, EPA's CAFO level analysis examines compliance cost
impacts for a representative "model CAFO." EPA evaluates the economic achievability of the
proposed regulatory options at existing animal feeding operations based on changes in
representative financial conditions across three criteria. These criteria are: a comparison of
incremental costs to total revenue (sales test), projected post-compliance cash flow over a 10-
year period, and an assessment of an operation's debt-to-asset ratio under a post-compliance
scenario. To evaluate economic impacts to CAFOs in some sectors, impacts are evaluated two
ways—assuming that a portion of the costs may be passed on from the CAFO to the consumer
and assuming that no costs passthrough so that all costs are absorbed by the CAFO.
EPA used the financial criteria to divide the impacts of the proposed regulations into three
impact categories. The first category is the affordable category, which means that the regulations
have little or no financial impact on CAFO operations. The second category is the moderate
impact category, which means that the regulations will have some financial impact on operations
at the affected CAFOs, but EPA does not consider these operations to be vulnerable to closure as
a result of compliance. The third category is the financial stress category, which means that EPA
287
-------
considers these operations to be vulnerable to closure post-compliance. More information on
these criteria is provided in Section 4 of the Economic Analysis.
The basis for EPA's economic achievability criteria for this rulemaking is as follows.
USDA's financial classification of U.S. farms identifies an operation with negative income and a
debt-asset ratio in excess of 40 percent as "vulnerable." An operation with positive income and a
debt-asset ratio of less than 40 percent is considered "favorable." EPA adopted this classification
scheme as part of its economic achievability criteria, using net cash flow to represent income.
This threshold and cash flow criterion is established by USDA and other land grant universities,
as further described in Section 4 of the Economic Analysis, The threshold values used for the
cost-to-sales test (3 percent, 5 percent and 10 percent) are those determined by EPA to be
appropriate for this rulemaking and are consistent with threshold levels used by EPA to measure
impacts of regulations for other point source dischargers (as also documented in the Economic
Analysis).
For this analysis, EPA's determination of economic achievability used all three criteria.
EPA considered the proposed regulations to be economically achievable for a representative
model CAPO if the average operation has a post-compliance sales test estimate within an
acceptable range, positive post-compliance cash flow over a 10-year period, and a post-
compliance debt-to-asset ratio not exceeding 40 percent. If the sales test shows that compliance
costs are less than 3 percent of sales, or if post-compliance cash flow is positive and the post-
compliance debt-to-asset ratio does not exceed 40 percent and compliance costs are less than 5
percent of sales, EPA considers the options to be "Affordable" for the representative CAFO
group. A sales test of greater than 5 percent but less than 10 percent of sales with positive cash
flow and a debt-to-asset ratio of less than 40 percent is considered indicative of some impact at
the CAFO level, but at levels not as severe as those indicative of financial distress or
vulnerability to closure. These impacts are labeled "Moderate" for the representative CAFO
group. EPA considers both the "Affordable" and "Moderate" impact categories to be
economically achievable by the CAFO.
If (with a sales test of greater than 3 percent) post-compliance cash flow is negative or the
post-compliance debt-to-asset ratio exceeds 40 percent, or if the sales test shows costs equal to or
exceeding 10 percent of sales, the proposed regulations are estimated to be associated with
potential financial stress for the entire representative CAFO group. In such cases, each of the
operations represented by that group may be vulnerable to closure. These impacts are labeled as
"Stress." EPA considers the "Stress" impact category to indicate that the proposed requirements
may not be economically achievable by the CAFO, subject to other considerations.
Tables 10-6 and 10-7 present the estimated CAFO level impacts in terms of the number of
operations that fall within the affordable, moderate, or stress impact categories for each of the co-
proposed alternatives by sector and facility size group. For some sectors, impacts are shown for
both the zero and the partial cost passthrough assumptions (discussed more fully below). Partial
cost passthrough values vary by sector, as described in Section X.D.I.
288
-------
EPA's costs model analyzes impacts under two sets of conditions for ELG Option 3.
Option 3A assumes that there is a hydrologic connection from groundwater to surface waters at
the CAPO; Option 3 assumes average costs conditions across all operations—both operations
with and without a hydrologic link. Based on available data and information, EPA's analysis
assumes 24 percent of the affected operations have a hydrologic connection to surface waters.
More detail on this assumption may be found in the rulemaking record. EPA solicits comment
on this assumption as part of today's proposed rulemaking.
Based on results shown in Tables 10-6 and 10-7, EPA proposes that the regulatory
alternatives are economically achievable for all representative model CAFOs in the veal, turkey
and egg laying sectors. The proposed requirements under the two-tier structure are also expected
to be economically achievable by all affected heifer operations. Furthermore, although
operations across most sectors may experience moderate impacts, EPA does not expect moderate
financial impacts to result in closure and considers this level of impact to be economically
achievable.
In the beef cattle, heifer, dairy, hog and broiler sectors, however, EPA's analysis indicates
that the proposed regulations will cause some operations to experience financial stress, assuming
no cost passthrough. These operations may be vulnerable to closure by complying with the
proposed regulations. Across all sectors, an estimated 1,890 operations would experience
financial stress under the two-tier structure and an estimated 2,410 operations would experience
stress under the three-tier structure. For both tier structures, EPA estimates that the percentage of
operations that would experience impacts under the stress category represent 7 percent of all
affected CAFOs or 8 percent of all affected operations in the sectors where impacts are estimated
to cause financial stress (cattle, dairy, hog, and broiler sectors).
*
Tables 10-6 shows results for the two-tier structure at the 500 AU threshold. By sector,
EPA estimates that 1,420 hog operations (17 percent of affected hog CAFOs), 320 dairies (9
percent of operations), 150 broiler operations (2 percent), and 10 beef operations (less than 1
percent) would experience financial stress. The broiler and hog operations with these impacts
have more than 1,000 AU on-site (i.e., no operations with between 500 and 1,000 AU fall in the
stress category). The dairy and cattle operations with stress impacts are those that have a ground
water link to surface water. Although not presented here, the results of the two-tier structure at
the 750 AU threshold are very similar in terms of number of operations affected. The results of
this analysis are presented in the Economic Analysis.
Table 10-7 presents results for the three-tier structure, and show that 1,420 hog operations
(17 percent of affected hog CAFOs under that alternative), 610 dairies (9 percent of operations),
330 broiler operations (2 percent), and 50 beef and heifer operations (1 percent) will be adversely
impacted. Hog operations with stress impacts all have more than 1,000 AU. Affected broiler
facilities include operations with more than 1,000 AU, as well as operations with less than 1,000
AU. Dairy and cattle operations in the stress category are operations that have a hydrologic link
from ground water to surface water. Based on these results, EPA is proposing that the proposed
regulations are economically achievable.
289
-------
In the hog and broiler sectors, EPA also evaluated financial impacts with an assumption of
cost passthrough. For the purpose of this analysis, EPA assumes that the hog sector could
passthrough 46 percent of compliance costs and the broiler sector could passthrough 35 percent
of compliance costs. EPA derived these estimates from price elasticities of supply and demand
for each sector reported in the academic literature. More detailed information is provided in
Section 4 and Appendix C of the Economic Analysis. Assuming these levels of cost passthrough
in these sectors, the magnitude of the estimated impacts decreases to the affordable or moderate
impact category. Even in light of the uncertainty of cost passthrough (both in terms of whether
the operations are able to pass cost increases up the marketing chain and the amount of any cost
passthrough), EPA proposes that the proposed regulations will be economically achievable to all
hog and broiler operations.
Although EPA's analysis does not consider cost passthrough among cattle or dairy
operations, EPA does expect that long-run market and structural adjustment by producers in this
sector will diminish the estimated impacts. However, EPA did determine that an evaluation of
economic impacts to dairy producers would require that EPA assume cost passthrough levels in
excess of 50 percent before operations in the financial stress category would, instead, fall into the
affordable or moderate impact category. EPA did not conduct a similar evaluation of estimated
impacts to beef cattle and heifer operations.
EPA believes that the assumptions of cost passthrough are appropriate for the pork and
poultry sectors. As discussed in Section VI, EPA expects that meat packing plants and
slaughtering facilities in the pork and poultry industries may be affected by the proposed co-
permitting requirements in today's proposed regulations. Given the efficiency of integration and
closer producer-processor linkages, the processor has an incentive to ensure a continued
production by contract growers. EPA expects that these operations will be able to pass on a
portion of all incurred compliance costs and will, thus, more easily absorb the costs associated
with today's proposed rule. This passthrough may be achieved either through higher contract
prices or through processor-subsidized centralized off-site or on-site waste treatment and/or
development of marketable uses for manure.
EPA recognizes, however, that some industry representatives do not support assumptions
of cost passthrough from contract producers to integrators, as also noted by many small entity
representatives during the SBREFA outreach process as well as by members of the SBAR Panel.
These commenters have noted that integrators have a bargaining advantage in negotiating
contracts, which may ultimately allow them to force producers to incur all compliance costs as
well as allow them to pass any additional costs down to growers that may be incurred by the
processing firm. To examine this issue, EPA conducted an extensive review of the agricultural
literature on market power in each of the livestock and poultry sectors and concluded that there is
little evidence to suggest that increased production costs would be prevented from being passed
on through the market levels. This information is provided in the rulemaking record. Given the
uncertainty of whether costs will be passed on, EPA's results are presented assuming some
degree of cost passthrough and also no cost passthrough (i.e., the highest level of impacts
projected). EPA requests comment on its cost passthrough assumptions. Although EPA does
290
-------
consider the results of both of these analyses in making its determination of economic
achievability, EPA's overall conclusions do not rely on assumptions of cost passthrough.
Finally, EPA believes its estimated impacts may be overstated since the analysis does not
quantify various cost offsets that are available to most operations. One source of potential cost
offset is cost share and technical assistance available to operators for on-site improvements that
are available from various state and federal programs, such as the Environmental Quality
Incentives Program (EQIP) administered by USDA. Another source of cost offset is revenue
from manure sales, particularly of relatively higher value dry poultry litter. EPA's analysis does
not account for these possible sources of cost offsets because the amount of cost offset is likely
variable among facilities, depending on certain site-specific conditions. If EPA were to quantify
the potential cost offsets as part of its analysis, this would further support EPA's proposed
determination that the proposed requirements are economically achievable to affected operations.
This analysis and additional supporting documentation is provided in Section 6 of the Economic
Analysis.
Appendix D of the Economic Analysis provides results of sensitivity analyses, conducted
by EPA, to examine the impact under differing model assumptions. This analysis examine the
change in the modeling results from varying the baseline assumptions on gross and net cash
income, debt-to-asset ratios as well as other variability factors for model CAFOs. These
sensitivity analyses conclude that the results presented here are stable across a range of possible
modeling assumptions. EPA also conducted sensitivity analysis of the compliance costs
developed for the purpose of estimating CAFO level impacts, as documented in the Development
Document.
Table 10-6. Impacted Operations Under the Two-Tier Structure (BAT Option/Scenario 4a)
Sector
Fed Cattle
Veal
Heifer
Dairy
Hogs: GF "
Hogs: FF "
Broilers v
Numbe
rof
CAFOs
3,080
90
800
3,760
2,690
5,860
9,780
Affordable
Moderat
e
Stress
Zero Cost Passthrough
Affordable
Moderat
e
Stress
Partial Cost Passthrough
(Number of Affected Operations)
A 2,830
90
680
3,240
1,710
5,210
1,960
240
0
120
200
180
30
7,670
10
0
0
320
810
610
150
ND
ND
ND
ND
2,690
5,860
8,610
ND
ND
ND
ND
0
0
1,170
ND
ND
ND
ND
0
0
0
291
-------
Layers -Wet2'
Layers - Dry 2'
Turkeys
Total *
360
1,280
1,280
28,970
360
1,280
1,230
18,580
0
0
50
8,490
0
0
0
1,890
ND
ND
ND
26,840
ND
ND
ND
1,800
ND
ND
ND
330
Source: USEPA. See Economic Analysis. Impact estimates shown include impacts to designated operations.
Numbers may not add due to rounding. ND = Not Determined. Option/Scenario definitions provided in Table 10-
2.
Category definitions ("Affordable," "Moderate" and "Stress") are provided in Section X.F.1.
" "Hogs: FF" are farrow-finish (includes breeder and nursery pigs); "Hogs: GF' are grower-finish only.
v "Layers: wet" are operations with liquid manure systems; "Layers: dry" are operations with dry systems.
v "Total" does not adjust for operations with mixed animal types, for comparison purposes, to avoid understating
costs at operations with more than one animal type that may incur costs to comply with the proposed requirements
for each type of animal that is raised on-site.
Table 10-7. Impacted Operations Under the Three-Tier Structure (BAT Option/Scenario 3)
Sector
Fed Cattle
Veal
Heifer
Dairy
Hogs: GF "
Hogs: FF "
Broilers
Layers -Wet1
Layers - Dry 2>
Turkeys
Total *
Numbe
rof
CAFOs
3,210
140
980
6,480
2,650
5,710
13,740
360
1,660
2,060
37,000
Affordable
Moderat
e
Stress
Zero Cost Passthrough
Affordable
Moderat
e
Stress
Partial Cost Passthrough
(Number of Affected Operations)
2,540
140
800
5,300
1,660
5,070
1,850
360
1,660
1,950
21300
650
0
150
560
190
30
11,560
0
0
110
13,250
20
0
30
610
810
610
330
0
0
0
2,410
ND
ND
ND
ND
2,650
5,710
12,320
ND
ND
ND
33,410
ND
ND
ND
ND
0
0
1,440
ND
ND
ND
2,930
ND
ND
ND
ND
0
0
0
ND
ND
ND
660
Source: USEPA. See Economic Analysis. Impact estimates shown include impacts to designated operations.
Numbers may not add due to rounding. ND = Not Determined. Option/Scenario definitions provided in Table 10-
2. Category definitions ("Affordable," "Moderate" and "Stress") are provided in Section X.F.1.
11 "Hogs: FF" are farrow-finish (includes breeder and nursery pigs); "Hogs: GF" are grower-finish only.
v "Layers: wet" are operations with liquid manure systems; "Layers: dry" are operations with dry systems.
292
-------
v "Total" does not adjust for operations with mixed animal types, for comparison purposes, to avoid understating
costs at operations with more than one animal type that may incur costs to comply with the proposed requirements
for each type of animal that is raised on-site.'
b. Economic Impacts to Existing CAFOs under Alternative Regulatory
Options and Scenarios
Table 10-8 presents estimated financial stress impacts to model CAFOs under alternative
option and scenario combinations, assuming that no costs passthrough. The results shown are
aggregated and combine impacts in the cattle sector (including all beef, veal and heifer
operations), hog sector (including all phases of production), and poultry sector (including all
broiler, egg laying and turkey operations). Results are shown for Scenario 4a (two-tier), Scenario
3 (three-tier), and Scenario 4b. Results are shown for technology Options 1 through 5.
Additional information is available in the Economic Analysis that supports today's rulemaking.
As shown in Table 10-8, the number of potential closures range from 610 operations
(Option 1 in combination with all Scenarios) to more than 14,000 potential closures (Option
4/Scenario 4b). Among options, the number of possible closures are highest under the more
stringent options, including Options 3A (i.e., requires groundwater controls at operations where
there is a determined groundwater hydrologic connection to surface waters), Option 4
(groundwater controls and surface water sampling), and Option 5 (i.e., zero discharge from the
animal production area with no exception for storm events). Differences across scenarios reflects
differences in the number of affected operations; accordingly, the number of closures is greatest
under Scenario 4b that would define as CAFOs all confinement operations with more than 300
AU.
Table 10-8. "Stress" Impacts at CAFOs under Alternative Options/Scenarios
Sector
Number
of
CAFOs
Option 1
Option 2
Option 3
Option
3A"
Option 4
Options
BAT
Option
(Number of Operations)
BAT Option / NPDES Scenario 4a (>500 AU)
Cattle
Dairy
Hogs
Poultry
Total*
3,960
3,760
8,550
12,700
28,970
0
0
610
0
610
0
0
300
150
450
0
0
230
260
490
10
320
310
100
730
0
0
570
6,660
7,230
30
0
1,420
150
1,590
10
320
1,420
150
1,890
BAT Option / NPDES Scenario 4b (>300 AU)
293
-------
Cattle
Dairy
Hogs
Poultry
Total v
5,330
7,140
14,370
18,300
45,140
0
0
610
0
610
0
0
300
320
620
0
0
230
470
700
90
700
330
380
1,500
30
0
570
11,030
11,630
180
0
1,420
320
1,910
90
700
1,420
320
2,530
BAT Option / NPDES Scenario 3 (>300 AU with certification)
Cattle
Dairy
Hogs
Poultry
Total 3/
4,330
6,480
8,360
17,830
37,000
0
0
610
0
610
0
0
300
330
630
0
0
230
470
700
50
610
320
370
1,350
0
0
570
10,740
11,310
100
0
1,420
330
1,850
50
610
1,420
330
2,410
Source: USEPA. See Economic Analysis. Impact estimates shown include impacts to designated operations.
Numbers may not add due to rounding. ND - Not Determined. Option/Scenario definitions provided in Table 10-
2.
"Option 3A impacts reflect operations where there is a determined groundwater hydrologic connection to surface
waters (assumed at 24 percent of the affected operations).
21 "Total" does not adjust for operations with mixed animal types, for comparison purposes, to avoid understating
costs at operations with more than one animal type that may incur costs to comply with the proposed requirements
for each type of animal that is raised on-site. The number of CAFOs shown includes expected defined CAFOs only
and excludes designated facilities.
c. Economic Analysis of New CAFOs from NSPS under the Proposed
Regulations
For new sources, EPA is proposing that operations meet performance standards, as
specified by the BAT requirements (Option 3 NSPS, beef and dairy subcategories, and Option 5
NSPS, swine and poultry subcategories), with the additional requirement that all new hog and
poultry operations also implement groundwater controls where there is a hydrologic link to
surface water (Option 3 NSPS, swine and poultry subcategories). Additional information on new
source requirements is provided in Section VIE of this document.
In general, EPA believes that new CAFOs will be able to comply at costs that are similar
to, or less than, the costs for existing sources, because new sources can apply control
technologies more efficiently than sources that need to retrofit for those technologies. New
sources will be able to avoid these costs that will be incurred by existing sources. Furthermore,
EPA believes that new sources can avoid the costs associated with ground water protection
294
-------
through careful site selection. There is nothing about today's proposal that would give existing
operators a cost advantage over new feedlot operators; therefore, new source standards are not
expected to present a barrier to entry for new facilities.
EPA's analysis of the NSPS costs indicate that requiring Option 3 for new sources in the
beef and dairy subcategories and both Option 3 NSPS and Option 5 NSPS for the swine and
poultry subcategories ("Option 5+3 NSPS") would be affordable and would not create any
barriers to entry into those sectors. The basis for this determination is as follows. Option 5+3
NSPS is considered equivalent to Option 5 for new sources in terms of cost. EPA is proposing
that Option 3 NSPS for beef and dairy subcategories and Option 5 NSPS for swine and poultry
subcategories is economically achievable for existing sources. Since the estimated costs for these
options are the same as or less expensive than costs for these same options for existing sources,
no barriers to entry are created.
Under Option 5+3 NSPS, costs for new sources in the swine and poultry subcategories
would be the same as or less than those for equivalent existing sources (BAT under Option 5), as
long as new sources are not sited in areas where there is a hydrologic link to surface water. New
operations are not expected to incur costs estimated under Option 3A, which includes
groundwater controls, since they are not likely to establish a new operation where there is a
hydrologic link to surface waters (and where operating expenses would be more costly). Thus
EPA assumes that the costs for Option 5+3 NSPS are the same as those for Option 5 NSPS,
which in turn are the same as those for Option 5 BAT. EPA is proposing that Option 5 BAT is
economically achievable for existing sources in the swine and poultry subcategories and
therefore this same option should be affordable to new sources. Furthermore, because costs to
new sources for meeting Option 5 NSPS are no more expensive than the costs for existing
sources to meet Option 5 BAT, there should be no barriers to entry.
The estimated costs of Option 3 NSPS for the beef and dairy subcategories are the same as
or less than the costs for Option 3 BAT, which includes retrofitting costs. EPA is proposing that
Option 3 BAT is economically achievable for existing sources in these sectors. Since Option 3
NSPS is no more expensive than Option 3 BAT, this option should also be economically
achievable for new sources and should not create any barriers to entry. In fact, new sources may
be able to avoid the cost of implementing groundwater controls through careful site selection,
thus their costs may be substantially lower than similar existing sources.
EPA did not consider an option similar to Option 5+3 NSPS for the beef and dairy
subcategories (Option 8 NSPS), but found this option to be substantially more expensive than
Option 3 BAT for the dairy sector and could create barriers to entry for this sector. Therefore,
EPA rejected this option. See Section 5 of the Economic Analysis for more details on these
analyses.
d. Economic Impacts to Offsite Recipients of CAFO Manure of the Proposed
Regulations
295
-------
As discussed in Section X.D.I, EPA assesses the economic impact to offsite recipients of
CAFO manure by comparing the estimated cost of this requirement to both aggregate and
average per-farm production costs and revenues. For the purpose of this analysis, EPA assumes
that these regulatory costs will be borne by a non-CAFO fanning operation that uses animal
manures as a fertilizer substitute.
EPA estimates that 17,900 to 21,200 farming operations will incur $9.6 million to $11.3
million in costs associated with requirements for the offsite transfer of CAFO manure (Tables
10-3 and Table 10-4). This translates to an average cost of roughly $540 per recipient. As
reported by USDA, farm production expenses in 1997 totaled $150.6 billion nationwide.
Revenue from farm sales totaled $196.9 billion. Averaged across the total number of farms,
average per-farm costs and revenues were $78,800 and $113,000 in 1997, respectively. Using
these data, the ratio of incremental costs to offsite recipients as a share of average operating
expenses and average farm revenue is well under one percent. Total estimated compliance costs
($9.6 million to $11.3 million annually) as a share of aggregate farm expenses and sales is also
under one percent. This analysis is provided in Section 5 of the Economic Analysis.
2. Processor Level Analysis
As discussed in Section X.D.2, EPA did not conduct a detailed estimate of the costs and
impacts that would accrue to individual co-permittees due to lack of data and market
information. However, EPA believes that the framework used to estimate costs to CAFO
provides a means to evaluate the possible upper bound of costs that could accrue to potential co-
permittees, based on the potential share of (pre-tax) costs that may be passed on from the CAFO
(described in Section X.D.2). EPA is proposing that this amount approximates the magnitude of
the costs that may be incurred by processing firms in those industries that may be affected by the
proposed co-permitting requirements.
Table 10-9 presents the results of EPA's analysis. This analysis focuses on the potential
magnitude of costs to co-permittees in the pork and poultry sectors only since these are the
sectors where the proposed co-permitting requirements could affect processing facilities.
However, EPA did not evaluate the potential magnitude of costs to egg and turkey processors
because the compliance costs to CAFOs in these industries is projected to be easily absorbed by
CAFOs (see Section X.F.1). The results presented in Table 10-9 are for the pork and broiler
industries only. EPA also did not evaluate the potential costs to cattle and dairy processors
because EPA does not expect that the proposed co-permitting requirements to affect meat
packing and processing facilities in these industries, for reasons outlined in Section VI.
The potential magnitude of costs to co-permittees is derived from the amount of cost
' passthrough assumed in the CAFO level analysis, described in Section X.F.1. For this analysis,
two scenarios of cost passthrough to processors are evaluated: partial cost passthrough (greater
than zero) and also 100 percent cost passthrough. EPA's partial cost passthrough scenario
296
-------
assumes that 46 percent of all hog compliance costs and that 35 percent of all broiler compliance
costs are passed on to the food processing sectors. Based on the results of this analysis, EPA
estimates that the range of potential annual costs to hog processors is $135 million (partial cost
passthrough) to $306 million (full cost passthrough). EPA estimates that the range of potential
annual costs to broiler processors as $34 million (partial cost passthrough) to $117 million (full
cost passthrough). These results are shown in Table 10-9 and are expressed in 1999 pre-tax
dollars.
To assess the magnitude of impacts that could accrue to processors using this approach,
EPA compares the passed through compliance costs to both aggregate processor costs of
production and to revenues (a sales test). The results of this analysis are shown in Table 10-9
and are presented in terms of the equivalent 1997 compliance cost as compared to 1997 data
from the Department of Commerce on the revenue and costs among processors in the hog and
broiler industries. As shown, EPA estimates that, even under full cost passthrough, incremental
cost changes are less than two percent and passed through compliance costs as a share of revenue
are estimated at less than one percent. EPA solicits comment on this approach. Additional
information is provided in the Economic Analysis,
Table 10-9. Impact of Passed Through Compliance Costs under Co-proposed Alternatives
Sector
Passed Through
Compliance Cost
Partial
CPT
100%
CPT
($1999, million)
1997
Revenues
1997
Delivered
Cost
($1997, million)
Passed through
Cost-to-Revenues
Partial
CPT
100%
CPT
Passed through
Cost-to-Delivered
Cost
Partial
CPT
100%
CPT
(percent, comparing costs in $1997)
Hog Processors
Two-Tier
Three-Tier
$135
$141
$294
$306
$38,500
$15,700
0.3%
0.4%
0.7%
' 0.8%
0.8%
0.9%
1.8%
1.9%
Broiler Meat Processors
Two-Tier
Three-Tier
$34
$41
$97
$117
$17,700
$9,100
0.2%
0.2%
0.5%
0.6%
0.4%
0.4%
1.0%
1.2%
Source: USEPA. 1997 processor revenues and costs are from the Department of Commerce. Option/Scenario
definitions provided in Table 10-2. Estimated compliance costs are pre-tax. CPT = Cost passthrough. Partial CPT
assumes 46% CPT for the hog sector and 35% CPT for the broiler sector.
3. Market Level Analysis
297
-------
As discussed in Section X.D.3, EPA's market analysis evaluates the effects of the
proposed regulations on commodity prices and quantities at the national level. EPA's market
model predicts that the proposed regulations will not result in significant industry-level changes
in production and prices for most sectors. Tables 10-10 and 10-11 show predicted farm and
retail price changes across the two-tier (500 AU threshold) and three-tier structures. For
comparison purposes, the average annual percentage change in price from 1990 to 1998 is
shown. Analyses of other technology options and scenarios considered by EPA are provided in
the record.
EPA expects that predicted changes in animal production may raise producer prices, as the
market adjusts to the proposed regulatory requirements. For most sectors, EPA estimates that
producer price changes will rise by less than one percent of the pre-regulation baseline price
(Table 10-10). The exception is in the hog sector, where estimated compliance costs slightly
exceed one percent of the baseline price. At the retail level, EPA expects that the proposed
regulations will not have a substantial impact on overall production or consumer prices for value-
added meat, eggs, and fluid milk and dairy products. EPA estimates that retail price increases
resulting from the proposed regulations will be under one percent of baseline prices in all sectors,
averaging below the rate of general price inflation for all foods (Table 10-11). In terms of retail
level price changes, EPA estimates that poultry and red meat prices will rise about one cent per
pound. EPA also estimates that egg prices will rise by about one cent per dozen and that milk
prices will rise by about one cent per gallon.
Appendix D of the Economic Analysis provides results of sensitivity analyses, conducted
by EPA, to examine the impact under differing model assumptions. EPA examined variations in
the price elasticities and prices assumed for these industries, based on information reported in the
agricultural literature and statistical compendiums. These sensitivity analyses demonstrate that
the results presented here are stable across a range of possible modeling assumptions.
Table 10-10. Estimated Increases in Farm Prices Under the Co-proposed Alternatives
Option/Scenario
Pre-reg. Avg Price
Avg.Chg90-98(%)
Two-Tier
Three-Tier
Beef
($/cwt)
$68.65
4.6%
$0.22
$0.24
Dairy
($/cwt)
$13.90
8.0%
$0.06
$0.08
Hogs
($/cwt)
$56.41
15.2%
$0.61
$0.66
Broilers
(cents/lb)
38.43
5.7%
0.19
0.23
Layers
(cents/doz.)
72.51
11.5%
0.14
0.15
Turkeys
(cents/lb)
41.66
4.4%
0.13
0.16
Source: USEPA, except historical data that are from USDA. Option/Scenario definitions provided in Table 10-2.
Table 10-11. Estimated Increases in Retail Prices Under the Co-proposed Alternatives
1 Option/Scenario
Beef
($/Ib)
Dairy
(Index)
Hogs
($/lb)
Broilers
(cents/lb)
Layers
(cents/doz.)
Turkeys
(cents/lb)
298
-------
Pre-reg. Avg Price
Avg. Chg 90-98 (%)
Two-Tier
Three-Tier
$2.91
2.3%
$0.00
$0.00
145.50
2.4%
0.61
0.78
$2.55
5.1%
$0.01
.$0.01
156.86
3.0%
0.19
0.23
110.11
7.2%
0.14
0.15
109.18
2.4%
0.13
0.16
Source: USEPA, except historical data that are from USDA. Option/Scenario definitions provided in Table 10-2.
EPA does not expect that the proposed regulations will result in significant changes in
aggregate employment or national economic output, measured in terms of Gross Domestic
Product (GDP). EPA expects, however, that there will be losses in employment and economic
output associated with decreases in animal production due to rising compliance costs. These
losses are estimated throughout the entire economy, using available modeling approaches, and
are not attributable to the regulated community only. This analysis also does not adjust for
offsetting increases in other parts of the economy and other sector employment that may be
stimulated as a result of the proposed regulations, such as the construction and farm services
sectors.
Table 10-12 show these predicted changes. Employment losses are measured in full-time
equivalents (FTEs) per year, including both direct and indirect employment. Under the two-tier
structure (500 AU threshold), EPA estimates that the reduction in aggregate national level of
employment is 16,600 FTEs. Under the three-tier structure, EPA estimates total aggregate job
losses at 18,900 FTEs. This projected change is modest when compared to total national
employment, estimated at about 129.6 million jobs in 1997. EPA's estimate of the aggregate
reductions in national economic output is $1.7 billion under the two-tier structure. Under the
three-tier structure, EPA estimates the loss to GDP at $1.9 billion. This projected change is also
modest when compared to total GDP, estimated at $8.3 trillion in 1997. Additional information
is available in the Economic Analysis.
Table 10-12. Estimated Decreases in Employment and Economic Output
Option/
Scenario
Beef
Dairy
Hogs
Estimated Decreases in Employment (Number of FTEs)
Two-Tier
Three-Tier
4,600
4,900
3,200
4,100
6,400
6,900
Poultry
2,400
3,000
Total
16,600
18,900
Estimated Decreases in Economic Output ($GDP)
Two-Tier
Three-Tier
$476
$510
$307
$396
$681
$734
$251
$306
$1,715
$1,946
Source: USEPA. Option/Scenario definitions provided in Table 10-2. FTE = Full-time equivalent.
299
-------
G. Additional Impacts
1. Costs to the NPDES Permitting Authority
Additional costs will be incurred by the NPDES permitting authority to alter existing state
programs and obtain EPA approval to develop new permits, review new permit applications and
issue revised permits that meet the proposed regulatory requirements. Under the proposed rule,
NPDES permitting authorities will incur administration costs related to the development,
issuance, and tracking of general or individual permits.
State and federal administrative costs to issue a general permit include costs for permit
development, public notice and response to comments, and public hearings. States and EPA may
also incur costs each time a facility operator applies for coverage under a general permit due to
the expenses associated with a Notice of Intent (NOI)'. These per-facility administrative costs
include initial facility inspections and annual record keeping expenses associated with tracking
NOIs. Administrative costs for an individual permit include application review by a permit
writer, public notice, and response to comments. An initial facility inspection may also be
necessary. EPA developed its unit permit costs assumed for this analysis based on information
obtained from a state permitting personnel. The cost assumptions used to estimate develop,
review, and approve permits and inspect facilities are presented in the Development Document.
EPA assumes that, under the two-tier structure, an estimated 25,590 CAFOs would be
permitted. This estimate consists of 24,760 State permits (17,340 General and 7,420 Individual
permits) and 1,030 Federal permits (720 General and 310 Individual permits). Under the three-
tier structure, an estimated 31,930 CAFOs would be permitted, consisting of 30,650 State
permits (21,460 General and 9,190 Individual permits) and 1,280 Federal permits (900 General
and 380 Individual permits). Information on the estimated number of permits required under
other regulatory alternatives is provided in the Economic Analysis. The basis for these estimates
is described in the Development Document that supports this rulemaking.
As shown in Table 10-13, under the two-tier structure, EPA estimates State and Federal
administrative costs to implement the permit program to be $6.2 million per year: $5.9 million
for states and $350,000 for EPA. Under the three-tier structure, EPA estimates State and Federal
administrative costs to implement the permit program to be $7.7 million per year: $7.3 million
for states and $416,000 for EPA. EPA expects that the bulk (95 percent) of estimated
administrative costs will be incurred by the state permitting authority. EPA has expressed these
costs in 1999 dollars, annualized over the 5-year permit life using a seven percent discount rate.
The range of costs across each of the regulatory options is $4.2 million to $9.1 million annually
(alternatives Scenario 1 and Scenario 4b, respectively). See Table 10-13. (EPA did not estimate
permit authority costs under alternative NPDES Scenarios 5 and 6, described in Table 10-2.)
This analysis is available in the record and is summarized in Section 10 of the Economic
Analysis.
300
-------
-------
This analysis was conducted to evaluate the costs of the proposed rule to governments, as
required under the Unfunded Mandates Reform Act (UMRA), as discussed in Section XDQLC of
this preamble.
Table 10-13. Annual State and Federal Administrative Costs, $1999
Regulatory scenario
Scenario 1
Scenario 2
Scenario 3 ('Three-tier")
Scenario 4a ('Two-tier")
Scenario 4b
State
$3,922,990
$7,233,470
$7,279,560
$5,910,750
$8,645,520
Federal
$268,630
$413,060
$415,600
$351,090
$483,010
Total
$4,191,620
$7,646,530
$7,695,160
$6,224,040
$9,128,530
Source: USEPA. See Economic Analysis. Other supporting documentation is in the Development Document.
2. Community Impacts
As discussed in Section X.F.3, EPA does not expect that the proposed regulations will
result in significant increases in retail food prices or reductions in national level employment.
EPA also considered other community level impacts associated with this rulemaking. In
particular, EPA considered whether the proposed rule could have community level and/or
regional impacts if it substantially altered the competitive position of livestock and poultry
production across the nation, or led to growth or reductions in farm production (in- or out-
migration) in different regions and communities. Ongoing structural and technological change in
these industries has influenced where farmers operate and has contributed to locational shifts
between the more traditional production regions and the more emergent, nontraditional regions.
Production is growing rapidly in these regions due to competitive pressures from more
specialized producers who face lower per-unit costs of production. This is especially true in hog
and dairy production.
To evaluate the potential for differential impacts among farm production regions, EPA
examined employment impacts by region. EPA concluded from this analysis that more
traditional agricultural regions would not be disproportionately affected by the proposed
regulations. This analysis is provided in the Economic Analysis.
EPA does not expect that today's proposed requirements will have a significant impact on
where animals are raised. On one hand, on-site improvements in waste management and
disposal, as required by the proposed regulations, could accelerate recent shifts in production to
more nontraditional regions as higher cost producers in some regions exit the market to avoid
301
-------
relatively higher retrofitting associated with bringing existing facilities into compliance. On the
other hand, the proposed regulations may favor more traditional production systems where
operators grow both livestock and crops, since these operations tend to have available cropland
for land application of manure nutrients. These types of operations tend to be more diverse and
not as specialized and, generally, tend to be smaller in size. Long-standing farm services and
input supply industries in these areas could likewise benefit from the proposed rule, given the
need to support on-site improvements in manure management and disposal. Local and regional
governments, as well as other non-agricultural enterprises, would also benefit.
3. Foreign Trade Impacts
Foreign trade impacts are difficult to predict, since agricultural exports are determined by
economic conditions in foreign markets and changes in the international exchange rate for the
U.S. dollar. However, EPA predicts that foreign trade impacts as a result of the proposed
regulations will be minor given the relatively small projected changes in overall supply and
demand for these products and the slight increase in market prices, as described in Section X.F.3.
Despite its position as one of the largest agricultural producers in the world, historically
the U.S. has not been a major player in world markets for red meat (beef and pork) or dairy
products. In fact, until recently, the U.S. was a net importer of these products. The presence of a
large domestic market for value-added meat and dairy products has limited U.S. reliance on
developing export markets for its products. As the U.S. has taken steps to expand export markets
for red meat and dairy products, one major obstacle has been that it remains a relatively high cost
producer of these products compared to other net exporters, such as New Zealand, Australia, and
Latin America, as well as other more established and government-subsidized exporting countries,
including the European Union and Canada. Increasingly, however, continued efficiency gains
and low-cost feed is making the U.S. more competitive in world markets for these products,
particularly for red meat. While today's proposed regulations may raise production costs and
potentially reduce production quantities that would otherwise be available for export, EPA
believes that any quantity and price changes resulting from the proposed requirements will not
significantly alter the competitiveness of U.S. export markets for red meat or dairy foods.
In contrast, U.S. poultry products account for a controlling share of world trade and
exports account for a sizable and growing share of annual U.S. production. Given the established
presence of the U.S. in world poultry markets and the relative strength in export demand for
these products, EPA does not expect that the predicted quantity and price changes resulting from
today's proposed regulations will have a significant impact on the competitiveness of U.S.
poultry exports.
As part of its market analysis, EPA evaluated the potential for changes in traded volumes,
such as increases in imports and decreases in exports, and concluded that volume trade will not
be significantly impacts by today's proposed regulations. EPA estimates that imports (exports)
will increase (decrease) by less than 1 percent compared to baseline (pre-regulation) levels in
302
-------
each of the commodity sectors. By sector, the potential change in imports compared to baseline
trade levels ranges from a 0.02 percent increase in broiler imports to a 0.34 percent increase in
dairy product imports. The predicted drop in U.S. exports ranges from a 0.01 percent reduction
in turkey exports to a 0.25 percent reduction in hog exports.
H. Cost-Effectiveness Analysis
As part of the process of developing effluent limitations guidelines and standards, EPA
typically conducts a cost-effectiveness analysis to compare the efficiencies of regulatory options
for removing pollutants and to compare the proposed BAT option to other regulatory alternatives
that were considered by EPA. For the purpose of this regulatory analysis, EPA defines cost-
effectiveness as the incremental annualized cost of a technology option per incremental pound of
pollutant removed annually by that option. The analyses presented in this section include a
standard cost-effectiveness (C-E) analysis for toxic pollutants, but also expand upon EPA's more
traditional approach to include an analysis of the cost-effectiveness of removing nutrients and
sediments. This expanded approach is more appropriate for evaluating the broad range of
pollutants in animal manure and wastewater.
The American Society of Agricultural Engineers (ASAE) reports that the constituents
present in livestock and poultry manure include: boron, cadmium, calcium, chlorine, copper,
iron, lead, magnesium, manganese, molybdenum, nickel, potassium, sodium, sulfur, zinc,
nitrogen and phosphorus species, total suspended solids, and pathogens. Of these pollutants,
EPA's standard C-E analysis is suitable to analyze only the removal of metals and metallic
compounds. EPA's standard C-E analysis does not adequately address removals of nutrients,
total suspended solids, and pathogens. To account for the estimated removals of nutrients and
sediments under the proposed regulations in the analysis, the Agency has developed an
alternative approach to evaluate the pollutant removal effectiveness relative to cost. At this time,
EPA has not developed an approach that would allow a similar assessment of pathogen removals.
Section 10 of the Economic Analysis describes the methodology, data, and results of this
analysis. (EPA did not estimate cost-effectiveness for the alternative NPDES Scenarios 5 and 6,
described in Table 10-2.)
For this analysis, EPA has estimated the expected reduction of select.pollutants for each of
the regulatory options considered. These estimates measure the amount of nutrients, sediments,
metals and metallic compounds that originate from animal production areas that would be
removed under a post-regulation scenario (as compared to a baseline scenario) and not reach U.S.
waters. Additional information on EPA's estimated loadings and removals under post-
compliance conditions is provided in the Development Document and the Benefits Analysis that
support today's rulemaking.
1. Cost-Effectiveness: Priority Pollutants
303
-------
For this rulemaking, EPA identified a subset of metallic compounds for use in the C-E
analysis: zinc, copper cadmium, nickel, arsenic, and lead. These six compounds are a subset of
all the toxic compounds reported to be present in farm animal manure (varies by animal species).
Therefore, if loading reductions of all priority pollutants in manure were evaluated, the proposed
regulations would likely be even more cost-effective (i.e., lower cost per pound-equivalent
removal).
EPA calculates cost-effectiveness as the incremental annual cost of a pollution control
option per incremental pollutant removal. In C-E analyses, EPA measures pollutant removals in
toxicity normalized units called "pounds-equivalent," where the pounds-equivalent removed for a
particular pollutant is determined by multiplying the number of pounds of a pollutant removed by
each option by a toxicity weighting factor. The toxic weighting factors account for the
differences in toxicity among pollutants and are derived using ambient water quality criteria. The
cost-effectiveness value, therefore, represents the unit cost of removing an additional pound-
equivalent of pollutants. EPA calculates the cost-effectiveness of a regulatory option as the ratio
of pre-tax annualized costs of an option to the annual pounds-equivalent removed by that option,
expressed as the average or incremental cost-effectiveness for that option. EPA typically
presents C-E results in 1981 dollars for comparison purposes with other regulations. EPA uses
these estimated compliance, costs to calculate the cost-effectiveness.of the proposed regulations,
which include total estimated costs to CAFOs and offsite recipients of CAFO manure (Section
X.E) and costs to the permitting authority (Section X.G.I). Additional detail on this approach is
provided in Appendix E of the Economic Analysis.
Cost-effectiveness results for select regulatory alternatives are presented in Table 10-14.
Results shown in Table 10-14 include the BAT Option (Option 3 for beef and dairy subcategories
and Option 5 for the swine and poultry subcategories) and Option 34-5 (both Option 3 and 5 for
all subcategories). Options are shown for four CAFO coverage scenarios, including CAFOs with
more than 1,000 AU and CAFOs with more than 500 AU (two-tier structure), and operations
with more than 300 AU, both under Scenario 4b and as defined under Scenario 3 (three-tier
structure). The differences in CAFO coverage provide an upper and lower bound of the analysis
to roughly depict the alternative NPDES scenarios. Both incremental and average C-E values are
shown.
Incremental cost-effectiveness is the appropriate measure for comparing one regulatory
alternative to another for the same subcategory. In general, the lower the incremental C-E value,
the more cost-efficient the regulatory option is in removing pollutants, taking into account their
toxicity. For this rulemaking, EPA compares the cost-effectiveness across alternative NPDES
Scenarios to assess the Agency's decision to define as CAFO operations with more than 500 AU
(two-tier structure) and, alternatively, some operations with more than 300 AU (two-tier
structure).
As shown in Table 10-14, the BAT Option is the most cost-efficient under each of the co-
proposed alternatives. Under both the two-tier (500 AU) and three-tier structures, EPA estimates
an incremental cost-effectiveness value of about $30 per pounds-equivalent (Ibs.-eq.) removed.
304
-------
This compares to the alternative Scenario 4b that have a higher estimated incremental cost-
effectiveness ($76/lbs.-eq., if all CAFOs with more than 1,000 AU are regulated). (Since the
change in removals between Scenario 3 and Scenario 4b is zero, the incremental C-E value is
"undefined.") The BAT Option is also more efficient than requiring Option 3+5 for all
subcategories, which has higher costs but results in no additional pollutant removals compared to
the BAT Option. This is because the ELG options differ mostly in terms of their monitoring and
sampling requirements but establish no additional pollutant controls. (Since the change in
removals between the BAT Option and Option 3+5 is zero, the incremental C-E value is
undefined.)
The average cost-effectiveness reflects the "increment" between no regulation and
regulatory options shown. For the BAT Option, EPA estimates an average value at $55 per Ibs.-
eq. to $58 per Ibs.-eq., depending on the proposed tier structure (Table 10-14). These estimated
average values are low compared to the alternative NPDES scenarios since the average cost-
effectiveness value is higher ($76/Ibs.-eq., if all CAFOs with more than 1,000 AU are regulated;
$62/lbs.-eq. for all CAFOs with more than 300 AU). This average cost is also low compared to
previous ELG rulemakings, where estimated costs have, in some cases, exceeded $100/lbs.-eq.
removed. This information is provided in the Economic Analysis, In addition, as shown in Table
10-14, average cost-effectiveness is nearly twice as high under the more stringent Option 3+5 for
all subcategories (estimated at more than $100 per Ibs.-eq. removed). Costs, but also removals,
are lower under the less stringent Option 1 (also referred to as the "nitrogen-based" option)
compared to other technology options. As described in Section Vfll, EPA determined that this
option would not represent the best available technology and so chose not to propose it. This
analysis, along with additional results for each subcategory and other regulatory alternatives, is
provided in Appendix E on the Economic Analysis.
Table 10-14. Cost-Effectiveness Results by Select Option/Scenario ($1981)
Option
Total Annual
Pound-Equivalents
Removed v
(million pounds)
Total Cost2'
($ millions)
Average
Cost-
Effectiveness
Incremental
Cost-
Effectiveness
($/lbs.-eq.)
"BAT Option" ELG Option 3 (Beef/Dairy) and 5 (Swine/Poultry)
>1000 AU
>500AU "Two-tier"
Scenario 3 "Three-tier"
>300 AU
5.3
8.4
9.4
9.4
$402
$491
$518
$579
$76
$58
$55
$62
$76
$29
$28
ND
ELG Option 3+5 (AH Subcategories)
>1000 AU
>500 AU 'Two-tier"
Scenario 3 "Three-tier"
5.3
8.4
9.4
$1,047
$1,212
$1,251
$197
$144
$133
$197
$53
$40
305
-------
>300 AU
9.4
$1,353
$144
ND
Source: USEPA. Set Economic Analysis. Option/Scenario definitions provided in Table 10-2. ND=Not
Determined.
}/ Pound-equivalent removals are calculated from removals estimated by EPA's loadings analysis, described in the
Benefits Analysis and the Development Document, adjusting for each pollutants toxic weighting factor (as described
in the Economic Analysis).
v Costs are pre-tax and indexed to 1981 dollars using the Construction Cost Index.
2. Cost-Effectiveness: Nutrients and Sediments
In addition to conducting a standard C-E analysis for select toxic pollutants (Section
X.H.1), EPA also evaluated the cost-effectiveness of removing select non-conventional and
conventional pollutants, including nitrogen, phosphorus, and sediments. For this analysis,
sediments are used as a proxy for total suspended solids (TSS). This analysis does not follow the
methodological approach of a standard C-E analysis. Instead, this analysis compares the
estimated compliance cost per pound of pollutant removed to a recognized benchmark, such as
EPA's benchmark for conventional pollutants or other criteria for existing treatment, as reported
in available cost-effectiveness studies. .
The research in this area has mostly been conducted at municipal facilities, including
publicly owned treatment works (POTWs) and wastewater treatment plants (WWTPs).
Additional information is available based on the effectiveness of various nonpoint source
controls and BMPs (Best Management Practices) and other pollutant control technologies that
are commonly used to control runoff from agricultural lands. A summary of this literature is
provided in the Economic Analysis. Benchmark estimates are used to evaluate the efficiency of
regulatory options in removing a range of pollutants and to compare the results for each of the
co-proposed tier structures to other regulatory alternatives. This approach also allows for an
assessment of the types of management practices that will be implemented to comply with the
proposed regulations.
Cost-effectiveness results for select regulatory alternatives are presented in Table 10-15.
Results shown in Table 10-15 include the BAT Option (Option 3 for beef and dairy subcategories
and Option 5 for the swine and poultry subcategories) and Option 3+5 (both Option 3 and 5 for
all subcategories). Options are shown for four CAFO coverage scenarios, including CAFOs with
more than 1,000 AU and CAFOs with more than 500 AU (two-tier structure), and operations
with more than 300 AU, both under Scenario 4b and as defined under Scenario 3 (three-tier
structure). The differences in CAFO coverage provide an upper and lower bound of the analysis
to roughly depict the alternative NPDES scenarios.
The values in Table 10-15 are average cost-effectiveness values that reflect the increment
between no regulation and the considered regulatory options. All costs are expressed in pre-tax
1999 dollars. Estimated compliance costs used to calculate the cost-effectiveness of the
proposed regulations include total estimated costs to CAFOs and offsite recipients of CAFO
manure (Section X.E) and costs to the permitting authority (Section X.G.1). ,
306
-------
Under the co-proposed tier structures, EPA estimates an average cost-effectiveness of
nutrient removal at $4.60 per pound (two-tier) to $4.30 per pound (three-tier) of nitrogen
removed. For phosphorus removal, removal costs are estimated at $2.10 to $2.20 per pound of
phosphorus removed (Table 10-15). For nitrogen, EPA uses a cost-effectiveness benchmark
established by EPA's Chesapeake Bay Program to assess the costs to WWTPs to implement
BNR (biological nutrient removal) retrofits. EPA's average benchmark estimate is about $4 per
pound of nitrogen removed at WWTPs in four states (MD, VA, PA, and NY), based on a range
of costs of $0.80 to $5.90 per pound of nitrogen removed. Using this benchmark, EPA's
estimated cost-effectiveness to remove nitrogen under the proposed regulations exceed EPA's
average benchmark value, but falls within the estimated range of removal costs. However,
EPA's estimated cost-effectiveness to remove phosphorus is lower than benchmark used for
phosphorus of roughly $10 per pound, reported in the agricultural research as the costs to remove
phosphorus using various nonpoint source controls and management practices. Available data on
phosphorus removal costs for industrial point source dischargers are much higher (exceed $100
per pound of phosphorus removed). Based on these results, EPA concludes that these values are
cost-effective.
Costs and removals are nearly twice as high under the more stringent Option 3+5 for all
subcategories (Table 10-15). Costs and removals are lower under the less stringent Option 1, but
EPA chose not to propose Option 1 because it does not represent the best available technology
(also described in Section Vm of the preamble).
EPA estimates that the co-proposed thresholds (two-tier and three-tier structures) are more
cost-effective compared to alternative AU thresholds, given slightly lower average cost-
effectiveness values (Table 10-15). EPA estimates that the average cost-effectiveness to remove
nitrogen is $5.10 per pound of nitrogen removed at a threshold that would regulate as CAFOs all
operations with more than 1,000 AU; the average cost-effectiveness is $4.80 per pound of
nitrogen removed at the alternative 300 AU threshold (Table 10-15). EPA estimates that the
average cost-effectiveness to remove phosphorus is $2.50 per pound and $2.30 per pound of
phosphorus removed at the 1,000 AU and 300 AU threshold. EPA also estimates that the co-
proposed tier structures are also the most cost-efficient, compared to other alternatives
considered by EPA. These results, based on incremental cost-effectiveness values, are provided
in the Economic Analysis.
Table 10-15 also shows that the cost to remove sediments under the BAT Option/Scenario
is estimated at $0.003 per pound of sediment removal (1999 dollars). This estimated per-pound
removal cost is low compared to EPA's POTW benchmark for conventional pollutants. This
benchmark measures the potential costs per pound of TSS and BOD (biological nutrient demand)
removed for an "average" POTW (see 51 FR 24982). Indexed to 1999 dollars, EPA's
benchmark costs are about $0.70 per pound of TSS and BOD removed. The average cost-
effectiveness of sediment removal under the BAT Option/Scenario is lower than under the
alternative options. Option 1 results across the range of NPDES Scenarios are estimated at about
$0.05 per-pound removal of sediments. This analysis, along with additional results for each
307
-------
subcategory and other regulatory alternatives, is provided in Appendix E on the Economic
Analysis.
Table 10-15. Cost-Effectiveness Results by Select Option/Scenario ($1999)
Option/
Scenario
Total
Cost17
($m 1999)
Sediments
Nitrogen
Phosphorus
(million pounds of removals)
Sediments
Nitrogen
Phosphorus
(average $ per pound removed)
"BAT Option" ELG Option 3 (Beef/Dairy) and 5 (Swine/Poultry)
>1000AU
>500AU
"Two-tier"
>300AU
"Three-tier"
>300AU
$688
$840
$887
$991
209050
299708
335456
335456
136
182
206
206
280
377
425
425
$0.003
$0.003
$0.003
$0.003
$5.1
$4.6
$4.3
$4.8
$2.5
$2.2
$2.1
$2.3
ELG Option 3+5 (All Subcategories)
>1000 AU
>500AU
"Two-tier"
>300AU
•Three-tier"
>300 AU
$1,791
$2,074
$2,141
$2,316
209050
299708
335456
335456
136
182
206
206
280
377
425
425
$0.009
$0.007
$0.006
$0.007
$13.2
$11.4
$10.4
$11.2
$6.4
$5.5
$5.0
$5.5
Source: USEPA. See Economic Analysis. Option/Scenario definitions provided in Table 10-2. ND=Not
Determined.
"Costs are pre-tax.
I. Cost-Benefit Analysis
EPA estimated and compared the costs and benefits attributed to the proposed regulations.
The cost and benefit categories that the Agency was able to quantify and monetize for the
proposed regulations are shown in Table 10-16.
Total social costs of the proposed regulations range from $847 million to $949 million
annually, depending on the co-proposed approach (Table 10-16). These costs include
compliance costs to industry, costs to recipients of CAFO manure, and administrative costs to
States and Federal governments.
Under the two-tier structure, EPA projects that total compliance cost to industry is $831
million per year (pre-tax)/$572 million (post-tax). By comparison, under the three-tier structure,
EPA estimates that the cost to industry is $930 million per year (pre-tax)/$658 million (post-tax).
Costs to industry include annualized capital costs, operating and maintenance costs, start-up and
recurring costs, and also recordkeeping costs. Estimated costs cover four broad categories:
nutrient management planning, facility upgrades, land application, and technologies for balancing
308
-------
on-farm nutrients. In addition, under the two-tier structure, EPA estimates that the cost to off-
site recipients of CAFO manure is $10 million per year. The administrative cost to State and
Federal governments to implement the permit program is $6 million per year. Under the three-
tier structure, the annual cost to off-site recipients of manure is $11 million and State and Federal
administrative costs are $8 million per year.
EPA estimates that the monetized benefits of the proposed regulations range from $146
million to $182 million annually, depending on the co-proposed approach (Table 10-16). Annual
benefits are estimated to range from $146 million to $165 million under the two-tier structure;
under the three-tier structure, estimated benefits range from $163 million to $182 million
annually. EPA was only able to monetize (i.e., place a dollar value on) a small subset of the
range of potential benefits that may accrue under the proposed regulations. Data and
methodological limitations restricted the number of benefits categories that EPA was able to
reasonably quantify and monetize. The proposed regulations benefits are primarily in the areas
of reduced health risks and improved water quality, as shown in Table 10-16. In addition to
these monetized benefits, EPA expects that additional benefits will accrue under the regulations,
including reduced drinking water treatment costs, reduced odor and air emissions, improved
water quality in estuaries, and avoided loss in property value near CAFOs, among other benefits.
These benefits are described in more detail in the Benefits Analysis and other supporting
documentation provided in the record.
Table 10-16. Total Annual Social Costs and Monetized Benefits, $1999
Total Social Costs
Industry Compliance Costs (pre-tax):
NPDES Permitting Costs:
Offsite Recipients of CAFO Manure:
Total Social Costs
Monetized Benefits
Improved surface water quality
Reduced shellfish bed closures
Reduced fish kills
Improved water quality in private wells
Total Monetized Benefits
"Two-Tier" Structure
(500 AU threshold)
$830.7 million
$6.2 million
$9.6 million
$846.5 million
$108.5 million
$0.2 - 2.4 million
$0.2 - 0.4 million
$36.6 - 53.9 million
$145.5 - 165.2 million
"Three-Tier" Structure
(Scenario 3)
$930.4 million
$7.7 million
$11. 3 million
$949.4 million
$127.1 million
$0.2 - 2.7 million
$0.2 - 0.4 million
$35.4 - 52.1 million
$163.0 - 182.3 million
309
-------
J. Initial Regulatory Flexibility Analysis
Pursuant to Section 603 of the Regulatory Flexibility Act (RFA) as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), the Agency prepared an
Initial Regulatory Flexibility Analysis (IRFA) to assess the impacts on small livestock and poultry
feeding operations. EPA's IRFA and other supplemental economic analyses, as required under
Section 607 of the RFA, are provided in Section 9 of the Economic Analysis. This section
summarizes the estimated number of small entities to which the rule will apply and quantitatively
describes the effects of the proposed regulations. Other information on EPA's approach for
estimating the number of small businesses in these sectors is provided in the Final Report of the
Small Business Advocacy Review Panel on EPA's Planned Proposed Rule on National Pollutant
Discharge Elimination System (NPDES) and Effluent Limitations Guideline (ELG) Regulations
for Concentrated Animal Feeding Operations (referred to as the "Panel Report"). The Panel
Report is available in the rulemaking record, as well as online at http://www.epa.gov/sbrefa. A
summary of the Small Business Advocacy Review (SBAR) Panel proceedings and
recommendations is provided in Section Xn.G of this preamble. Section XDI.B of this preamble
summarizes other requirements to comply with the RFA.
1. Definition of Small Business
The Small Business Administration (SBA) defines a "small business" in the livestock and
poultry sectors in terms of average annual receipts (or gross revenue). SBA size standards for
these industries define a "small business" as one with average annual revenues over a 3-year
period of less than $0.5 million annually for dairy, hog, broiler, and turkey operations; $1.5
million for beef feedlots; and $9.0 million for egg operations. In today's rule, EPA is proposing
to define a "small" egg laying operation for purposes of its regulatory flexibility assessments as
an operation that generates less than $1.5 million in annual revenue. Because this definition of
small business is not the definition established under the Regulatory Flexibility Act (RFA), EPA
is specifically seeking comment on the use of this alternative definition as part of today's notice
of the proposed rulemaking (see Section XIILB and Section XIV). EPA also has consulted with
the SBA Chief Counsel for Advocacy on the use of this alternative definition. EPA believes this
definition better reflects the agricultural community's sense of what constitutes a small business
and more closely aligns with the small business definitions codified by SBA for other animal
operations. A summary of EPA's rationale and supporting analyses pertaining to this alternative
definition is provided in the record and in the Economic Analysis.
2. Number of Small Businesses Affected under the Proposed Regulations
Table 10-17 shows EPA's estimates of the number of small businesses in the livestock and
poultry sectors and the number of small businesses that are expected to be affected by the
proposed regulations. The approach used to derive these estimates is described in more detail in
Section 9 of the Economic Analysis and also in Sections 4 and 5 of the Panel Report. EPA
presented this and other alternative approaches during the SBAR Panel proceedings, as discussed
in Section XHG.2.a of this document. EPA is requesting public comment on this approach.
310
-------
EPA uses three steps to determine the number of small businesses that may be affected by
the proposed regulations. First, EPA identifies small businesses in these sectors by equating
SBA's annual revenue definition with the number of animals at an operation. Second, EPA
estimates the total number of small businesses in these sectors using farm size distribution data
from USDA. Third, based on the regulatory thresholds being proposed, EPA estimates the
number of small businesses that would be subject to the proposed requirements. These steps are
summarized below.
In the absence of farm or firm level revenue data, EPA identifies small businesses in these
sectors by equating SBA's annual revenue definitions of "small business" to the number of
animals at these operations (step 1). This step produces a threshold based on the number of
animals that EPA uses to define small livestock and poultry operations and reflects the average
farm inventory (number of animals) that would be expected at an operation with annual revenues
that define a small business. This initial conversion is necessary because USDA collects data by
farm size, not by business revenue. With the exception of egg laying operations, EPA uses SBA's
small business definition to equate the revenue threshold with the number of animals raised on-
site at an equivalent small business in each sector. For egg laying operations, EPA uses its
alternative revenue definition of small business.
EPA estimates the number of animals at an operation to match SBA's definitions using
SBA's annual revenue size standard (expressed as annual revenue per entity) and USDA-reported
farm revenue data that are scaled on a per-animal basis (expressed as annual revenue per
inventory animal for an average facility). Financial data used for this calculation are from
USDA's 1997 ARMS database. This approach and the data used for this calculation are outlined
in Section 9 of the Economic Analysis. The resultant size threshold represents an average animal
inventory for a small business. For the purpose of conducting its IRFA for this rulemaking, EPA
is evaluating "small business" for these sectors as an operation that houses or confines less than:
1,400 fed beef cattle; 200 mature dairy cattle; 1,400 market hogs; 25,000 turkeys; 61,000 layers;
or 260,000 broilers (Table 10-17).
EPA then estimates the total number of small businesses in these sectors using facility size
distribution data from USDA (step 2). Using the threshold sizes identified for small businesses,
identified above, EPA matches these thresholds with the number of operations associated with
those size thresholds to estimate the total number of small animal confinement operations in these
sectors. Finally, based on the regulatory thresholds being proposed—e.g., operations with more
than 500 AU are CAFOs—EPA estimates the number of small businesses that will be subject to
the proposed requirements (step 3). The 1997 Census constitutes the primary data source that
EPA uses to match the small business thresholds (e.g., a small dairy operation has less than 200
milk cows) to the number of facilities that match that size group (e.g., the number of dairies with
less than 200 cows, as reported by USDA). EPA also used other supplemental data, including
other published USDA data and information from industry and the state extension agencies.
311
-------
Table 10-17. Number of Small CAFOs That May Be Affected by the Proposed Regulations
Sector
Cattle1'
Dairy
Hogs
Broilers
Egg Layers
Turkeys
All AFOs *
Total Annual
($mi!lion)Re
venue v
(a)
$1.5
$0.5
$0.5
$0.5
$9.0
$1.5
$0.5
NA
Revenue
per
Head2'
(b)
$1,060
$2,573
$363
$2
$25
$20
NA
No. of Animals
(Avg, U.S.)
-------
which are broiler operations (about 77 percent) and cattle operations (18 percent), including fed
cattle, veal, and heifer operations. An estimated 6,490 operations have between 500 and 1,000
AU. The number of operations that would be regulated with between 300 and 1,000 AU is
estimated at 10,570 operations (accounting for mixed operations).
Due to continued consolidation and facility closure since 1997, EPA's estimates may
overstate the actual number of small businesses in these sectors. In addition, ongoing trends are
causing some existing small and medium size operations to expand their inventories to achieve
scale economies. Some of the CAFOs considered here as small businesses may no longer be
counted as small businesses because they now have higher revenues. Furthermore, some CAFOs
may be owned by a larger, vertically integrated firm, and may not be a small business. EPA
expects that there are few such operations, but does not have data or information to reliably
estimate the number of CAFOs that meet this description.
Under the two-tier structure, EPA estimates also include an additional 500 operations with
fewer than 500 AU that may be designated as CAFOs under the proposed regulations over a 10-
year period. See Section VI. Of these, 330 operations meet the small business definition: 50
dairies, 200 hog, 40 beef, 20 broiler, and 20 egg laying operations. Under the three-tier structure,
EPA estimates that 100 operations with fewer than 300 AU may be designated over ten years,
including 50 dairies and 50 hog operations, all of which are small businesses. As these facilities
are designated, EPA did not adjust this total to reflect possible mixed animal operations. Each of
these operations are small businesses.
3. Estimated Economic Impacts to Small CAFOs under the Proposed Regulations
EPA conducted a preliminary assessment of the potential impacts to small CAFO
businesses based on the results of a costs-to-sales test. This screen test indicated the need for
additional analysis to characterize the nature and extent of impacts on small entities. The results
of this screening test indicate that about 80 percent (about 9,600) of the estimated number of small
businesses directly subject to the rule as CAFOs may incur costs in excess of three percent of
sales (evaluated for all operations with more than 500 AU). Compared to the total number of all
small animal confinement facilities estimated by EPA (356,000 facilities), operations that are
estimated to incur costs in excess of three percent of sales comprise less than two percent of all
small businesses in these sectors. The results of this analysis are provided in Section 9 of the
Economic A)ialysis.
Based on the results of this initial assessment, EPA projected that it would likely not certify
that the proposal, if promulgated, would not impose a significant economic impact on a
substantial number of entities. Therefore, EPA convened a Small Business Advocacy Review
Panel and prepared an Initial Regulatory Flexibility Analysis (IRFA) pursuant to Sections 609(b)
and 603 of the RFA, respectively. Section XII.G provides more information on EPA's small
business outreach and the Panel activities during the development of this rulemaking.
313
-------
The results of EPA's assessment of the financial impacts of the proposed rule on small
entities are as follows. To further examine small businesses effects, EPA used the same approach
as that used to evaluate the impact to CAFOs under the proposed regulations described in Section
X.D.1. Economic achievability is determined by applying the proposed criteria described in
Section X.F.1. These criteria include a sales test and also analysis of post-compliance cash flow
and debt-to-asset ratio for an average model CAFO.
Accordingly, if an average model facility is determined to incur economic impacts under
regulation that are regarded as "Affordable" or "Moderate," then the proposed regulations are
considered economically achievable. ("Moderate" impacts are not expected to result in closure
and are considered to be economically achievable by EPA.) If an average operation is determined
to incur "Stress," then the proposed regulations are not considered to be economically achievable.
"Affordable" and "Moderate" impacts are associated with positive post-compliance cash flow
over a 10-year period and a debt-to-asset ratio not exceeding 40 percent, in conjunction with a
sales test result that shows that compliance costs are less than 5 percent of sales ("Affordable") or
between 5 and 10 percent ("Moderate"). "Stress" impacts are associated with negative cash flow
or if the post-compliance debt-to-asset ratio exceeds 40 percent, or sales test results that show
costs equal to or exceeding 10 percent of sales. More detail on this classification scheme is
provided in Section X.F.1.
EPA is proposing that the proposed regulations are economically achievable by small
businesses in the livestock and poultry sectors. The results of this analysis are presented in Tables
10-18 and 10-19. As defined for this analysis, EPA's analysis indicates that the proposed
requirements are economically achievable to all affected small businesses in the beef, veal, heifer,
dairy, hog, and egg laying sectors ("Affordable" and also "Moderate"). Moderate impacts may be
incurred by small businesses in some, sectors, but these impacts are not associated with
operational change at the CAFO. Under the two-tier structure, EPA expects that there are no
small businesses in the turkey sector, as defined for this analysis. Under the three-tier structure,
EPA expects that there are an estimated 500 small businesses in the turkey sector (operations with
16,500 to 25,000 birds) (Table 10-17).
EPA's IRFA analysis indicates that the proposed requirements will not result in financial
stress to any affected small businesses in the veal, heifer (two-tier only), hog, dairy, egg laying,
and turkey sectors. In the beef, heifer (three-tier only), and broiler sectors, however, EPA's
analysis indicates that proposed regulations could result in financial stress to some small
businesses, making these businesses vulnerable to closure. Overall, these operations comprise
about 2 percent of all affected small CAFO businesses. For the two-tier structure, EPA estimates
that 10 small beef operations and 150 small broiler operations will experience financial stress.
For the three-tier structure, EPA estimates that 40 small beef and heifer operations and 280 small
broiler operations will experience financial stress. Small broiler facilities with stress impacts are
larger operations with more than 1,000 AU under both tier structures. Small cattle and heifer
operations with stress impacts are those that have a ground water link to surface water. This
analysis is conducted assuming that no costs are passed through between the CAFO and processor
314
-------
segments of these industries. Based on the results of this analysis, EPA is proposing that the
proposed regulations are economically achievable to small businesses in these sectors.
EPA believes that the small business impacts presented are overstated for reasons
summarized below. As noted in the Panel Report, EPA believes that the number of small broiler
operations is overestimated. In the absence of business level revenue data, EPA estimated the
number of "small businesses" using the approach described in Sections XJ.l and X.J.2. Using
this approach, virtually all (>99.9 percent) broiler operations are considered "small" businesses.
This categorization may not accurately portray actual small operations in this sector since it
classifies a 10-house broiler operation with 260,000 birds as a small business. Information from
industry sources suggests that a two-house broiler operation with roughly 50,000 birds is more
appropriately characterized as a small business in this sector. This information is available in the
rulemaking record. Therefore, it is likely that the number of small broiler operations may reflect a
number of medium and large size broiler operations being considered as small entities. (During
the development of the rulemaking, EPA did consult with SBA on the use of an alternative
definition for small businesses in all affected sectors based on animal inventory at an operation.
Following discussions with SBA, EPA decided not to use this alternative definition. This
information is provided in.the record.)
EPA believes that the use of a costs-to-sales comparison is a crude measure of impacts on
small business in sectors where production contracting is commonly used, such as in the broiler
sector (but also in the turkey, egg, and hog sectors, though to a lesser extent). As documented in
the Economic Analysis, lower reported operating revenues in the broiler sector reflect the
predominance of contract growers in this sector. Contract growers receive a pre-negotiated
contract price that is lower than the USDA-reported producer price, thus contributing to lower
gross revenues at these operations. Lower producer prices among contract growers is often offset
by lower overall production costs at these operations since the affiliated processor firm pays for a
substantial portion of the grower's annual variable cash expenses. Inputs supplied by the
integrator may include feeder pigs or chicks, feed, veterinary services and medicines, technical
support, and transportation of animals. These variable cash costs comprise a large component of
annual operating costs, averaging more than 70 percent of total variable and fixed costs at
livestock and poultry operations. The contract grower also faces reduced risk because the
integrator guarantees the grower a fixed output price. Because production costs at a contract
grower operation are lower than at an independently owned operation, a profit test (costs-to-profit
comparison) is a more accurate measure of impacts at grower operations. However, financial data
are not available that differentiate between contract grower and independent operations.
EPA's analysis also does not consider a range of potential cost offsets available to most
operations. One source of potential cost offset is cost share and technical assistance available to
operators for on-site improvements that are available from various state and federal programs,
such as the Environmental Quality Incentives Program (EQIP) administered by USDA. These
programs specifically target smaller farming operations. Another potential source of cost offset is
manure sales, particularly of relatively higher value dry poultry litter. More information on how
these potential sources of cost offset would reduce the economic impacts to small operations is
315
-------
described in Section X.F.1 in this document and also in the Economic Analysis. EPA's analysis
also does not account for eventual cost passthrough of estimated compliance costs through the
marketing chain under longer run market adjustment. Finally, this analysis does not take into
account certain non-economic factors that may influence a CAFO's decision to weather the boom
and bust cycles that are commonplace in agricultural markets. These other industry-specific
factors are discussed in more detail throughout the Economic Analysis.
EPA expects that the proposed regulations will benefit the smallest businesses in these
sectors since it may create a comparative advantage for smaller operations (less than 500 AU),
especially those operations which are not subject to the regulations. Except for the few AFOs
which are designated as CAFOs, these operations will not incur costs associated with the
proposed requirements but could benefit from eventual higher producer prices as these markets
adjust to higher production costs in the longer term.
As detailed in Sections XD.G and XULB of this document, EPA convened a Small
Business Advocacy Review Panel during the development of this rule. As described in the Panel
Report, EPA considered certain regulatory alternatives to provide relief for small businesses.
Some of these alternatives are discussed in other sections of this document, including Section VH
and Section VDI. These alternative options are summarized in the following section and are
described in more detail in Section 9 of the Economic Analysis.
Table 10-18. Results of EPA's Small Business Analysis Under the BAT Option/Scenario 4a
Sector
Fed Cattle
Veal
Heifer
Dairy
Hogs
Broilers
Layers
Turkeys
TOTAL
Number
of Small
CAFOs
1,390
90
800
50
300
9,470
200
0
10,550
Affordable
Moderate
Stress
Affordable
Moderate
Stress
Zero Cost Passthrough
(Number of Operations)
1,130
90
680
40
300
1,860
200
0
4300
250
0
120
10
0
7,460
0
0
7,840
10
0
0
0
0
150
0
0
160
(% Affected Operations)
81%
100%
85%
80%
100%
20%
100%
NA
41%
18%
0%
15%
20%
0%
79%
0%
NA
74%
1%
0%
0%
0%
0%
2%
0%
NA
2%
Source: USEPA. Impact estimates shown include impacts to designated operations. Option/Scenario definitions
provided in Table 10-2. Category definitions ("Affordable," "Moderate" and "Stress") are provided in Section X.F.1.
Numbers may not add due to rounding. NA = Not Applicable.
316
-------
""Total" does not adjust for operations with mixed animal types, for comparison purposes, to avoid understating
costs at operations with more than one animal type that may incur costs to comply with the proposed requirements
for each type of animal that is raised on-site. The number of CAFOs shown includes expected defined CAFOs only
and excludes designated facilities.
*
Table 10-19. Results of EPA's Small Business Analysis Under the BAT Option/Scenario 3
Sector
Fed Cattle
Veal
Heifer
Dairy
Hogs
Broilers
Layers
Turkeys
TOTAL
Number
of Small
CAFOs
1,490
140
980
50
300
13,410
590
500
14,630
Affordable
Moderate
Stress
Affordable
Moderate
Stress
Zero Cost Passtbrougb
(Number of Operations)
1,100
140
800
40
300
1,910
590
460
5340
380
0
150
10
0
11,220
0
40
11,800
10
0
30
0
0
280
0
0
320
(% Affected Operations)
74%
100%
82%
80%
100%
14%
100%
92%
37%
26%
0%
15%
20%
0%
84%
0%
8%
81%
1%
0%
3%
0%
0%
2%
0%
0%
2%
Source: USEPA. Impact estimates shown include impacts to designated operations. Option/Scenario definitions
provided in Table 10-2. Category definitions ("Affordable," "Moderate" and "Stress") are provided in Section X.F.1.
Numbers may not add due to rounding. NA = Not Applicable.
"Total" does not adjust for operations with mixed animal types, for comparison purposes, to avoid understating costs
at operations with more than one animal type that may incur costs to comply with the proposed requirements for each
type of animal that is raised on-site. The number of CAFOs shown includes expected defined CAFOs only and
excludes designated facilities.
4. Regulatory Relief to Small Livestock and Poultry Businesses
EPA proposes to focus the regulatory revisions in this proposal on the largest operations,
which present the greatest risk of causing environmental harm, and in so doing, has minimized the
effects of the proposed regulations on small livestock and poultry operations. First, EPA is
proposing to establish a two-tier structure with a 500 AU threshold. Unlike the current
regulations, under which some operations with 300 to 500 AU are defined as CAFOs, operations
of this size under the revised regulations would be CAFOs only by designation. Second, EPA is
proposing to eliminate the "mixed" animal calculation for operations with more than a single
animal type for determining which AFOs are CAFOs. Third, EPA is proposing to raise the size
standard for defining egg laying operations as CAFOs.
317
-------
EPA estimates thai under the co-proposed alternatives, between 64 percent (two-tier) and
72 percent (three-tier) of all CAFO manure would be covered by the regulation. (See Section
FV.A of this preamble.) Under the two-tier structure, the inclusion of all operations with more
than 300 AU instead of operations with more than 500 AU, the CAFO definition would result in
13,800 additional operations being regulated, along with an additional 8 percent of all manure.
An estimated 80 percent of these additional 13,800 CAFOs are small businesses (about 10,870
CAFOs). EPA estimates that by not extending the regulatory definition to operations with
between 300 and 500 AU, these 10,870 small businesses will not be defined as CAFOs and will
therefore not be subject to the proposed regulations. The additional costs of extending the
regulations to these small CAFO businesses is estimated at almost $150 million across all sectors.
The difference in costs between the two-tier and the three-tier structures may be approximated by
comparing the estimated costs for these regulatory options, which are shown in Table 10-5. Also,
under the two-tier structure, EPA is proposing to raise the size standard for defining egg laying
operations as CAFOs. This alternative would remove from the CAFO definition egg operations
with between 30,000 and 50,000 laying hens (or 75,000 hens) that under the current rules are
defined as CAFOs, if they utilize a liquid manure management system.
In addition, under both co-proposed alternatives, EPA is proposing to exclude mixed
operations with more than a single animal type. The Agency determined that the inclusion of
these operations would disproportionately burden small businesses while resulting in little
additional environmental benefit. Since most mixed operations tend to be smaller in size, this
exclusion represents important accommodations for small businesses. If certain of these smaller
operations are determined to be discharging to waters of the U.S., States can later designate them
as CAFOs and subject them to the regulations.
318
-------
XL What are the Environmental Benefits of the Proposed Revisions?
A. Non-Water Quality Environmental Impacts
The regulatory options developed for this proposed rule are intended to ensure the
protection of surface water in and around animal feeding operations. However, one or more of the
requirements included in these options may also have an impact on the amount and form of
compounds released to air, as well as the energy that is required to operate the feedlot. Under
sections 304(b) and 306 of the CWA, EPA is to consider the non-water quality environmental
impacts (NWQI) when setting effluent limitations guidelines and standards. This section
describes the methodology EPA used to estimate the NWQI for each of the options considered for
this proposed rule. These non-water quality environmental impacts include:
• Air emissions from the feedlot operation, including animal housing and animal waste
storage and treatment areas;
• Air emissions from land application activities;
• Air emissions from vehicles, including the off-site transport of waste and on-site
composting operations; and
• Energy impacts from land application activities and the use of digesters.
For each regulatory option, EPA estimated the potential for new water pollution control
requirements to cause cross-media pollutant transfers. Consistent with the approach used to
estimate compliance costs, EPA used a model-facility approach to estimate NWQIs and to define
baseline conditions. Industry-level non-water quality impacts for each animal sector (i.e., beef,
dairy, swine, and poultry) were then estimated by multiplying the model farm impacts by the
number of facilities represented by that model farm. These results are presented in Tables 11-1
through 11-4 for the population of operations defined as CAFOs under the two-tier structure
(operations with more than 500 AU) and Tables 11-5 through 11-8 for the population defined as
CAFOs under the three tier structure. For details on the derivation of the model farms, including
definitions of geographic location, method of determining model farm populations, and data on
waste generation, see the Technical Development Document.
1. Sources of Air Emissions
Animal feeding operations generate various types of animal wastes, including manure
(feces and urine), waste feed, water, bedding, dust, and wastewater. Air emissions are generated
from the decomposition of these wastes from the point of generation through the management and
treatment of these wastes on site. The rate of generation of these emissions varies based on a
319
US EPA Headquarters Library
Mail code 3201
1200 Pennsylvania Avenue NW
Washington DC 20460
-------
number of operational variables (e.g., animal species, type of housing, waste management
system), as well as weather conditions (temperature, humidity, wind, time of release). A fraction
of the air emissions from AFOs are subsequently redeposited on land or in surface waters. This
atmospheric redeposition in turn can be a source for water quality impacts.
a. Air Emissions from the Feedlot Operation
Animal housing and manure management systems can be a significant source of air
emissions. Little data exist on these releases to allow a complete analysis of all possible
compounds. For this proposed rule, EPA has focused on the release of greenhouse gases
(methane, carbon dioxide, and nitrous oxide), ammonia, and certain criteria air pollutants (carbon
monoxide, nitrogen oxides, volatile organic compounds, and paniculate matter)..
i. Greenhouse Gas Emissions from Manure Management Systems
Manure management systems, including animal housing, produce methane (CH4), carbon
dioxide (CO,), and nitrous oxide. (N2O) emissions. Methane and carbon dioxide are produced by
the anaerobic decomposition of manure. Nitrous oxide is produced as part of the agricultural
nitrogen cycle through the denitrification of the organic nitrogen in livestock manure and urine.
Greenhouse gas emissions for methane and nitrous oxide were estimated for this proposed rule
based on methodologies previously used by EPA's Office of Air and Radiation. Emission
estimates for carbon dioxide are based on the relationship of carbon dioxide generation compared
to methane generation.
Methane
Methane production is directly related to the quantity of waste, the type of waste
management system used, and the temperature and moisture of the waste. Some of the regulatory
options evaluated for animal feeding operations are based on the use of different waste
management systems which may increase or decrease methane emissions from animal operations.
In general, manure that is handled as a liquid or in anaerobic management systems tends to
produce more methane, while manure that is handled as a solid or in aerobic management systems
produces little methane. The methane producing capacity of animal waste is related to the
maximum quantity of methane that can be produced per kilogram of volatile solids. Values for
the methane producing capacity are available from literature and are based on animal diet. EPA
estimated methane emissions for each type of waste management system included in the cost
models. These values vary by animal type, geographic region (the methane conversion factor is a
function of the mean ambient temperature), and type of waste management system (e.g., anaerobic
lagoon, composting, drylot, stacked solids, or runoff storage pond).
Methane is also produced from the digestive processes of ruminant livestock due to enteric
fermentation. Certain animal populations, such as beef cattle on feedlots, tend to produce more
methane because of higher energy diets that produce manure with a high methane-producing
capacity. However, since the proposed regulatory options do not impose requirements forcing
320
-------
CAFOs to use specific feeding strategies, potential impacts on enteric fermentation methane
emissions are speculative and were not estimated.
Carbon Dioxide
Carbon dioxide is a naturally occurring greenhouse gas and is continually emitted to and
removed from the atmosphere. Certain human activities, such as fossil fuel burning, cause
additional quantities of carbon dioxide to be emitted to the atmosphere. In the case of feedlot
operations, the anaerobic degradation of manure results not only in methane emissions, but also
carbon dioxide emissions. These carbon dioxide emissions due to anaerobic degradation were
estimated for each regulatory option. In addition, under Option 6, large dairies and swine
operations would install and operate anaerobic digestion systems with energy recovery units. The
biogas produced in the digester is burned in an engine to recover energy. EPA's emission
estimates for Option 6 include the carbon dioxide produced during this combustion process.
Nitrous Oxide
The emission of nitrous oxide from manure management systems is based on the nitrogen
content of the manure, as well as the length of time the manure is stored and the specific type of
system used. In general, manure that is handled as a liquid tends to produce less nitrous oxide
than manure that is handled as a solid. Some of the regulatory options evaluated for animal
feeding operations are based on the use of waste management systems which may increase nitrous
oxide emissions from animal operations. Values for total Kjeldahl nitrogen (TKN), a measure of
organic nitrogen plus ammonia nitrogen, vary by animal type and are typically available in the
literature for animal waste. EPA estimated nitrous oxide emissions by adjusting these literature
values with an emission factor that accounts for the varying degree of nitrous oxide production,
based on the type of manure management system.
«. Ammonia Emissions and Other Nitrogen Losses from Housing and Manure
Management Systems
Much of the nitrogen emitted from animal feeding operations is in the form of ammonia.
Ammonia is an important component responsible for acidification and ovemutrification of the
environment. The loss of ammonia occurs at both the point of generation of manure, typically
from urine, as well as during the storage and treatment of animal waste. As the pH of a system
rises above 1, nitrogen in the form of ammonium is transformed into ammonia. A number of
variables affect the volatilization of ammonia from animal waste, including the method in which
the waste is stored, transported, and treated on site and the environmental conditions present (e.g.,
temperature, pH, wind).
Animals at the feedlot operation may be housed in a number of different ways that have an
impact on the type and amount of nitrogen emissions that will occur. Some animals are housed in
traditional confined housing (e.g., tie stall barns, freestall barns), while others are housed in
outdoor areas (e.g., drylots, paddocks). Studies have shown that the type of housing used has a
321
-------
great effect on the emission of ammonia. Management of waste within the housing area also
affects emissions (e.g., litter system, deep pit, freestall).
Anaerobic lagoons and waste storage ponds are a major component of the waste
management systems. EPA has estimated volatilization of total nitrogen and ammonia from
lagoons and ponds based on emission factors published in the scientific literature.
«/. Criteria Air Emissions from Energy Recovery Systems
Option 6 requires the implementation of anaerobic digestion systems with energy recovery
for large dairy and swine operations. The operation of the digestion system greatly reduces the
emission of methane through the capture of the biogas. However, the use of the biogas in an
energy recovery system does generate certain criteria air pollutants when burned for fuel.
Literature values for emission factors for carbon monoxide (CO), oxides of nitrogen (NOx), and
volatile organic compounds (VOCs) were used to estimate releases of criteria air pollutants.
b. Air Emissions from Land Application Activities
Animal feeding operations generate air emissions from the land application of animal waste
on cropland. Air emissions are primarily generated from the volatilization of ammonia at the
point the material is applied to land. Additional emissions of nitrous oxide are liberated from
agricultural soils when nitrogen applied to the soil undergoes nitrification and denitrification.
Loss through denitrification is dependent on the oxygen levels of the soil to which manure is
applied. Low oxygen levels, resulting from wet, compacted, or warm soil, increase the amount of
nitrate-nitrogen released to the air as nitrogen gas or nitrous oxide. The analysis of air emissions
from land application activities for this proposed rule focused on the volatilization of nitrogen as
ammonia because the emission of other constituents is expected to be less significant.
The amount of nitrogen released to the environment from the application of animal waste is
affected by the rate and method in which it is applied, the quantity of material applied, and site-
specific factors such as air temperature, wind speed, and soil pH. There is insufficient data to
quantify the effect of site-specific factors.
Since regulatory options in this proposed rule do not dictate particular application methods,
EPA assumed that the application methods used by animal feeding operations will not
significantly change from baseline.
Because EPA expects application methods to remain stable, EPA assumed that only the
quantity of waste applied to cropland will change. On-site nitrogen volatilization will decrease as
the quantity of waste applied to cropland decreases. The reductions of nitrogen volatilization will
be the result of reductions in the total amount of manure applied on site. However, when both on-
site and off-site nitrogen volatilization are considered, total nitrogen volatilization from manure is
expected to remain constant. The movement of waste off -site changes the location of the
322
-------
nitrogen releases but not the quantity released. On-site, however, the volatilization rate will
decrease, reflecting the decrease in the quantity of applied waste.
EPA used the same assumptions that were used to estimate compliance costs for land
application of animal waste in order to estimate the change in air emissions from the application
of nitrogen under baseline conditions and for each regulatory option. The cost methodology
defines three types of animal feeding operations: Category 1 facilities currently have sufficient
land to apply all manure on site; Category 2 facilities currently do not have enough land to apply
all manure on site; and Category 3 facilities currently apply no manure on site (this manure is
already being spread offsite). Neither Category 1 nor Category 3 facilities will show a change in
nitrogen emission rates from the land application of animal manure under the proposed regulatory
options. However, Category 2 facilities will be required to apply their waste at the agricultural rate
under the regulatory options, thus reducing the amount of manure applied on site and
subsequently reducing air emissions from on-site land application.
Under a phosphorus-based application scenario, facilities will have to apply supplemental
nitrogen fertilizer to meet crop nutrient needs. The cost model assumes facilities will apply
commercial ammonium nitrate or urea. The application of commercial fertilizer represents an
increase in applied nutrients on site. While losses from applied commercial nitrogen are expected
to be less than those from applied manure, data from Ohio State Extension states that both of
these fertilizers can experience losses through denitrification if placed on wet or compacted soils.
There is also a possibility that urea will volatilize if it is dry for several days after soil application.
Ammonium nitrate fertilizer (when injected) is less likely to volatilize because it quickly converts
to nitrate nitrogen which will not volatilize.
EPA estimated a "worst-case scenario" for ammonia emissions due to commercial fertilizer
application based on a 35% loss of applied nitrogen.
c. Air Emissions from Vehicles
i. Off-Site Transportation
All options are expected to result in increasing the amount of manure hauled off-site, at
least for some operations. Consistent with the cost model, EPA has grouped operations into three
possible transportation categories. Category 1 facilities currently land apply all manure on site
and Category 3 facilities currently transport all manure off site. Neither Category 1 nor Category
3 facilities require additional transportation of manure and will not have an increase in criteria air
emissions. Category 2 facilities do not have enough land to apply all waste on site and do not
currently transport waste. These facilities are expected to transport manure off site and therefore
will have an increase in the amount of criteria air pollutants generated by the facility.
Hauling emissions estimates are based on calculations of the annual amount of waste
generated, the annual number of miles traveled, and truck sizes. The number of trucks, number of
trips per truck, the amount of waste and transportation distance are all calculated within the cost
323
-------
model. Vehicle emissions are calculated based on emission factors for diesel-fueled vehicles
presented in "Compilation of Air Pollution Emission Factors" (AP-42). Estimates were calculated
for volatile organic compounds, nitrogen oxides, paniculate matter, and carbon monoxide.
ii. On-Site Composting Activities
Farm equipment used for on-site composting activities also affect the generation of air
emissions, although composting of waste may also result in a reduction in transportation air
emissions. While composting waste prior to hauling offsite can increase the marketability of the
manure and may decrease hauling costs per ton of waste for some operations, not all operations
can be expected to realize such benefits. Under Option 5, beef and dairy operations would be
required to compost their solid manure. The criteria air emissions from on-site composting of
manure were estimated for beef and dairy operations under Option 5. The source of criteria air
emissions from composting are tractors and associated windrow-turning equipment.
2. Summary of Air Emission Impacts
Option 1: Emissions of methane and carbon dioxide from beef and dairy operations
decrease under Option 1 due to the addition of solids separation in the waste management system.
The separated solids are stockpiled rather than held in waste storage ponds or anaerobic lagoons.
Anaerobic conditions, and the potential of the volatile solids to convert to methane, decrease
using this drier method of handling the waste. However, this method also results in greater
conversion of nitrogen to nitrous oxide. An increase in nitrous oxide emissions from dairies
occurs for this reason. Greenhouse gas emissions from dry poultry operations (broilers, turkeys,
and dry layers) do not change under Option 1 since no change to the waste handling practices are
expected. These operations are already handling the waste as a dry material. Although indoor
storage of poultry litter is included in the options, it is not expected to significantly alter the air
emissions from the litter. Emissions of greenhouse gases from swine and wet poultry operations
also do not change since no change to the waste handling practices are expected.
Ammonia emissions occur primarily from liquid waste storage areas, including ponds and
lagoons. Under Option 1, all facilities are required to contain surface runoff from the feedlot,
thereby increasing ammonia emissions from smaller beef and dairy CAFOs that do not currently
have runoff control ponds or lagoons. Ammonia emissions for the poultry and swine sectors are
not expected to change under Option 1.
Option 1 requires the application of animal waste to cropland at agronomic rates for
nitrogen. Animal feeding operations that have excess nitrogen for their crops will need to
transport their waste to another location. The generation of criteria pollutants for all animal
sectors are expected to increase from baseline to Option 1 due to the additional transportation of
waste off-site.
324
-------
Options 2-4 and 7; No change in emissions of methane, carbon dioxide, or nitrous oxide
occurs for all sectors relative to Option 1 because no significant changes in waste management are
anticipated. Likewise, no large changes are expected for ammonia emissions.
These options require the application of animal waste to cropland at agronomic rates for
phosphorus. Animal feeding operations that have excess phosphorus for their crops will need to
transport their waste to another location. The generation of criteria pollutants are expected to
increase from Option 1 to these options because more waste will need to be transported off site to
meet agronomic rates for phosphorus.
Option 5A; Option 5A does not apply to the beef and dairy sectors. Emissions of
greenhouse gases at swine operations significantly decrease under Option 5A, due to covering
lagoons. The swine operations are expected to flare the gas that is generated in the lagoon. The
methane will be converted, although carbon dioxide emissions will increase. In addition, the
emissions of NOx and SOx increase because of the flaring of biogas collected from the covered
lagoon.
On-site ammonia emissions at swine operations will decrease because the lagoon cover
prevents the ammonia from leaving solution. Ammonia in the effluent from the covered lagoon
will volatilize, however, soon after it is exposed to air.
Option SB; Emissions of greenhouse gases from beef and dairy operations increase under
Option 5B (i.e., mandated technology of composting), relative to Options 1 and 2. Compost
operations include the addition of organic material to the waste pile'to aid in the decomposition of
the waste. This additional material also decomposes and contributes to increased methane
emissions compared to other options. In addition, compost operations liberate more methane than
stockpiles because the windrows are turned regularly. Stockpiles tend to form outer crusts that
reduce the potential for air emissions to occur.
Emissions of greenhouse gases for swine operations under Option 5B are less than Option 2
due to the conversion of liquid manure handling systems (e.g., flush lagoons) to dry manure
handling systems. Dry manure generates less methane than liquid systems. However, the
emissions are higher than either Options 5A or 6, which allow liquid manure systems, but include
destruction of the biogas generated from those systems.
Ammonia emissions at beef and dairy operations are expected to increase. During
composting operations, the aeration of the compost pile liberates nitrogen in the form of
ammonia. Ammonia emissions at swine operations are expected to decrease compared to Option
2, because of liquid manure systems converting to dry operations.
Option 5B generates the least criteria air pollutants compared to any other option for beef
operations. Although composting operations include the operation of turning equipment which
uses fuel and generates additional tractor air emissions, the process reduces the overall volume of
waste to be transported. However, for dairy, additional organic material is added to the compost
325
-------
pile, which results in slightly higher transportation emissions than Option 2. Option 5B emissions
of criteria pollutants for poultry operations are equal to the emissions for Options 2-4 and 7, since
there is no difference in the amount of waste transported off site. The emissions from swine
operations are significantly lower than Option 2 because the conversion of flush operations to dry
housing significantly decreases the volume of waste to be transported off site.
Option 6; Relative to Option 2, only the dairy and swine sectors see any changes in air
emissions. Emissions of methane from swine and dairy waste under Option 6 significantly
decrease due to the addition of the anaerobic digester. A significant portion of the methane
generated is collected as biogas and converted to energy. Drylot areas at dairies, however, will
continue to generate methane that is uncollected. Carbon dioxide emissions significantly increase
as methane is converted during the combustion process.
Although waste at large swine and dairy CAFOs will be digested, no significant changes to
ammonia emissions are expected. The ammonia nitrogen, which is highly soluble, remains in
solution in the digester. When the digester effluent is stored in an open lagoon, the ammonia will
then be released.
Emissions of criteria pollutants from swine and dairy operations increase due to the
addition of anaerobic digestion for large dairy operations. The digester collects biogas, which is
subsequently combusted and converted into VOCs, NOx, and CO. Hydrogen sulfide contained in
swine waste will be convened to Sox.
326
-------
..^
^i
O
O
10
A!
V
fa
Two-Tic
y*s
5
•a
s
*£
s
^c
^M
t
0
s~^
&
'u
c
•5
"u
15
V
£
CV
??
cy
•a
ce
C
e
J
£
•
i
e
c
5
'a
1
i^
e
*«^
g
5
e
W
^
ir.
~
ff
w
J
5-
e
jr
M
I
Q"
^^
C
C
|
C
1
—
1
>
| Air Emissions
S
S
«*!
S
S
0
S
p
1 Methane (CII4)
(«B/yr)
0
o
§
0
*
o
r",
O
r.
1 Carbon Dioxide
(CO,)(Gg/yr)
fn
*
0
S
?,
T,
F-.
S
1 Nitrous Oxide
{N20)(G&/yr)
oo
VO
-------
f
0
1
a
y^
Li
P^
i
i£
H
5
T3
JB
^3
K
"I
P
C.
O
£.'
a
c
as
«
c
•c
a
I
i
i-<
C8
H
c
1
1"
R
a
If
«
*"*
9
O
VC
g
"t
O
SH
B
a
0
•<
>n
0
I
%^
f*i
£
•3.
*^
M
1
w
1
5"
u
C
a
| Air Kmissions
eo
=
3
oo
OC
-
00
oo
0
1 Methane (CII4)
(Gg/yr)
_
••
oo
o
to
«-.
R
ir.
t*.
1 Carbon Dioxide (CO2)
1 (Gg/yr)
eo
oo
s
00
oe
OC
00
:
Tt
1 Nitrous Oxide (N2O)
|(GR/yr)
00
i
r-
8
ts
O
rJ
O
cs
§
IS "
(Ammonia (Nil,)
(1000 Tons/yr)
s
4.
C
1
n
CO
S
4
O
c
1
n
v>
u
c
%
CO
r-
*•*
4
4d
s
CO
t/i
4
4
4>
CQ
U
Z
(Fuel Usage
| (1000 Galions/yr)
oo
es
m
-------
D
•<
o
in
Al
*••
1
S
«tf
c^
i
H
o>
£
V
•u
f-
perations in
fl)
CA
b.
e
^
f^'
td
•B
C
B
"35
.2
[V^
»
fO
1
^«»
«
^
s
j-
I
s
>T.
Regulator
|S»
/wo,
W
«
fe
1
^^
e
g
•s
O
Option 5A
•*
e
1
W
5-
r*
1
**
c
i.
«
i
l
| Air Emissions
00
CN
3
00
00
oo
oo
CM
DC
CN
00
CN
00
CN
OO
CN
<-^
1 Methane (CII
|«;R/yr)
1
f>
r»-
o
i»-
•*
1
0
CN
O
CN
*
§
•S
1 Carbon Dioxi
(C01)(GB/yr)
d
•*•
o
r,
O
u-.
0
u".
in
O
v%
0
1 Nitrous Oxide
|(NjQ)(G^rr)
u-i
CO
O
cs
g-
f".
00
CN
00
fN
00
CN
CM
OO
CN
m?~*
1 Ammonia (NI
(1000 Tons/yr
o
o
CN
O
g
S
S
0
r-
i5
•c
*f
e S
1 Hydrogen Sul
(II2S)(1000T
t*\
+
.E
1
a
^^
^
Baseline
o
+
g
ffl
Baseline + 50
Baseline + 3 1
"""
+
u
c
V.
3
_
o
c
y.
a
CM
+
e
1
s
g
«• 'E
•s &
Volatile Orga
Compounds
(VOCs)(Toin
in
•f
g
«J
tn
a
+
V O
||
CO
ff>
\e
*
g
1
a
+
gs
:= t*i
8«P
ca *~
a
Baseline -f 115
V.
-f
o
c
•5
ra
CQ
•n
*^
u
g
n
5
+
g
fS
0
£
1 Nitrogen Oxit
1 (Tons/yr)
CM
U
_e
"3
S
4.
g
1
a
+
g
1
0
Baseline + 4
Baseline + 2
CM
M
n
ffl
CN
+
U
C
"•
ffl
e>
+
J
0
U
z
b
S f
1 Paniculate M
|(PM)(Tons/yi
S
o
+
u
E
%
0
O
Baseline H
+
v
1
0
Baseline + 590
Baseline + 360
c".
+
g
a
C3
ffl
S
u
1
0
8
+
.1
1
s
ffl
g
•K
X >?N
Carbon Mono
|(CO)(Tons/yt
1
0
r-
.1
ffl
u
3
0
Baseline + 59
Baseline
c
1
£
u
vi
0
g
*
£
g
y»"N
1 Sulfur Oxides
(1000 Tons/yr
&
i
.1
03
•f s~.
0 2-
g
Tu
3
ffl
Baseline
Basefinc
J
0
o
73
T
fffc
1 Electricity Us
[(lOOOkW-hr/:
CM
+
g
%
ffl
!C
Baseline
•*
+
g
1
0
Baseline + 290
Baseline + 121
^^
CS
+
g
K
a
0
CM
~*
u
.£
ffl
v>
vo
+
g
1
0
U
-g.
^>
[Fuel Usage
[(lOOOGadoas,
ON
01
-------
D
i
Al
I
3
9
V3
•S>
H
e
H
V
^
u
e
BO
Operation
1
i
w
J 3
«
V
=
S3
M
§
1
^•^
• MB
•
JJ
C
1.
r
<:
I
i
o
VD
B
1
S
•«
e
^
O
•f
•n
5
O
I
£
I
O
M
e
|
M
C
1
I
S
s»
1 Air Emissions
0
c—
P
ts
NO
O
I—
®
o
o
K
1 Methane (CII4)
(Gg/yr>
,
o
S
2
jj?
M
:
o \
9
O
R •
o
[ Carbon Dioxide
[(C02)(Gg/yr) .
o
S
r*-
>c
£
\e
•o
o
^
1 Nitrous Oxide
|(N20)(GB/yr)
£
f
2
1/1
z
-
r-
r-
»^
^^
S i»
•- i
e e
g o
E o
< C
i
n
CO
tasclinc + 9
o>
&>
.=
K
oa
o
*
c
os
Baseline +
C*
•4-
Baseline
e>
+
u
c
%
^
Baseline -
u
Volatile Organic
Compounds
(VOCs)(Tons/yr)
ve
1
"
CO
ascline + 36
BQ
fn
+
c
•3
u o
S
ta
Baseline + 3
VO
i«".
Baseline 4
(^
+
u
c
ffl
<<-.
Baseline 4
y
1 Nitrogen Oxides
|(Tons/yr)
+
.1
a
GO
8
CO
^*
*
.=
Jj
GO
^,
w
c
1
09
Baseline +
^
4-
Baselinc
-™
+
u
c
ea
0
a.
Baseline -
U
z
1 Paniculate Matter
(PM)(Tons/yr)
o
u
.E
e
V
c
1
ea
0
+
8
•3
§
n
o
4.
u
m
o
u
oa
o
Baseline +
o
u
1
Baseline +
^
z
1 Carbon Monoxide
(CO)(Tons/yr)
1
i
1
m
Baseline
8
TJ
3
8
*5
CO
Baseline
m
c
"3
%
0
A)
C
1
CQ
rj
Electricity Usage
(kW-hr/yr)
O **s
«,
.|!n
•S3
CD
V rr,
r\l
CO *
dJ
s K
T •H
CB
^.
n
U
— cs
n
+
u
.E t-
1*
S
U
1 Fuel Usage
1 (1000 Gallons/yr)
-------
?
CM
S
£
2E
TJ
c
I
C/J
f=
1
1=
V
t.
•c
,0
5
u
O
CS
,0
CM
1
fe
C
*••
•c
SB
e
*«*i
K
i.
*M«
I
1
t
_£
S
Option 7 j
I
IJJJJ
O
E£
V)
1
O
IA
e
_e
Jr
W
e
1
Option 3
g
t
§
0.
g
"S
*
5
Air Kinissions
f>
S
(M
r~.
b
1
tN
S
r-.
S
s
s
s
o
IN
d
t—
1 Methane (CH<)
|«'B/yr)
oo
00
00
ts
00
IT".
oc
oc
ir,
oc
00
cs
oo
oc
OO
00
fM
§
1 Carbon Dioxide
(CO,)(Gg/yr)
I
z
fN
m
0
1
w-.
f.
fN
W~,
?!
tsi
r-.
1 Nitrous Oxide
KNzOMGg/yr)
1
(M
OC
^**
ir.
00
rn
O*
p'.
ir!
653382
oc
f'
s
o
0
g
0
Total KjcldhI
Nitrogen (TKN)
(Tons/yr)
in
«
m
S
§
(N
S
3
r-.
V9
vO
O
i
f»5
VO
vi
^
S
X
1 Ammonia
(Nil,) (Tons/yr)
Baseline + 1
282
oo
S.
1
03
2
1
a
ffi
(N
00
fM
Baseline +
fM
S
+
g
H
a
tM
ts
I
1
a
4-
-S
1s
* .
^
Volatile Organic
Compounds
(VOCs)(Toas/yr)
Baseline + 1
1086 j
.£ oo
7j o
09
g
•f-
J
i
u
ffi
Baseline +
1086
^.
ffl
4.
s_
1^
m
2
1 Nitrogen Oxides
(NOx) (Tons/yr)
aseline + 22
eo
fM
U
1
ea
*
+
J
n
(N
CN
Baseline +
ascline + 22
ea
M
(S
ascline +
oa
oo
^™
+
c
CD
^
1 Pariiculate Matter
|(PM) (Tons/yr)
Baseline +
3367
Is
1**"'
oo
1
s
to
§
Baseline + 3
Baseline +
3367
«f.
||
0
^
Js
1"
a
^
Carbon Monoxide
| (CO) (Tons/yr)
| Energy Usage
Baseline +
2(706406
.!§
Tj C^
oa cs
4> O
^[ O
ISC
fiQ rs)
u s
IE
£0 (S
Baseline +
21706406
+ VO
CQ fS
•t- oo
u «r>
C T.
TS O
S5?
m 9
.£ ^
li
m "•
^
1 Fuel Usage
| (gallons/yr)
en
-------
ructure
0)
H
H
"
v
•c
C
D
§
2
0
MM
C3
Q
1
SJ
3
>>
«
•o
CS
s
missio
&d
b,
ve
^N
H
.
•3
c
£
R
I
1
e
i
ts
Ifi
g
1.
o
1
o
i
.£
C
O
1
1
s^
S
1
1
1 Air Emissions
GS
O
fM
0
0s
1
*
O
'00
M
[Methane (CH4)
|(«S/.vr)
00
in
{M
i
r~
oo
r-
00
n
oo
00
in •
VO
?
01
II
*
o
in
S
rt
(S
in
»
O
in
r-
m
t~
•<»
Nitrous Oxide (N2O)
(Gg/yr)
o
00
m
0
00
m
O
oo
In
O
00
5?
o
oo
m
O
00
m
§
f^.
vn
^
m
1 Total Kjeldhl
Nitrogen (TKN)
1 (Tons/yr)
r^
00
M
1
oo
«n
221407
|
01
(S
(S
1
,0
s
oo
1 Ammonia (NI1J
J (Tons/yr)
+
4>
I5
iseline 4 242
CQ
4
C (S
as
00
1
ca
00
S
"
CQ
oo
4
.5
CQ
— .
4
J
U
z
Volatile Organic
Compounds (VOCs)
(Tons/yr)
^
2£ 0*
seline 4 4377
CO
!-
CQ
—
®
+
1
CQ
line 4- 691
8
EC
PKM
iseline 4 69
CQ
_
00
i
cS
ca
U
z
Nitrogen Oxides
(NOx) (Tons/yr)
2
4
§
I
ca
aseline 4 14
CQ
«n
CQ
aseline 4
CQ
w
C
«g
CQ
(U
a
NO
1
CS
CQ
y
Particulate Matter
(PM) (Tons/yr)
+
U
12
CQ
seline 4 2647
ei
CQ
iS
pa
+
ca
js
CQ
j§ ***
J'~ in
U
Z
1 Carbon Monoxide
(CO) (Tons/yr)
W
4 —
u «n
.S S
•5 vo
M O
« VO
CQ —
Baseline 4
139,200,000)
-
u m
CQ-
j^ ^^
Baseline
1606695
o «n
CQ —
Baseline 4
16066951
II
CQ —
U
z
(Electricity Usage
(kW-hr/yr)
aj £^J
CD *"
Baseline 4
1440274
4 _
•J \Q
li
ca-
+
C 0s
Ig
S *
CQ *~
Baseline 4
1464917
||
CQ —
U
Z
Fuel Usage
(Gallons/yr)
en
en
-------
ructure
cc
b.
*7
H
<-
"C
3
!»
c
c
9
t-
D.
O
ti
£
t-
(U
5
§£
V
•c
es
e
1
is:
^
~
«
fc-
g
^
t
£
'ss
I
1
>
^^
SO
1
in
1
C
>tion 5 A
-------
cture
fe
*7
V
•S
OS
^5
I
g.
I
1
0
J
I
CD
\D
ts
£
\0
Metha
(Gg/yr)
00
CN
c<
o
tN
as
0
(N
oc
es
c\
p".
CO
ii
K
o
o
v
g/yr
Nit
in
CO
1
S
Tf
ro
«i
o ^~
Total Kj
Nitrogen
(Tons/yr
ITi
CO
5
Ammonia
(Nil,) (Tons/y
.1
A
03
r»
g
ffl
03
ffl
n
a
Org
nds
(T
Vola
Com
(VO
e 4- 21
n
0
CD
03
t
«
4-
.1
"3
£
n
I
"u
IS
03
is
Particulate Ma
(PM) (To
Is
ea
is
4> OO
in
CO
+
u
ffl
E
Baseline
n
03
ffl
g
n
Electricit
(kW-hr/y
line +
3365
03
89
Siri
-JS?
T1 m
us O
IS
a00
Baseline
893365
Ii
00
IS
03
gvS
CO
Fuel Usage
(Gallons/yr)
-------
3. Energy Impacts
The proposed regulatory options may result in increased energy use for operations that
currently do not capture their runoff or other process wastewater. These operations would need to
capture the feedlot runoff, divert it to a waste management system, and use this wastewater for
irrigation or dispose of it by some alternative means.
For the land application areas, the proposed regulatory options assume all CAFOs will
apply their manure and wastewater using agricultural application rates. In many instances this
means that facilities would have to limit the amount of manure applied to the land which may
result in decreased energy usage at the CAFO. However, total energy requirements for land
application increase under all options due to the increased transportation of waste off-site.
Additional energy is also required to operate composting equipment, and at swine CAFOs to
operate recirculating pumps to reuse lagoon effluent as flush water.
Option 6 includes the use of anaerobic digesters with energy recovery to manage animal
waste for large dairy and swine operations. Digesters require a continuous input of energy to
operate the holding tank mixer and an engine to convert captured methane into energy. The
energy required to continuously operate these devices, as well as the amount of energy generated
by the system, have been determined from the FarmWare model, which was also used for
estimating compliance costs. Under Option 6, EPA anticipates a net decrease in electricity use
due to the energy savings from methane recovery.
B. Quantitative and Monetized Benefits
In addition to costs and impacts, EPA also estimated the environmental and human health
benefits of today's proposed requirements. Benefits identified as a result of this proposed rule are
associated with improvements in water quality.
EPA is not currently able to evaluate all human health and ecosystem benefits associated
with water quality improvements quantitatively. EPA is even more limited in its ability to assign
monetary values to these benefits. The economic benefit values described below and in the
"Environmental and Economic Benefits of the NPDES/ELG CAFO Rules" (Benefit Report)
should be considered a subset of the total benefits of this rule and should be evaluated along with
descriptive assessments of benefits and the acknowledgment that even these may fall short of the
real-world benefits that may result from this rule. For example, the economic valuation considers
the effects of nitrogen, phosphorous, pathogens and sediment but does not evaluate the economic
impacts of metals or hormones which can produce significant adverse environmental impacts.
Within these confines, EPA analyzed the effects of current water discharges and assessed
the benefits of reductions in these discharges resulting from this proposed regulation. The CAFO
335
-------
industry waste effluents contain pollutants that, when discharged into freshwater and estuarine
ecosystems, may alter aquatic habitats, affect aquatic life, and adversely affect human health.
For this proposed rule, EPA conducted four benefit studies to estimate the impacts of
controlling CAFO manure. The first study is a national water quality model (National Water
Pollution Control Assessment Model) that estimates runoff from land application areas to rivers,
streams, lakes and impoundments in the U.S. This study estimates the value society places in
improvements in surface water quality associated with the different regulatory scenarios. Another
study examines the expected improvements in shellfish harvesting as a result of CAFO regulation.
A third study looks at incidences of fish kills that are attributed to animal feeding operations and
estimates the cost of replacing the lost fish stocks. A fourth study estimates the benefits
associated with reduced groundwater contamination. Each of these studies is described below.
1 Benefit scenarios
There are eight benefit scenarios under consideration, four scenarios(l, 2/3,4a and 4b)
using a nitrogen application rate and the same 4 scenarios using a phosphorus application rate.
Scenarios 1 and 2/3 have a three-tiered structure similar to the current rule. Tier 1 is 1,000 AU and
greater; Tier 2 is 300 - 999 AU; Tier 3 is less than 300 AU. Scenarios 4a and 4b have a two-tiered
structure. Under Scenario 4a, Tier 1 is 500 AU and greater; Tier 2 is less than 500 AU. Under
Scenario 4b, Tier 1 is 300 AU and greater; Tier 2 is less than 300 AU. EPA is co-proposing a
two-tier and a three-tier structure (phosphorus - Scenario 2/3 and Phosphorus - Scenario 4a).
Table 11-9 summarizes the regulatory scenarios considered in the benefits analysis.
Table 11-9. Regulatory Scenarios Considered in the Benefits Analysis
Regulator}'
Scenario
Baseline
Nitrogen -
Scenario 1
Nitrogen -
Scenario 2/3
Nitrogen -
Scenario 4a
Nitrogen -
Scenario 4b
Phosphorus
Scenario 1
Phosphorus
Scenario 2/3*
NPDES Revisions
CAFOs include any AFO with over 1,000 AUs, as well as AFOs with
300 or more AUs that meet certain requirements.
Baseline scenario plus dry poultry and immature swine and heifer
operations.
New NPDES conditions for identifying CAFOs among AFOs with 300 -
1000 AUs, plus dry poultry and immature swine and heifer operations.
CAFOs include all AFOs with 500 or more AUs, plus dry poultry,
immature swine and heifer operations.
CAFOs include all AFOs with 300 or more AUs, plus dry poultry,
immature swine and heifer operations.
Baseline scenario plus dry poultry and immature swine and heifer
operations.
New NPDES conditions for identifying CAFOs among AFOs with 300 -
1000; AUs, plus dry poultry and immature swine and heifer operations.
Effluent Guidelines
Revisions
Manure application
not regulated
Nitrogen-based
manure application
Nitrogen-based
manure application
Nitrogen-based
manure application
Nitrogen-based
manure application
Phosphorus-based
manure application
Phosphorus-based
manure application
336
-------
Regulatory
Scenario
Phosphorus
Scenario 4a*
Phosphorus
Scenario 4b
NPDES Revisions
CAFOs include all AFOs with 500 or more AUs, plus dry poultry,
immature swine and heifer operations.
CAFOs include all AFOs with 300 or more AUs, plus dry poultry,
immature swine and heifer operations.
Effluent Guidelines
Revisions
Phosphorus-based
manure application
Phosphorus-based
manure application
* proposed scenarios
EPA has developed a model facility analysis to assess changes in pollutant loadings under
baseline conditions and proposed regulatory scenarios. First, the analysis disaggregates the
universe of AFOs according to a suite of characteristics directly affecting manure generation,
manure management, and pollutant loadings. AFOs are then grouped into five geographic
regions. Within each geographic region, EPA defines mode] facilities by production sector,
subsector, and size (number of animals).
EPA then calculates manure production and the associated production of pollutants for
each mode] facility. EPA multiplies the number of animal units per model facility by the manure
production per animal unit to determine total manure production. EPA then calculates total
generation of nutrients based on the typical pollutant concentrations per unit of recoverable
manure for each animal type.
The core modeling analysis focuses on land application practices for each model facility
and the capacity for soil and crop removal of nutrients applied to the land.2 EPA divides the total
nitrogen and phosphorus generated in manure by the average total acreage available for land
application for an operation in the given region, size class, and production sector. The ratio of
nutrients applied to crop nutrient requirements provides a measure of the excess nutrients applied
in the manure. This in turn forms the foundation for loadings analyses of regulatory scenarios that
call for adherence to agronomic rates of nutrient application.
EPA models "edge-of-field" loadings (i.e., pollutant loadings at the boundary of the model
facility) using the Groundwater Loading Effects of Agricultural Management Systems (GLEAMS)
model. This field-scale model simulates hydrologic transport, erosion, and biochemical processes
such as chemical transformation and plant uptake. The model uses information on soil
characteristics and climate, along with nutrient production data, to model losses of nutrients in
surface runoff, sediment, and groundwater leachate. Loadings are modeled for the pre- and post-
regulatory scenarios to estimate changes in loadings attributable to the proposed standards.
Finally, EPA extrapolates from the model facilities to develop national estimates of
baseline and post-regulatory pollutant loadings from AFOs. Using the USDA Census of
Agriculture, EPA determines the number of operations that raise animals under confinement.
" In addition to modeling loadings based on manure application, EPA develops two complementary
analyses to examine loadings from storage structures and feedlots.
337
-------
Then, EPA determines the number of CAFOs based on operations that are defined as CAFOs and
smaller operations that are designated as CAFOs based on site-specific conditions, as established
by the permitting authority. Finally, AFOs and CAFOs by region are placed into counties (and
eventually watersheds) using published county level Census data. Therefore, the end product of
the GLEAMS modeling is a spatial distribution of aggregated edge-of-field loadings that can be
used in the water quality modeling and benefits monetization process described below.
National Surface Water Pollution Study
The National Water Pollution Control Assessment Model (NWPCAM) was employed to
estimate national economic benefits to surface water quality resulting from implementation of
various scenarios for regulating CAFOs. NWPCAM is a national-scale water quality model for
simulating the water quality and economic benefits that can result from various water pollution
control policies. NWPCAM is designed to characterize water quality for the Nation's network of
rivers and streams, and, to a more limited extent, its lakes. Using GLEAMS output data,
NWPCAM is able to translate spatially varying water quality changes resulting from different
pollution control policies into terms that reflect the value individuals place on water quality
improvements. In this way, NWPCAM is capable of deriving economic benefit estimates for
scenarios for regulating CAFOs.
NWPCAM estimates pollutant loadings to the stream (nitrogen, phosphorous, metals, ,
pathogens and sediment) for each regulatory scenario. These loadings by scenario (NWPCAM
output) are used as input to the other studies. Thus, all stream loading estimates are derived from
NWPCAM.
1. NWPCAM Loading reductions
Table 11-10 shows the estimated pollutant reduction for nitrogen, phosphorus, fecal
coliform, fecal streptococci, and sediment for each of the five NPDES regulatory scenarios based
on either nitrogen or phosphorus manure land application. Nitrogen reductions range from 14
million to 33 million kgs per year; phosphorus ranges from 35 million to 59 million kgs per year;
fecal coliform from. 26 billion to 38 billion colonies per year; fecal streptococci from 37 to 65
billion colonies per year; and sediment from 0 kgs to 38 million kgs per year.
The proposed Phosphorus - Scenario 2/3 shows a reduction of 30 M kg (66M Ibs) of
nitrogen, 54M kg (119M Ibs) of phosphorus, 34 billion colonies of fecal coliform, 60 billion
colonies of fecal strep, and 35B kg (77B Ibs) of sediment. Phosphorus - Scenario 4a shows a
reduction of 29 million kg (64M lbs)of nitrogen, 52 million kg (115 M Ibs) of phosphorus, 32
billion and 58 billion colonies of fecal coliform and fecal streptococci, respectively and 34 billion
kg (75B Ibs) of sediment to our nation's waters each year.
Table 11-10. Pollutant Reduction based on Nitrogen or Phosphorus Manure Application
Rates by NPDES Scenario
338
-------
Nitrogen -
Scenario 1
Nitrogen -
Scenario 2/3
Nitrogen -
Scenario 4a
Nitrogen -
Scenario 4b
Phosphorus -
Scenario 1
Phosphorus -
Scenario 2/3*
Phosphorus -
Scenario 4a* .
Phosphorus -
Scenario 4b
Nitrogen
(million kg)
14
16
15
18
25
30
29
33
Phosphorus
(million kg)
35
45
42
48
42
54
52
59
Fecal Coliform
(billion colonies)
26
31
29
34
29
34
32
38
Fecal Strep
(billion colonies)
37
45
44
47
50
60
58
65
Sediment
(billion kg)
0
0
0
0
26
35
34
38
* proposed scenarios
In addition, EPA estimated loadings reductions to surface waters for various metals found
in manure: zinc, copper, cadmium, nickel and lead. The range of loadings reductions is shown in
Table 11-11.
Table 11-11. Range of Metal Loading Reductions Across Scenarios
Metal
Zinc
Copper
Cadmium
Nickel
Lead
low (kg)
10 M
546 K
23 K
219K
395 K
high (kg)
19M
1,051 K
39 K
418 K
777 K
Table 11-12 is a list of metals and load reductions per year for the proposed scenarios.
Table 11-12. Metal Loading Reductions for Scenario2/3-Scenario 4a
Metal
Zinc
Copper
Kilograms*
18mi!lion/1 7 million
I million/895 thousand
339
-------
Cadmium
Nickel .
Lead
37 thousand/35 thousand
400 thousand/345 thousand
740/690 thousand
* rounded to the nearest 10
The methods used to develop these loading reduction estimates are outlined in detail in the
Environmental and Economic Benefits of the NPDES/ELG CAFO Rules,
2. Monetized Benefits
a. National Water Pollution Control Assessment Model (NWPCAM)
Economic benefits associated with the various AFO/CAFO scenarios are based on changes
in water quality use-support (i.e., boatable, fishable, swimmable) and the population benefitting
from the changes. Benefits are calculated state-by-state at the State (local) scale as well as at the
national level. For each State, benefits at the local-scale represent the value that the State
population is willing to pay for improvements to waters within the State or adjoining the State.
For each State, benefits at the national-scale represent the value that the State population is willing
to pay for improvements to waters in all other states in the continental United States.
Based on the NWPCAM analysis, the total national willingness-to-pay (WTP) benefits at
the local-scale for all water quality use-supports ranged from approximately $4.3 million (1999
dollars) for the least stringent scenario to $122.1 million for the most stringent scenario. The total
national WTP benefits at the national-scale for all water quality use-supports ranged from
approximately $0.4 million (1999 dollars) for the least stringent scenario to $22.7 million for the
most stringent scenario. Total WTP benefits (i.e., sum of local-scale and national-scale) for all
water quality use-supports ranged from approximately $4.9 million (1999 dollars) for the least
stringent scenario to $145 million for the most stringent scenario.
Table 11-13 summarizes the resulting estimates of economic benefits for each of the six
regulatory scenarios analyzed. EPA estimates that the annual benefits of Phosphorus - Scenario
2/3 is approximately $127 million per year; for Phosphorus - Scenario 4a is $108 million per year.
Table 11-13. Economic Benefit of Estimated Improvements in Surface Water Quality
Regulatory Scenario
Nitrogen
Nitrogen
Nitrogen
Nitrogen
- Scenario 1
- Scenario 2/3
- Scenario 4a
- Scenario 4b
Annual Benefits
(1999$)
$4.9 million
$6.3 million
$5.5 million
$7.2 million
340
-------
Phosphorus - Scenario 1
Phosphorus - Scenario 2/3*
Phosphorus - Scenario 4a*
Phosphorus - Scenario 4b
$87.6 million
$127.1 million
$108.5 million
$145.0 million
*proposed scenarios
b. Shellfish Beds
Pathogen contamination of coastal waters is a leading cause of shellfish bed harvest
restrictions and closures. Sources of pathogens include runoff from agricultural land and
activities. Using The 1995 National Shellfish Register of Classified Growing Waters (shellfish
register) published by the National Oceanic and Atmospheric Administration (NOAA), EPA
estimated the possible improvements to shellfish bed harvesting due to expected pathogen
reductions of each regulatory scenario.
First, EPA characterized the baseline annual shellfish bed loadings. Then, EPA estimated
the area of shellfish-growing waters for which current loadings are harvested. For the third step,
EPA calculated the average annual per-acre yield of shellfish form harvested waters. Next, EPA
estimated the area of shellfish-growing waters that are currently unharvested as a result of
pollution from AFOs. From this, EPA calculated the potential harvest of shellfish from waters
that are currently unharvested as a result of pollution from AFOs. Estimates for all scenarios range
from $1.8 million to $2.9 million. Phosphorus - Scenarios is $2.7 million and Phosphorus -
Scenario 4a is $2.4 million.
c. Fishkills
Episodic fish kill events resulting from spills, manure runoff, and other discharges of
manure from animal waste feeding operations continue to remain a serious problem in the United
States. The impacts from these incidents range from immediate and dramatic kill events to less
dramatic but more widespread events. Manure dumped into and along the West Branch of the
Pecatonica River in Wisconsin resulted in a complete kill of smallmouth bass, catfish, forage fish,
and all but the hardiest insects in a 13 mile stretch of the river. Less immediate catastrophic
impacts on water quality from manure runoff, but equally important, are increased algae growth or
algae blooms which remove oxygen from the water and may result in the death offish. Manure
runoff into a shallow lake in Arkansas resulted in a heavy algae bloom which depleted the lake of
oxygen, killing many fish.
Fish health and fish kills are an indication of water quality. If fish cannot survive or are
sick in their natural habitat then the public may view the water as unsuitable for recreational
activities and fish unfit for human consumption. Parts of the Eastern Shore of the United States
341
-------
have been plagued witn problems related to pfiesteria, a dinoflagellate algae that exist in rivers at
all times, but can transform itself into a toxin that eats fish. Fish attacked by pfiesteria have
lesions or large, gaping holes on them as their skin tissue is broken down; the lesions often result
in death. The transformation of pfiesteria to the toxic form is believed to be the result of high
levels of nutrients. Fish kills related to pfiesteria in the Neuse River in North Carolina have been
blamed on the booming hog industry and the associated waste spills and runoff from the hog
farms.
There is preliminary evidence that suggests that there are human health problems
associated with exposure to pfiesteria. As a result, people most likely would limit or avoid
recreational activities in waters with pfiesteria-related fish kills. The town of New Bern, a
popular summer vacation spot along the Neuse River in North Carolina, was concerned about a
decline in tourism after several major fish kills in the summer of 1995. Not only were fish killed,
people became sick after swimming or fishing in the waters. People swimming in the waters
reported welts and sores on their body. Summer camps canceled boating classes and children
were urged to stay out of the water. Fishing boats were concerned about taking people fishing on
the river. People were warned not to eat fish that were diseased or sick. At one point, after seeing
miles and miles of dead fish, a top environmental official issued a warning urging people not to
swim, fish, or boat in the fish-kill zone. Many blame the heavy rainfall which pumped pollutants
from overflowing sewage plants and hog lagoons into the river, creating algae blooms, low
oxygen and pfeisteria outbreaks as the cause of the fish kills.
Reports on fish kill events in the United States were collected by the Natural Resources
Defense Council and the Izaak Walton League. Nineteen states reported information on historical
and current fish kills. Using these data, EPA estimated the benefits related to reduced fish being
killed for each regulatory scenario. At a seven percent discount rate, benefits range from $2
million to $42 million. Benefots for Phosphorus - Scenario 3 range from $2.4 million to $30.6
million; for Phosphorus - Scenario 4a, from $2.8 million to $34.5 million.
d. Groundwater Contamination
CAFOs can contaminate groundwater and thereby cause health risks and welfare losses to
people relying on groundwater sources for their potable supplies or other uses. Of particular
concern are nitrogen and other animal waste-related contaminants (originating from manure and
liquid wastes) that leach through the soils and the unsaturated zone and ultimately reach
groundwaters. Nitrogen loadings convert to elevated nitrate concentrations at household and
community system wells, and elevated nitrate levels in turn pose a risk to human health in
households with private wells (nitrate levels in community wells are regulated to protect human
health). The proposed regulation will generate benefits by reducing nitrate levels in household
wells, and there is clear empirical evidence that households have a positive willingness to pay to
reduce nitrate concentrations in their water supplies.
The federal health-based National Primary Drinking Water Standard for nitrate is 10 mg/L,
and this Maximum Contaminant Level (MCL) applies to all Community Water Supply systems.
342
-------
Households relying on private wells are not subject to the federal MCL for nitrate but levels above
10 mg/L are considered unsafe for sensitive subpopulations (e.g., infants). Several economic
studies indicate a considerable WTP by households to reduce the likelihood of nitrate levels
exceeding 10 mg/L (e.g.,$448 per year per household (Poe and Bishop, 1991)). There also is
evidence of a positive household WTP to reduce nitrate levels even when baseline concentrations
are considerably below the MCL (approximately $2 per mg/L of reduced nitrate concentration
(Crutchfield et al, 1997, De Zoysa, 1995)).
Based on extensive U.S. Geologic Survey (USGS) data on nitrate levels in wells
throughout the country, an empirical model was developed to predict how each regulatory option
would affect the distribution of nitrate concentrations in household wells. Table 11-14 indicates
the number of household wells that are estimated to have baseline (i.e., without regulation)
concentrations above 10 mg/L and that will have these concentration reduced to levels below the
MCL. for each option. Also shown are the households with predicted nitrate levels that are below
the MCL at baseline, but that will experience further reductions in nitrate levels due to the
proposed regulation.
Table 11-14. Reduction in households exceeding MCL and mg/L of nitrate in wells
Regulatory Scenario
Baseline # of households affected
Nitrogen - Scenario 1
Nitrogen - Scenario 2/3
Nitrogen - Scenario 4a
Nitrogen -Scenario 4b
Phos. - Scenario 1
Phos.- Scenario 2/3*
Phos.- Scenario 4a*
Phos. - Scenario 4b
Reduction, from baseline, in # of
households exceeding 10 mg/L
1,277,137
152,204
152,204
161.384
161,384
161,384
161,384
165,974
165,974
Total number of mg/L reduced in
wells at 1*10 mg/L at baseline
6,195,332
961,741
1,007,611
1,186,423
1,186,423
1,103,166
1,159,907
1,374,990
1,374,990
*proposed scenarios
The monetized benefits of these nitrate concentration reductions is estimated to be $49.4
million per year for Phosphorus - Scenario 2/3, as shown in Table 11-15. The total benefits of this
scenario consist of $47.8 million for the households that have nitrate levels reduced to below the .
MCL from baseline concentrations above 10 mg/L, plus an additional $1.5 million for those
households with nitrate reductions relative to baseline levels below the MCL. The monetized
benefits of these nitrate concentration reductions is estimated to be $51.0 million per year for
Phosphorus - Scenario 4a. The total benefits of this option consist of $49.2 million for the
households that have nitrate levels reduced to below the MCL from baseline concentrations above
10 mg/L, plus an additional $1.7 million for those households with nitrate reductions relative to
343
-------
baseline levels below the MCL. Th: household benefits of the other options are also shown in the
table, and range from $46.4-$50.1 million per year.
Table 11-15. Annuallzed monetary benefits attributable to reduced nitrate concentrations
Regulatory Scenario
Nitrogen - Scenario 1
Nitrogen - Scenario 2/3
Nitrogen - Scenario 4a
Nitrogen - Scenario 4b
Phos. - Scenario 1
Phos. - Scenario 2/3*
Phos. - Scenario 4a*
Phos. - Scenario 4b
Total
Benefits
$46,372,457
$46,432,250
$49,386,622
$49,386,622
$49^278,094
$49,352,058
$50,993,067
$50,993,067
Benefits from households
exceeding MCL at baseline
$45,118,803
$45,118,803
$47,840,089
$47,840,089
$47,840,089
$47,840,089
$49,200,732
$49,200,732
Benefits from households between
1 and 10 mg/L at baseline
$1,219,763
$1,276,293
$1,498,104
$1,498,104
$1,396,043
$1,465,648
$1,729,337
$1,729,337
*proposed scenarios - :
e. Total Benefit of Proposed Regulatory Scenario
Table 11-16 shows the annualized benefits for each of the studies conducted. Table 11-17
shows the summary of annualized benefits for three discount rates (3,S,and 7 percent). The total
monetized benefits for this proposed rule are, at a minimum, $163 million for Phosphorus -
Scenario 2/3 and $146 million for Phosphorus - Scenario 4a, discounted at seven percent. At a
three percent discount rate, the annualized benefits for Phosphorus - Scenario 3 are $180 million
and for Phosphorus - Scenario 4a, $163 million. These represent the lower bound estimates for
this analysis. The upper end of the range would include estimates for drinking water treatment
plant cost savings, surface water improvements from nonboatable to boatable water quality
conditions, and other benefits that we were unable to estimate at this time. We plan to include
some of these monetized benefits in the final rule.
Table 11-16. Estimated Annualized Benefits of Revised CAFO Regulations
(1999 dollars, millions)
Regulatory Scenario
Nitrogen- Scenario 1
Nitrogen- Scenario 2/3
Nitrogen- Scenario 4a
Nitrogen- Scenario 4b
Phosphorus- Scenario 1
Phosphorus- Scenario 2/3*
Recreational and
Non-use Benefits
$4.9
$6-3
$5.5
' $7.2
$87.6
$127.1
Reduced Fish
Kills
$0.1 -$0.2
$0.1 -$0.3
$0.1 -$0.3
$0.1 -$0.3
$0.2 - $0.3
$0.2 - $0.4
Improved
Shellfishing
$0.1 -$1.8
$0.2 -$2.4
$0.2 -$2.2
$0.2 -$2.6
$0.2 -$2.1
$0.2 - $2.7
Reduced Private
Well
Contamination
$33.3 - $49.0
$33.3 - $49.1
$35.5 -$52.2
$35.5 -$52.2
$35.4 -$52.1
$35.4 - $52.1
344
-------
Phosphorus- Scenario 4a*
Phosphorus- Scenario 4b
$108.5
$145.0
$0.2 - $0.4
$0.2 - $0.4
$;.2-$2.4
$0.2 - $3.0
$36.6 -$53.9
$36.6 -$53.9
"•proposed scenarios
Table 1147. Summary of Annualized Benefits (1999 dollars, millions)
Regulatory Scenario
Nitrogen-Scenario 1
Nitrogen-Scenario 2/3
Nitrogen-Scenario 4a
Nitrogen-Scenario 4b
Phosphorus-Scenario 1
Phosphorus-Scenario 2/3*
Phosphorus-Scenario 4a*
Phosphorus-Scenario 4b
Discount Rates
3 Percent
Low
$54.1
$55.7
$58.0
$59.7
$140.0
$179.7
$162.8
$199.4
High
$55.9
$58.0
$60.2
$62.3
$142.1
$182.3
$165.1
$202.2
5 Percent
Low
$45.0
$46.6
$48.3
$50.1
$130.4
$170.0
$152.8
$189.4
High
$46.9
$48.9
$50.5
$52.6
$132.4
$172.7
$155.2
$192.2
7 Percent
Low
$38.4
$39.9
$41.2
$43.0
$123.3
$163.0
$145.5
$182.1
High
$40.2
$42.3
$43.4
$45.5
$125.4
$165.6
$147.9
$185.0
* Proposed scenarios
XII. Public Outreach
A. Introduction and Overview
EPA has actively involved interested parties to assist it in developing a protective,
practical, cost-effective regulatory proposal. EPA has provided many opportunities for input in
this rulemaking process. EPA has met with various members of the stakeholder community on a
continuing basis through meeting requests and invitations to attend meetings, conferences, and
site visits. These meetings with environmental organizations, agricultural organizations, producer
groups, and producers representing various agricultural sectors have allowed EPA to interact with
and receive input from stakeholders about the Unified Strategy and the NPDES and effluent
limitations regulatory revisions. In addition, EPA convened a Small Business Advocacy Review
Panel to address small entity concerns. EPA also sent an outreach package to and met with
several national organizations representing State and local governments. More detailed
information on EPA's public outreach is provided in the rulemaking record.
B. Joint USD A/EPA Unified AFO Strategy Listening Sessions
In the fall of 1998, EPA and USD A announced eleven public outreach meetings designed
to allow public comment on the Draft Unified National AFO Strategy. The meetings were held in
the following cities: Tulsa, Oklahoma; Harrisburg, Pennsylvania; Ontario, California; Madison,
345
-------
Wisconsin; Seattle, Washington; Des Moines, lo /a; Chattanooga, Tennessee; Indianapolis,
Indiana; Fort Worth, Texas; Denver, Colorado; and Annapolis, Maryland. Each meeting included
a pre-meeting among state and regional officials, EPA, and USDA representatives to discuss the
draft strategy and the issues posed by CAFOs in general. All participants in the public sessions,
including numerous small entities, were given the opportunity to sign up and provide their
comments to a panel consisting of EPA, USDA, and local representatives. Many of the
commenters made points or raised issues germane to small entities. A transcript of these
comments was used by EPA and USDA in developing the final Unified National AFO Strategy.
These comments and concerns have been considered by EPA in the development of the revised
NPDES CAFO regulations. The transcripts of these meetings are available on the OWM Web
Site (www.epa.gov/owm/afo.htm) and are available in the record.
C. Advisory Committee Meeting
EPA was invited to meet with the Local Government Advisory Committee, Small
Community Advisory Subcommittee on September 8,1999. At this Federal Advisory Committee
Act meeting, EPA described the CAFQ regulatory revisions being considered, and responded to
questions concerning the effect of EPA's regulatory actions on small communities. While the
CAFO regulations do not directly affect small communities, AFOs do have an effect on local
economies and on the local environment. Thus, how they are regulated (or not regulated) has
implications for local governments. EPA is keeping local government concerns in mind as it
proceeds with the CAFO regulatory revisions and general public outreach activities.
D. Farm Site Visits
EPA conducted approximately 110 site visits to collect information about waste
management practices at livestock and poultry operations. Agency staff visited a wide range of
operations, including those demonstrating centralized treatment or new and innovative
technologies. EPA staff visited livestock and poultry operations throughout the United States, the
majority of which were chosen with the assistance of the leading industry trade associations and
also by the Natural Hesources Defense Council, the Clean Water Network, university experts,
State cooperative and extension agencies, and state and EPA regional representatives. EPA also
attended USDA-sponsored farm tours, as well as tours offered at industry, academic, and
government conferences. Details on these visits are provided in the rulemaking record.
EPA staff visited cattle feeding operations in Texas, Oklahoma, Kansas, Colorado,
California, Indiana, Nebraska, and Iowa, as well as veal operations in Indiana. The capacities of
the beef feedlots varied from 500 to 120,000 head. EPA also visited dairies in Pennsylvania,
Florida, California, Colorado, and Wisconsin, with the total mature dairy cattle at the operations
ranging from 40 to 4,000 cows. In addition, EPA visited broiler, layer and turkey facilities in
Georgia, Arkansas, North Carolina, Virginia, West Virginia, Maryland, Delaware, Pennsylvania,
Ohio, Indiana, and Wisconsin. EPA visited hog facilities in North Carolina, Ohio, Iowa,
Minnesota, Texas, Colorado, Oklahoma, and Utah.
346
-------
E. Industry Trade Associations
Throughout regulatory development, EPA has worked with representatives from the
national trade groups, including: National Cattlemen's Beef Association (NCBA); American Veal
Association (AVA); National Milk Producers Federation (NMPF); Professional Dairy Heifers
Growers Association (PDHGA); Western United Dairymen (WUD); National Pork Producers
Council (NPPC); United Egg Producers and United Egg Association (UEP/UEA); National
Turkey Federation (NTF); and the National Chicken Council (NCC). All of the above
organizations have provided assistance by helping with site visit selection, submitting
supplemental data, reviewing descriptions of the industry and waste management practices, and
participating in and hosting industry meetings with EPA.
F. CAFO Regulation Workgroup
EPA established a workgroup that included representatives from USDA and seven states,
as well as EPA Regions and headquarters offices. The workgroup considered input from
stakeholders and developed the regulatory options presented in today's proposal.
G. Small Business Advocacy Review Panel
1. Summary of Panel Activities
To address small business concerns, EPA's Small Business Advocacy Chairperson
convened a Small Business Advocacy Review (SBAR) Panel under section 609(b) of the
Regulatory Flexibility Act (RFA) as amended by the Small Business Regulatory Enforcement
Fairness Act (SBREFA). Participants included representatives of EPA, the Small Business
Administration (SBA) and the Office of Management and Budget (OMB). "Small Entity
Representatives" (SERs), who advised the Panel, included small livestock and poultry producers
as well as representatives of the major commodity and agricultural trade associations. Information
on the Panel's proceedings and recommendations is in the Final Report of the Small Business
Advocacy Review Panel on EPA's Planned Proposed Rule on National Pollutant Discharge
Elimination System (NPDES) and Effluent Limitations Guideline (Effluent Guidelines)
Regulations for Concentrated Animal Feeding Operations (hereinafter called the "Panel Report"),
along with other supporting documentation included as part of the Panel process. This
information can be found in the rulemaking record.
Prior to convening a SBAR Panel, EPA distributed background information and materials
to potential SERs on September 3,1999 and September 9,1999. On September 17,1999, EPA
held a conference call from Washington, D.C. which served as a pre-panel forum for small
business representatives to provide input on key issues relating to the proposed regulatory changes
to the "CAFO Rule." Twenty-seven small business representatives from the beef, dairy, swine,
poultry, and exotic animal livestock industries participated in the conference call. A summary of
the conference call is included in the Panel Report. Following the conference call, 19 of the 41
small business advisors and national organizations invited to participate on the conference call
submitted written comments. These written comments are included in the Panel Report.
347
-------
The SBAR Panel for the "CAFO Rule" was formally c 'livened on December 16,1999.
On December 28,1999, the Panel distributed an outreach pactcage to the final group of SERs,
which included many of the participants in EPA's September 17,1999 outreach conference call.
The package included: a SER outreach document, which provided a definition of a small business
and described those entities most likely to be affected by the rule; an executive summary of EPA's
cost methodology; regulatory flexibility alternatives; a cost methodology overview for the swine,
poultry, beef, and dairy sectors; a cost annualization approach; and a list of questions for SERs.
Additional modeling information was also sent to SERs on January 7,2000 and January 10,2000.
A complete list of these documents can be found in the Panel Report; all information sent to the
SERs is included in the record.
The SERs were asked to review the information package and provide verbal comments to
the Panel during a January 5,2000 conference call, in which 22 SERs participated. During this
conference call, SERs were also encouraged to submit written comments. SERs were given an
additional opportunity to make verbal comments during a second conference call held on January
11,2000, in which 20 SERs participated. During both conference calls, SERs were asked to
comment on the costs and viability of the proposed alternatives under consideration by EPA. A
summary of both conference calls can be found in the Panel Report. Following the calls, the
Panel received 20 sets of written comments from 14 SERs. A complete set of these comments is
included in the Panel Report.
2. Summary of Panel Recommendations
A full discussion of the comments received from SERs and Panel recommendations is
included in the Panel Report. The major issues summarized are as follows.
a. Number of Small Entities
The Panel reviewed EPA's methodology to develop its estimate of the small entities to
which the proposed rule will likely apply. EPA proposed two alternative approaches to estimate
the number of small businesses in these sectors. Both approaches identify small businesses in
these sectors by equating SBA's annual revenue definition with the number of animals at an
operation and estimate the total number of small businesses in these sectors using farm size
distribution data from USDA. One approach equates SBA's annual revenue definition with
operation size using farm revenue data, as described in Section X.J.2 of this document. Another
approach equates SBA's annual revenue definition with the operation size using a modeling
approach developed by EPA that calculates the amount of livestock revenue at an operation based
market data, including the USDA-reported price received by producers, average yield, and the
number of annual marketing cycles. (Additional information on this latter approach is in the
rulemaking record.)
During the Panel process, and following formal consultation with SBA, the Panel
participants agreed to use the first approach to estimate the number of small businesses in these
sectors. More details on this approach is provided in Section X.J.2 and in Section 9 of the
Economic Analysis. More detail on the Panel's deliberation of the approach used to determine the
348
-------
number of small businesses is provided Sections 4 and 5 of the Pane"! Report and in other support
documentation developed during the SBAR Panel process. The Panel noted that the revised
methodology may not accurately portray actual small businesses in all cases across all sectors.
The Panel also recognized that, under this small business definition, EPA would be regulating
some small facilities, but urged EPA to consider the small business impacts of doing so.
b. Potential Reporting, Record Keeping, and Compliance
Requirements
Record Keemns Related to Off-Site Transfer of Manure. The Panel reviewed EPA's
consideration of record keeping and reporting requirements in connection with off-site transfer of
manure. The Panel recommended that EPA review and streamline the requirements for small
entities. In response to this recommendation, EPA is limiting its proposal to keep records of the
name and address of the entity to which the CAFO is transferring manure, how much is being
transferred and the nutrient content of the manure on-site. This information would allow EPA to
track manure, and to follow-up with the third party recipient to ascertain whether the manure was
applied in accordance with Clean Water Act requirements that may apply. EPA is also proposing
under one co-proposed option that a CAFO obtain a certification from recipients that land
application is done in accordance with proper agricultural practices. EPA assumes recipients of
manure are mostly field crop producers who already maintain appropriate records relating to
nutrient management. EPA is not proposing to establish specific requirements for these offsite
recipients.
Permit Application and Certification Requirements. The Panel asked EPA to consider the
burden associated with increasing the number of entities subject to permit between 300 AU and
1,000 AU. Furthermore, the Panel recommended that EPA carefully consider appropriate
streamlining options before considering a more burdensome approach. EPA considered several
alternative scenarios for the scope of permit coverage of facilities in this size group, and decided
to simultaneously co-propose two scenarios, as each offers different means of accomplishing
similar environmental outcomes.
The first alternative proposal would retain the current three-tier structure, but would
require an operation in the 300-1,000 AU size tier to certify to the permitting authority that it does
not meet any of the "risk-based" conditions (described in Section VII), and thus is not required to
obtain a permit. The three-tier structure would require all AFOs with 300 AU or more to, at a
minimum, obtain a permit nutrient plan and submit a certification to the permit authority. This
alternative would provide the permit authority the opportunity to implement effective programs to
assist AFOs in order to minimize how many would be required to apply for a permit. Because
those certifying would not be CAFOs, however, they would have access to section 319 nonpoint
source funds. This co-proposed alternative does not meet one of the goals of today's proposal, as
recommended by the Panel, that is, to simplify the regulations to improve understanding and
therefore compliance by the regulated community. Further, the conditions are such that all
facilities with 300 AU or more would incur some cost associated with certifying they do not meet
any of the conditions. EPA is also requesting comment on a variation of the three-tier structure
349
-------
that was present, i to the SERs and generally favorably received by the Par .-1 (see detailed
discussion in Section Vn.B.3).
The second alternative proposal would adopt a two-tier structure that defines all operations
with 500 AU or more as CAFOs. (EPA is also requesting comment on a 750 AU threshold.) This
proposal would provide regulatory relief for operations between 300 AU and 500 AU that may be
considered CAFOs under the existing regulations. Operations in this size group would not be
subject to the certification process and would not incur the costs associated with certification,
such as the costs to obtain a certified Permit Nutrient Plan and to submit a certification to the
permit authority. Under the two-tier structure, operations with more than 500 AU would all be
required to apply for a permit. All facilities with fewer than 500 AU would be subject to
permitting as CAFOs only through case-by-case designation based on a finding that the operation
is a significant contributor of pollution by the permit authority. This proposal offers simplicity
and clarity as to which entities will be subject to the proposed regulations and those that will not,
which was recommended by the Panel, as well as indicated by the regulated community as one of
the goals of today's proposal. Representatives of some State programs, however, have indicated
that they would prefer an option that allows State non-NPDES programs to address issues at
CAFOs in their states, rather than being required to write permits.
EPA is also proposing to provide regulatory relief to small businesses by eliminating the
mixed animal calculation. As a result, smaller operations that house a mixture of animal types
where none of these animal types independently meets the regulatory threshold are not considered
CAFOs under either of today's proposals, unless they are individually designated. EPA believes
that this will provide maximum flexibility for these operations since most are now participating in
USDA's voluntary CNMP program, as outlined in the AFO Strategy. For more information, see
discussion in Section VTL A summary of EPA's economic analysis is provided in Section XJ of
this preamble.
Frequency of Testing. The Panel reviewed EPA's consideration of requiring periodic soil
testing. The Panel agreed that testing manure and soil at different rates may be appropriate, but
expressed concern about the burden of any inflexible testing requirements on small businesses.
The Panel recommended that EPA consider leaving the frequency of required testing to the
discretion of local permit writers, and request comment on any testing requirements that are
included in the proposed rule. The Panel further recommended that EPA weigh the burden of
testing requirements to the need for such information.
EPA is proposing to require soil testing of each field every three years and manure testing
once per year. The proposed frequency is consistent with standards in many states and also
recommendations from agricultural extension services. To ensure that soils have not reached a
critical concentration of phosphorus, EPA believes that it is necessary to establish a minimum
sampling frequency and testing requirements for all CAFOs, regardless of size. Since it is
believed that much of the water pollution from agriculture comes from field runoff, information
on manure and soil content is essential for the operator to determine at what rate manure should
applied. EPA believes this information is essential for the permitting authority to know whether
350
-------
the manure is being land applied at proper rates. The local permit writer retains the discretion to
require more frequent testing.
Groundwater Requirements Where Linked to Surface Water. The Panel reviewed EPA's
consideration of an option that would require groundwater controls at facilities that are
determined to have a direct hydrological connection to surface water since there is reasonable
potential for discharges to surface water via ground water at these facilities ("Option 3"). Because
of the potentially high costs to small operators associated with both making a determination of a
hydrologic link and installing controls (such as lagoon liners, mortality composting devices,
groundwater monitoring wells, concrete pads, and other technologies), the Panel recommended
that EPA examine this requirement, giving careful consideration to the associated small entity
impacts, in light of the expected environmental benefits resulting from this option. The Panel
further recommended that if EPA decides to propose any such requirements that it consider
streamlining the requirements for small entities (e.g., sampling at reduced rates) or exempting
them altogether.
(i) Existing CAFOs. EPA is proposing to require existing beef and dairy CAFOs to
install groundwater controls when the groundwater beneath the production area has a direct
hydrologic connection to surface water (Option 3, as described in Section VIII). This includes
installation of wells and biannual sampling to monitor for any potential discharge from the
production area. CAFOs are also expected to construct concrete pads or impermeable surfaces, as
well as install synthetic liners if necessary to prevent discharges to surface water via direct
hydrologic connection. The groundwater controls which are part of the proposed BAT
requirements are in addition to the land application requirements which ensure that the manure
and wastewater application to land owned or controlled by the CAFO is done in accordance with a
PNP and does not exceed the nutrient requirements of the soil and crop. EPA has determined that
this option represents the best available technology for existing beef and dairy CAFOs and that
this requirement is economically achievable under both proposed permitting scenarios (i.e. the
two-tier and three-tier structures), although some CAFOs in these sectors may experience
increased financial burden. Because the risks from discharged pollutants from groundwater to
surface water are location-specific, EPA believes that the proposed groundwater requirements are
necessary at CAFOs where there is a hydrologic connection to surface waters. EPA's is proposing
that these requirements are economically achievable by operations that are defined as CAFOs and
are also small businesses. The results of EPA's small business analysis is provided in Section XJ
of this preamble. Moreover, EPA believes that the estimated benefits in terms of additional
groundwater-surface water protections would be significant. EPA's pollution reduction estimates
across options are presented in the Development Document.
EPA is not proposing BAT requirements for the existing swine, veal and poultry
subcategories on the basis of Option 3, i.e., EPA rejected proposing groundwater monitoring and
controls in the effluent guidelines for these CAFOs. As described in Section Vin of this
preamble, EPA is proposing Option 5 as the best available technology economically achievable,
which requires zero discharge from the animal production area with no exception for storm
events. Were EPA to add the requirement to control discharges to groundwater that is directly
connected to surface waters in addition to the Option 5 requirements, the costs would result in
much greater financial impacts to hog and poultry operations. EPA's analysis shows that the full
351
-------
cost of groundwater controls ("Option 3") i addition to requirements under Option 5 wc; Id not
be economically achievable by operations in these sectors.
(ii) New CAFOs. EPA is proposing to require that all new CAFOs in all subcategories
install groundwater controls. EPA expects that requiring groundwater monitoring is affordable to
new facilities since these facilities do not face the cost of retrofit. EPA's economic analysis of
new facility costs is provided in Section X.F.l(b) of this preamble. More detailed information is
provided in the Economic Analysis and the Development Document.
c.
Relevance of Other Federal Rules
The Panel did not note any other Federal rules that may duplicate, overlap, or conflict with
the proposed rule. .
d. Regulatory Alternatives
The Panel considered a wide range of options and regulatory alternatives for reducing the
burden on small business in complying with today's proposal. These included:
Revised Applicability Thresholds. The Panel recommended that EPA give serious
consideration to the issues discussed by the Panel when determining whether to establish less
stringent effluent limitations guidelines for smaller facilities, and whether to preserve maximum
flexibility for the best professional judgement of local permit writers. The Panel also
recommended that the Agency carefully evaluate the potential benefits of any expanded
requirements for operations with between 300 and 1,000 AU and ensure that those benefits are
sufficient to warrant the additional costs and administrative burden that would result for small
entities.
EPA is proposing to apply the effluent limitation guidelines to all facilities that are defined
as CAFOs, although EPA is also requesting comment on an option under which they would only
apply to facilities with greater than 1,000 AUs. Thus, under the three-tier structure all CAFOs
with 300 AU or more would be subject to the effluent guidelines. Under the two-tier structure, all
CAFOs with 500 AU or more would be subject to the effluent guidelines. EPA is also requesting
comment on a 750 AU threshold for the two-tier structure. Under both of the co-proposed
alternatives, EPA is proposing to eliminate the "mixed" animal calculation for operations with
more than a single animal type for determining which AFOs are CAFOs. As a result, smaller
operations that house a mixture of animal types where none of these animal types independently
meets the regulatory threshold are not considered CAFOs under today's proposed rulemaking,
unless they are individually designated. EPA believes that this will provide maximum flexibility
for these operations since most are now participating in USDA's voluntary CNMP program, as
outlined in the AFO Strategy. For more information, see discussion in Section VH.
EPA's two-tier proposal provides additional relief to small businesses. Under the two-tier
structure, EPA is proposing to establish a regulatory threshold that would define as CAFOs all
operations with more than 500 AU. This co-proposed alternative would provide relief to small
352
-------
businesses s»:ice this would remove from the CAFO definition operations with between 300 AU
to 500 AU that under the current rules are defined as CAFOs. These operations would no longer
be defined as CAFOs and may avoid being designated as CAFOs if they take appropriate steps to
prevent discharges. In addition, if operations of any size that would otherwise be defined as
CAFOs can demonstrate that they have no potential to discharge, they would not need to obtain a
permit. Also, under the two-tier structure, EPA is proposing to raise the size standard for defining
egg laving operations as CAFOs from 30,000 to 50,000 laying hens. This alternative would
remove from the CAFO definition egg operations of this size that under the current rules are
defined as CAFOs, if they utilize a liquid manure management system.
EPA believes that revising the regulatory thresholds below 1,000 AU is necessary to
protect the environment from CAFO discharges. At the current 1,000 AU threshold, less than 50
percent of all manure and wastewater generated annually would be captured under the regulation.
Under the co-proposed alternatives, between 64 percent (two-tier) and 72 percent (three-tier)
would be covered. (See Section TV.A of this preamble.) Total pre-tax compliance costs to
CAFOs with fewer than 1,000 AU is estimated to range between $226 million annually (two-tier)
to $298 million annually (three-tier), or about one-third of the total estimated annual costs (see
Section X.E.1). EPA believes that the estimated benefits in terms of additional manure coverage
justify the estimated costs. EPA estimates that 60 percent (two-tier) to 70 percent (three-tier) of
all operations that are defined as CAFOs and are also small businesses are operations with less
than 1,000 AU. EPA's economic analysis, however, indicates that these small businesses will not
be adversely impacted by the proposed requirements. EPA's estimates of the number of small
businesses and the results of its economic analysis is provided in Section X.J of this preamble. '
Under each co-proposed alternative, EPA is proposing that operations that are not defined
as CAFO (i.e., operations with fewer animals than the AU threshold proposed) could still be
designated as CAFOs on a case-by-case basis. During the Panel process, the Panel urged EPA not
to consider changing the designation criteria for operations with less than 300 AU. This includes
the criterion that the permitting authority must conduct an on-site inspection of any AFO, in
making a designation determination. EPA is not proposing to eliminate the on-site inspection
requirement. EPA believes it is appropriate to retain the requirement for an on-site inspection
before the permitting authority determines that an operation is a "significant contributor of
pollution." No inspection would be required to designate a facility that was previously defined or
designated as a CAFO. EPA is, however, requesting comment on whether or not to eliminate this
provision or to redefine the term "on-site" to include other forms of site-specific data gathering.
In addition, EPA is proposing to delete two criteria, including discharge from manmade device
and direct contact with waters of the U.S., as unnecessary to the determination of whether an
operation should be designated as a CAFO. EPA is also proposing to clarify EPA's designation
authority in States with NPDES approved programs. For more information, see Section VII.
25-year. 24-hour Storm Event. At the time of SBREFA outreach, EPA indicated to SERs
and to the Panel that it was considering removing the exemption, but not changing the design
requirement for permitted CAFOs. The Panel expressed concern about removing this exemption
for operations with fewer than 1000 AU. The Panel recommended that if EPA removes the
exemption, it should fully analyze the incremental costs associated with permit applications for
those facilities that are not presently permitted that can demonstrate they do not discharge in less
353
-------
than a 25-year, 24-hour storm event, as well as any costs associated y th additional conditions
related to land application, nutrient management, or adoption of BMPs that the permit might
contain. The Panel recommended that EPA carefully weigh the costs and benefits of removing
the exemption for small entities. The Panel also urged EPA to consider reduced application
requirements for small operations affected by the removal of the exemption.
EPA is proposing to require that all operations that are CAFOs apply for a permit. EPA is
proposing to remove the 25-year, 24-hour storm exemption from the definition of a CAFO. It is
difficult to monitor, and removal of this exemption will make the rule simpler and more equitable.
However, we are proposing to retain the 25-year, 24-hour storm event as a design standard in the
effluent limitation guidelines for certain animal sectors (specifically, the beef and dairy cattle
sectors). As a result, operations in these sectors that discharge only in the event of a 25-year, 24-
hour storm would not be exempt from being defined as CAFOs, but would be in compliance with
their permit as long as they met the 25-year, 24-hour storm design standard. EPA is proposing to
establish BAT for the swine, poultry, and veal subcategories on the basis of Option 5 which bans
discharge from the production area under any circumstances. The technology basis for this option
is covered lagoons, and does not establish a different design standard for these lagoons. Removal
of the exemption from the CAFO definition should have no impact on operations that are already
employing good management practices. More information is provided in Sections YE and Vffl of
this document. Prior to proposing to remove this exemption, EPA evaluated the incremental costs
associated with permit applications for those facilities that are not presently permitted and other
associated costs to regulated small entities. EPA's economic analysis is provided in Section X.J
of this preamble. Estimated costs to the NPDES Permitting Authority are presented in Section
X.G.I. Section X.I presents a comparison of the annualized compliance costs and the estimated
monetized benefits.'
Manure and Wastewater Storage Capacity. The Panel noted the SERs' concern about the
high cost of additional storage capacity and recommended that EPA consider low-cost alternatives
in its assessment of best available technologies economically achievable, especially for any
subcategories that may include small businesses. The Panel was concerned about the high cost of
poultry storage and asked EPA to consider low cost storage. EPA is proposing that facilities may
not discharge pollutants to surface waters. To meet this requirement, facilities may choose to
construct storage sheds, cover manure, collect all runoff, or any other equally effective
combination of technologies and practices. The proposal does not directly impose any minimum
storage requirements.
Land Application. The Panel recommended that EPA continue to work with USDA to
explore ways to limit permitting requirements to the minimum necessary to deal with threats to
water quality from over-application and to define what is "appropriate" land application,
consistent with the agricultural stormwater exemption. The Panel recommended that EPA
consider factors such as annual rainfall, local topography, and distance to the nearest stream when
developing any certification and/or permitting requirements related to land application. The Panel
also noted the high cost of P-based application relative to N-based application, and supported
EPA's intent to require the use of P-based application rates only where necessary to protect water
quality, if at all, keeping in mind its legal obligations under the CWA. The Panel recommended
354
-------
that EPA consider leaving the determination of whether to require the use of P-based rates to the
permit writer's discretion, and continue to work with USDA in exploring such an option.
EPA recognizes that the rate of application of the manure and wastewater is a site-specific
determination that accounts for the soil conditions at a CAFO. Depending on soil conditions at
the CAFO, EPA is proposing to require that the operator apply the manure and wastewater either
according to a nitrogen-standard or, where necessary, on a phosphorus-standard. If the soil
phosphorus levels in a region are very high, the CAFO would be prohibited from applying any
manure or wastewater. EPA believes that this will improve water quality in some production
regions where the amount of phosphorus in animal manure and wastewater being generated
exceeds crop needs and has resulted in a phosphorus build-up in the soils in those regions.
Evidence of manure-phosphorus generation in excess of crop needs is reported in analyses
conducted by USDA. Other data show that larger operations tend to have less land to land apply
manure nutrients that are generated on-site. EPA believes that each of the co-proposed
alternatives establish a regulatory threshold that ensures that those operations with limited land on
which to apply manure are permitted. Under the three-tier structure, EPA is proposing risk "
conditions that would require nutrient management (i.e., PNPs) at operations with 300 to 1,000
AU. In addition, EPA is proposing under one co-proposed option to require letters of certification
be obtained from off-site recipients of CAFO manure. Operations that are not defined as CAFOs,
but that are determined to be a "significant contributor of pollution" by the permit authority, may
be designated as CAFOs.
EPA is proposing a method for assessing whether phosphorus-based application is
necessary that is consistent with USDA's policy on nutrient management. In all other areas, a
nitrogen-based application rate would apply. EPA's proposal grants flexibility to the states in
determining the appropriate basis for land application rates. EPA will continue to work with
USDA to evaluate appropriate measures to distinguish proper agricultural use of manure.
Co-Permitting. The Panel reviewed EPA's consideration of requiring corporate entities
that exercise substantial operational control over a CAFO to be co-permitted. The Panel did not
reach consensus on this issue. The Panel was concerned that any co-permitting requirements may
entail additional costs and that co-permitting cannot prevent these costs from being passed on to
small operators, to the extent that corporate entities enjoy a bargaining advantage during contract
negotiations. The Panel thus recommended that EPA carefully consider whether the potential
benefits from co-permitting warrant the costs particularly in light of the potential shifting of those
costs from corporate entities to contract growers. The Panel also recommended that if EPA does
require co-permitting in the proposed rule, EPA consider an approach in which responsibilities are
allocated between the two parties such that only one entity is responsible for compliance with any
given permit requirement. This would be the party that has primary control over that aspect of
operations. Flexibility could also be given to local permit writers to determine the appropriate
locus of responsibility for each permit component. Finally, the Panel recommended that if EPA
does propose any form of co-permitting, it address in the preamble both the environmental
benefits and any economic impacts on small entities that may result and request comment on its
approach. If EPA does not propose a co-permitting approach, the Panel recommended that EPA
discuss the strengths and weaknesses of this approach and request comment on it.
355
-------
EPA is proposing in the rule to clarify that co-permitting is appropriate where a corporate
or other entity exercises substantial operational control over a CAFO. Data show that some
corporations concentrate growers geographically, thus producing a high concentration of nutrients
over a limited area. EPA is leaving to the States decisions on how to structure co-permitting. A
discussion of the strength and weaknesses of co-permitting is contained in Section VBLC.5 with
several solicitations of comment. EPA is also soliciting comment on an Environmental
Management System as a sufficient program to meet co-permitting requirements. Please refer to
Section Vn.C.5 for further discussion of Environmental Management Systems.
CNMP Preparer Requirements. The Panel reviewed EPA's consideration of requiring
permittees to have CNMPs (Comprehensive Nutrient Management Plans) developed by certified
planners. The Panel recommended that EPA work with USDA to develop low cost CNMP
development services or allow operators to write their own plans. The Panel was concerned about
the cost of having a certified planner develop the plans and urged EPA to continue to coordinate
with other federal, state and local agencies in the provision of low-cost CNMP development
services, and should facilitate operator preparation of plans by providing training, guidance and
tools (e.g., computer programs).
EPA is proposing that CAFOs, regardless of size, have certified Permit Nutrient Plans
(PNPs) that will be enforceable under the permit. The proposal states that USDA's Technical
Guidance for Developing CNMPs may be used as a template for developing PNPs. EPA believes
that USDA documentation and standards will be appropriate for use as the primary technical
references for developing PNPs at CAFOs. In the proposal, EPA has identified certain practices
that would be required elements of PNPs in order to protect surface water from CAFO pollutant
discharges. These practices are consistent with some of the practices recommended in USDA's
CNMP guidance; however, the PNP would not need to include all of the practices identified in the
USDA guidance. As an enforceable part of the permit, the PNP would need to be written either
by a certified planner or by someone else and reviewed and approved by a certified planner. EPA
believes it is essential that the plans be certified by agriculture specialists because the permit
writer will likely rely to a large extent on their expertise. The plans would need to be site specific
and meet the requirements outlined in this rule. EPA is continuing to coordinate with other
regulatory agencies and with USDA on the development of these proposed requirements. EPA
has concluded that development of the PNP is affordable to small businesses in these sectors and
will improve manure management and lead to cost savings at the CAFO. EPA's economic
analysis is provided in Section X.J of this preamble. More detailed information on the cost to
develop a PNP is in the Development Document.
General vs. Individual Permits. The Panel reviewed EPA's consideration of requiring
individual permits for CAFOs that meet certain criteria, or increasing the level of public
involvement in general permits for CAFOs. The Panel recommended that EPA not expand the
use of individual permits for operations with less than 1,000 AU. EPA believes that individual
permits may be warranted under certain conditions such as extremely large operations, operations
with a history of compliance problems, or operations in environmentally sensitive areas.
Accordingly, EPA is co-proposing two options. In one option, each State develops its own
criteria, after soliciting public input, for determining which CAFOs would need to have individual
356
-------
rather than general permits. EPA is also coproposing an option tHt would establish a national
criteria for issuing individual permits. The criteria identifies a threshold that represents the largest
operations in each sector. (See Section Xn for a detailed discussion.)
Immature Animals. The Panel reviewed EPA's consideration to include immature animals
for all animal types in determining the total number of animal units at a CAFO. The Panel
recommended that EPA count immature animals proportionally to their waste generation. EPA is
proposing to continue to account for only the mature animals at operations where all ages of
animals are maintained (mostly dairy and hog operations). Once an operation is covered by the
existing regulations, however, all manure and wastewater generated by immature animals that are
confined at the same operation with mature animals would also be subject to the requirements.
EPA is proposing to maintain this requirement because all young animals are not always confined
and immature populations vary over time, whereas the mature herd is of a more constant size.
Furthermore, the exclusion of immature animals adds to the simplicity we are seeking in this
rulemaking. However, EPA is proposing to include immature animals as subject to the
regulations only in stand-alone nursery pig and heifer operations. For stand-alone nursery pig
operations, EPA is proposing to account for immature animals proportionate to their waste
generation, as discussed in Section VIE. Stand-alone heifer operations are included under the
beef subcategory and are subject to the proposed regulations if they confine more than 500 heifers
(two-tier) or more than 300 AU, under certain conditions (three-tier).
e.
Other Recommendations
Benefits. The Panel recommended that the EPA evaluate the benefits of the selected
regulatory options and that EPA carefully evaluate, in a manner consistent with its legal
obligations, the relative costs and benefits (including quantified benefits to the extent possible) of
each option in order to ensure that the options selected are affordable (including to small fanners),
cost-effective, and provide significant environmental benefits. EPA has conducted an extensive
benefit analysis of all the options and scenarios considered. The findings of the benefit analysis
are found in Section XI of this report. More detailed information is provided in the Benefits
Analysis. Section X.I presents a comparison of the annualized compliance costs and the estimated
monetized benefits.
Estimated Compliance Costs. The Panel recommended that EPA continue to refine the
cost models and consider additional information provided. EPA has continued to refine the cost
models and has reviewed all information provided to help improve the accuracy of the models. A
summary of EPA's cost models is provided in Section X of this preamble. More detailed
information is provided in the Economic Analysis and Development Document provided in the
rulemaking record.
Public Availability ofCNMP. The Panel urged EPA to consider proprietary business
concerns when determining what to make publicly available. To the extent allowed under the law,
EPA should continue to explore ways to balance the operators' concerns over the confidentiality
of information that could be detrimental if revealed to the operators' competitors, with the
public's interest in knowing whether adequate practices are being implemented to protect water
357
-------
quality. EPA is not requiring CAFOs to submit the PNPs to the permit authority. However, EPA
is proposing that the PNPs must be available upon the request of States and EPA. The agencies
would make the plans available to the public on request. EPA is proposing to require the operator
of a permitted CAFO to make a copy of the PNP cover sheet and executive summary available for
public review. EPA is also requesting comment as to whether CAFOs should be able to claim
these elements of the PNP as confidential business information and withhold those elements of
the PNP from public review on that basis, or alternately, that whether other portions of the PNP
should be made available as well.
Dry Manure. The Panel asked EPA to consider the least costly requirements for poultry
operations with dry manure management systems. The Panel recommended that in evaluating
potential requirements for dry manure poultry operations, EPA consider the effects of any such
requirements on small entities. EPA is not mandating a specific storage technology or practice,
but is proposing a zero discharge performance standard and a requirement that poultry operations
develop and implement a PNP. EPA is also proposing that certain monitoring and recordkeeping
requirements would be appropriate. EPA's economic analysis is provided in Section X.J of this
preamble. More detailed cost information is provided in the Development Document,
Coordination with State Programs, The Panel recommended that EPA consider the
impact of any new requirements on existing state programs and include in the proposed rule
sufficient flexibility to accommodate such programs where they meet the minimum requirements ,
of federal NPDES regulations. The Panel further recommended that EPA continue to consult with
states in an effort to promote compatibility between federal and state programs. EPA has
consulted with states. There were seven states represented on the CAFO workgroup (see Section
Xn.G.l). In addition, EPA asked for comment on the proposed options from nine national
associations that represent state and local government officials. (See Section Xffl.G.) In
conducting its analyses for this rulemaking, EPA accounted for requirements under existing state
programs. A summary of EPA's estimated costs to the NPDES Permitting Authority are
presented in Section X.G.1 and Section XHI.B.
XIII. Administrative Requirements
A. Executive Order 12866: "Regulatory Planning and Review"
Under Executive Order 12866 [58 FR 51735, October 4,1993], the Agency must
determine whether the regulatory action is "significant" and therefore subject to OMB review and
the requirements of the Executive Order. The Order defines "significant regulatory action" as one
that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal governments or communities;
358
-------
(2) create a serious inconsistency or otherwise interfere with an action taken or planned by
another agency;
(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or
(4) raise novel legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order."
It has been determined that this proposed rule is a "significant regulatory action" under the
terms of Executive Order 12866. As such, this action was submitted to OMB for review.
Changes made in response to OMB suggestions or recommendations will be documented in the
public record.
B. Regulatory Flexibility Act (RFA) as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.
The RFA generally requires an agency to prepare a regulatory flexibility analysis for any
rule subject to notice and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will not have a significant
economic impact on a substantial number of small entities. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
The RFA provides default definitions for each type of small entity. It also authorizes an
agency to use alternative definitions for each category of small entity, "which are appropriate to
the activities of the agency" after proposing the alternative definition in the Federal Register and
taking comment. 5 U.S.C. §601(3)-(5). In addition to the above, to establish an alternative small
business definition, agencies must consult with the Small Business Administration (SBA) Chief
Counsel for Advocacy.
For purposes of assessing the impacts of today's rule on small entities, small entity is
defined as: (1) a small business based on annual revenue standards established by SBA, with the
exception of one of the six industry sectors where an alternative definition to SBA's is proposed;
(2) a small governmental jurisdiction that is a government of a city, county, town, school district
or special district with a population of less than 50,000; and (3) a small organization that is any
not-for-profit enterprise which is independently owned and operated and is not dominant in its
field.
The definitions of small business for the livestock and poultry industries are in SBA's
regulations at 13 CFR 121.201. These size standards were updated in September, 2000. SBA
size standards for these industries define a "small business" as one with average revenues over a
3-year period of less than $0.5 million annually for dairy, hog, broiler, and turkey operations, $1.5
million for beef feedlots, and $9.0 million for egg operations. In today's rule, EPA is proposing to
define a "small" egg laying operation for purposes of its regulatory flexibility assessments under
the RFA as an operation that generates less than $1.5 million in annual revenue. Because this
definition of small business is not the definition established under the RFA, EPA is specifically
seeking comment on the use of this alternative definition as part of today's notice of the proposed
359
-------
rulemaking. EPA has consulted with the SBA Chief Counsel for Advocacy on the use of this
alternative definition. EPA believes this definition better reflects the agricultural community's
sense of what constitutes a small business and more closely aligns with the small business
definitions codified by SBA for other animal operations. A summary of EPA's analysis
pertaining to the alternative definition is provided in Section 9 of the Economic Analysis. A
summary of EPA's consultation with SBA is provided in the record.
In accordance with Section 603 of the RFA, EPA prepared an initial regulatory flexibility
analysis (IRFA) that examines the impact of the proposed rule on small entities along with
regulatory alternatives that could reduce that impact. The IRFA is available for review in the
docket (see Section 9 of the Economic Analysis'). This analysis is summarized in Section X.J of
this preamble. Based on available information, there are no small governmental operations or
nonprofit organizations that operate animal feeding operations that will be affected by today's
proposed regulations.
The majority (95 percent) of the estimated 376,000 AFOs are small businesses, as defined
by SBA. Of these, EPA estimates that there are 10,550 operations that will be subject to the
proposed requirements that are small businesses under the two-tier structure. Under the three-tier
structure, an estimated 14,630 affected operations are small businesses. The difference in the
number of affected small businesses is among poultry producers, particularly broiler operations.
Section X.J.2 provides additional detail on how EPA estimated the number of small businesses.
Based on the'IRFA, EPA is proposing concludes that the proposed regulations are
economically achievable to small businesses in the livestock and poultry sectors. EPA's
economic analysis concludes that the proposed requirements will not result in financial stress to
small businesses in the veal, dairy, hog, turkey, and egg sectors. However, EPA's analysis
concludes that the proposed regulations may result in financial stress to 150 to 280 small broiler
operations under the two-tier and three-tier structure, respectively. In addition, EPA estimates
that 10 to 40 small beef and heifer operations may also experience financial stress under each of
the proposed tier structures. EPA considers these operations— comprising about 2 percent of all
affected small CAFO businesses—may be vulnerable to closure. Details of this economic
assessment are provided in Section X.J.
EPA believes'that moderate financial impacts that may be imposed on some operations in
some sectors is justified given the magnitude of the documented environmental problems
associated with animal feeding operations, as described in Section V of this document. Section
IV further summarizes EPA's rationale for revising the existing regulations, including: (1) address
reports of continued discharge and runoff from livestock and poultry operations in spite of the
existing requirements; (2) update the existing regulations to reflect structural changes in these
industries over the last few decades; and (3) improve the effectiveness of the existing regulations.
Additional discussion of the objectives of and legal basis for the proposed rule is presented in
Sections I through ffl.
360
-------
Section XHI.F summarizes the expected reporting and recordkeeping requirements
required under the proposed regulation based on information compiled as part of the Information
Collection Request (ICR) document prepared by EPA.
Section X.J.4 summarizes the principal regulatory accommodations that are expected to
mitigate future impacts to small businesses under the proposed regulations. Under both of the co-
proposed alternatives, EPA is proposing to eliminate the "mixed" animal calculation for
operations with more than a single animal type for determining which AFOs are CAFOs. As a
result, smaller operations that house a mixture of animal types where none of these animal types
independently meets the regulatory threshold are not considered CAFOs under today's proposed
rulemaking, unless they are individually designated. Additional accommodations are being
proposed under the two-tier structure. Under the two-tier structure, EPA is proposing to establish
a regulatory threshold that would define as CAFOs all operations with more than 500 AU. EPA is
also considering a two-tier alternative that would define all operations with more than 750 AU as
CAFOs. The two-tier structure would provide relief to small businesses since this would remove
from the CAFO definition operations with between 300 AU and 500 AU (or 750 AU) that under
the current rules may be defined as CAFOs. Also, under the two-tier structure, EPA is proposing
to raise the size standard for defining egg laying operations as CAFOs. This alternative would
remove from the CAFO definition egg operations with between 30,000 and 50,000 laying hens (or
75,000 hens) that under the current rules are defined as CAFOs, if they utilize a liquid manure
management system. Additional information on the regulatory relief provisions being proposed
by EPA is provided in Section VH of this preamble.
As required by section 609(b) of the RFA, as amended by SBREFA, EPA also conducted
outreach to small entities and convened a Small Business Advocacy Review Panel to obtain
advice and recommendations from representatives of the small entities that potentially would be
subject to the rule's requirements. Consistent with the RFA/SBREFA requirements, the Panel
evaluated the assembled materials and small entity comments on issues related to the elements of
the ERFA. A complete summary of the Panel's recommendations is provided in the Final Report
of the Small Business Advocacy Review Panel on EPA's Planned Proposed Rule on National
Polluiam Discharge Elimination System (NPDES) and Effluent Limitations Guideline (Effluent
Guidelines) Regulations for Concentrated Animal Feeding Operations (April 7,2000). This
document is included in the public record. As documented in the panel report, the participants of
the Small Business Advocacy Review Panel did not identify any Federal rules that duplicate or
interfere with the requirements of the proposed regulation.
Section XH.G of this document provides a full summary of the Panel's activities and
recommendations. This summary also describes each of the subsequent actions taken by the
Agency, detailing how EPA addressed each of the Panel's recommendations. EPA is interested in
receiving comments on all aspects of today's proposal and its impacts on small entities.
C. Unfunded Mandates Reform Act
Title n of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 104-4, establishes
requirements for Federal agencies to assess the effects of their regulatory actions on State, local,
361
-------
and tribal go* iminents and the private sector. Under section 202 of the UMRA, EPA generally
must prepare a written statement, including a cost-benefit analysis, for proposed and final rules
with "Federal mandates" that may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any one year.
Before promulgating an EPA rule for which a written statement is needed, section 205 of
the UMRA generally requires EPA to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do not apply when they are
inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other
than the least costly, most cost-effective or least burdensome alternative, if the Administrator
publishes with the final rule an explanation why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may significantly or uniquely
affect small governments, including tribal governments, it must have developed under section 203
of the UMRA a small government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small governments to have meaningful
and timely input in the development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
EPA has determined that today's proposed regulations contain a Federal mandate that may
result in expenditures of $100 million or more for the private sector in any one year. Accordingly,
EPA has prepared the written statement required by section 202 of the UMRA. This statement is
contained in the Economic Analysis and also the Benefits Analysis for the rule. These support
documents are contained in the record. In addition, EPA has determined that the rules contain no
regulatory requirements that might significantly or uniquely affect small governments. Thus,
today's rules are not subject to the requirements of section 203 of the UMRA. Additional
information that supports this finding is provided below.
A detailed discussion of the objectives and legal basis for the proposed CAFO regulations
is presented in Sections I and HI of the preamble. A consent decree with the Natural Resources
Defense Council established a deadline of December 2000 for EPA to propose effluent limitations
for this industry.
EPA prepared several supporting analyses for the final rules. Throughout this preamble
and in those supporting analyses, EPA has responded to the UMRA section 202 requirements.
Costs, benefits, and regulatory alternatives are addressed in the Economic Analysis and the
Benefits Analysis for the rule. These analyses are summarized in Section X and Section XI of this
preamble. The results of these analyses are summarized below.
EPA prepared a qualitative and quantitative cost-benefit assessment of the Federal
requirements imposed by today's final rules. In large part, the private sector, not State, local and
tribal governments, will incur the costs of the proposed regulations. Under the two-tier structure,
total annualized compliance costs to industry are projected at $831 million (pre-tax)/$572 million
362
-------
(post-tax). The cost to off-site recipients of CAFO manure is estimated at $10 million per year.
Under the three-tier structure, costs to industry are estimated at $930 million per year (pre-
tax)/$6S8 million (post-tax), and the annual cost to off-site recipients of manure is estimated at
$11 million. This analysis is summarized in Section X.E.1 of this preamble.
Authorized States are expected to incur costs to implement the standards, but these costs
will not exceed the thresholds established by UMRA. Under the two-tier structure, State and
Federal administrative costs to implement the permit program are estimated to be $6.2 million per
year: $5.9 million for States and $350,000 for EPA. Under the three-tier structure, State and
Federal administrative costs to implement the permit program are estimated by EPA at $7.7
million per year, estimated at $7.3 million for States and $416,000 for EPA. This analysis is
summarized in Section X.G. 1 of this preamble. More detailed information is provided in the
Economic Analysis, The Federal resources (i.e., water pollution control grants) that are generally
available for financial assistance to States are included in Section 106 of the Clean Water Act.
There are no Federal funds available to defray the costs of this rule on local governments. Since
these rules do not affect local or tribal governments, they will not result in significant or unique
impacts to small governments.
Overall, under the two-tier structure, the projected total costs of the proposed regulations
are $847 million annually. Under the three-tier structure, total social costs are estimated at $949
million annually.
The results of EPA's economic impact analysis show that the percentage of operations that
would experience financial stress under each of the proposed tier structures represent 7 percent of
all affected CAFOs (Section X.F.1). This analysis is conducted without taking into account
possible financial assistance to agricultural producers that could offset the estimated compliance
costs to CAFOs to comply with the proposed regulations, thus mitigating the estimated impacts to
these operations. Federal programs, such as USDA's Environmental Quality Incentives Program
(EQIP), and other State and local conservation programs provide cost-share and technical
assistance to farmers and ranchers who install structural improvements and implement farm
management practices, including many of the requirements that are being proposed today by EPA.
EQIP funds are limited to livestock and poultry operations with fewer than 1,000 animal units
(AUs), as defined by USDA, but could provide assistance to operations with less than 1,000 AU
as well as to some larger operations in the poultry and hog sectors.
EPA also conducted an analysis that predicts and quantifies the broader market changes
that may result due to compliance. This analysis examines changes throughout the economy as
impacts are absorbed at various stages of the food marketing chain. The results of this analysis
show that consumer and farm level price changes will be modest. This analysis is summarized in
Section X.F.3.
EPA does not believe that there will be any disproportionate budgetary effects of the rules
on any particular area of the country, particular types of communities, or particular industry
segments. EPA's basis for this finding with respect to the private sector is addressed in Section 5
of the Economic Analysis based on an analysis of community level impact, which is summarized
363
-------
in Section X.G.2 of the preamble. EPA considered lie costs, impacts, and other effects for
specific regions and individual communities, and found no disproportionate budgetary effects.
EPA's basis for this finding with respect to the public sector is available in the record.
The proposed mandate's benefits are primarily in the areas of reduced health risks and
improved water quality. The Benefits Analysis supporting the rulemaking describes, qualitatively,
many such benefits. The analysis then quantifies a subset of the benefits and, for a subset of the
quantified benefits, EPA monetizes (i.e., places a dollar value on) selected benefits. EPA's
estimates of the monetized benefits of the proposed regulations are estimated to range from $146
million to $165 million under the two-tier structure. Under the three-tier structure, estimated
benefits range from $163 million to $182 million annually. This analysis is summarized in
Section XI of this preamble.
EPA consulted with several States during development of the proposed rules. Some raised
concerns that the national rule would have workload and cost implications for the State. Some
States with implementation programs underway or planned want to have their programs satisfy the
requirements of the proposed rule. Other States expressed concerns about the loss of cost-share
funds to AFOs once they are designated as point sources. There were additional comments
regarding inconsistencies with the Unifed Strategy. See Section K.A for a discussion of
alternative State programs, Section X.G for a discussion of State costs and the workload analysis,
Sections HID and Vn.B for a discussion of consistency with the AFO Strategy, and Section DCE
for a discussion of cost-share funds.
For the regulatory decisions in today's rules (allowing for the options reflected by the co-
proposal), EPA has selected alternatives that are consistent with the requirements of UMRA in
terms of cost, cost-effectiveness, and burden. The proposal is also consistent with the
requirements of the CWA. This satisfies section 205 of the UMRA. As part of this rulemaking,
EPA had identified and considered a reasonable number of regulatory alternatives. (See Section
VII for NPDES Scenarios and Section VHI for effluent guidelines technology options). Section
XE compares the costs across these alternatives. Section X.H provides a cost-effectiveness
analysis that shows that the proposed BAT Option is the most cost-effective of these alternatives.
Sections VII and VTJI of the preamble are devoted to describing the Agency's rationale for each
regulatory decision. Section IV of this document further summarizes EPA's rationale for revising
the existing regulations.
D. Executive Order 13045: "Protection of Children from Environmental Health
Risks and Safety Risks"
Executive Order 13045 (62 FR 19885, April 23,1997) applies to any rule that: (1) is
determined to be "economically significant" as defined under E.O. 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the Agency must evaluate the
environmental health and safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and reasonably feasible alternatives
considered by the Agency.
364
-------
"B :s proposed rule is subject to E.O. 13045 because it is an economically significant
regulatory action as defined by E.0.12866, and we believe that the environmental health or safety
risks addressed by this action have or may have disproportionate effects on children.
Accordingly, we have evaluated, to the extent possible, the environmental health or safety effects
of pollutants from CAFOs on children. The results of this evaluation are contained in sections
V.C and XI.B of the preamble as well as the Environmental Assessment and Benefits Assessment
(these documents have been placed in the public docket for the rule).
The Agency believes that the following pollutants have or may have a disproportionate
risk to children: nitrates, pathogens, trace metals such as zinc, arsenic, copper, and selenium,
pesticides, hormones, and endocrine disrupters. These health risks are summarized in Section
V.C and described in detail in the Environmental Assessment. With the exception of nitrates in
drinking water, the Agency has very little of the detailed information necessary to conduct an
assessment of these risks to children for these pollutants. The Agency solicits risk and exposure
data and models that could be used to characterize the risks to children's health from CAFO
pollutants.
There is evidence that infants under the age of six months may be at risk from
methemoglobinemia caused by nitrates in private drinking water wells, typically when ingesting
water with nitrate levels higher than 10 micrograms/liter. The Agency only has enough
information to determine that a chronic dose of 10 micrograms/liter may cause an adverse health
effect, but there is no dose-response function for nitrates, nor does the Agency have other
information necessary to conduct a detailed health risk assessment (for example, the actual
number of cases of methemoglobinemia are not reported and are thus highly uncertain). Instead,
the Agency has estimated the reduction in the number of households that will be exposed to
drinking water with nitrate levels above 10 micrograms/liter in Chapter 8 of the Benefits
Assessment (noting that the Agency does not have information on the number of households
exposed to nitrates that also have infants). The Agency assumes that nitrate levels lower than 10
micrograms/liter pose no risk of methemoglobinemia.
The Agency estimates that there are approximately 13.5 million households with drinking
water wells in counties with animal feeding operations. Of these, the Agency estimates that
approximately 1.3 million households are exposed to nitrate levels above 10 micrograms/liter.
The Agency further estimates that approximately 166,000 households would have their nitrate
levels brought below 10 micrograms/liter under the two-tier structure. Approximately 161,000
households would have their nitrate levels brought below 10 micrograms/liter under the three-tier
structure. Furthermore, the Agency estimates that options more stringent than those proposed
would have small incremental changes in pollutant loadings to groundwater (see the Technical
Development Document). Thus, the Agency expects the number of additional households
protected from nitrate levels greater than 10 micrograms/liter would be negligible under more
stringent options. The Agency therefore does not believe that requirements more stringent than
those proposed would provide meaningful additional protection of children's health risks from
methemoglobinemia. Furthermore, the Agency is only able to regulate groundwater quality
through NPDES permits if there is a direct hydrologic connection to surface water (see Section
VHC.2.J).
365
-------
Methemoglobinemia is only one children's health risk cai-i, J by CAFO pollutants, as
discussed above, in Section V.C, and elsewhere in the record. It was the only risk to children's
health which the Agency was able to quantify (if incompletely) in any way. The options
considered by the Agency, as well as the rationale for the proposed options, are discussed in detail
in Sections Vn and Vffl of this preamble. To the extent possible under the authority of the CWA,
EPA chose options that were protective of environmental and human health, including children's
health. These option selections were based on the best risk assessments possible given the limited
data available. The public is invited to submit or identify peer-reviewed studies and data, of
which the Agency might not be aware that assessed results of early life exposure to nitrates or any
other pollutant discharged by CAFOS.
E. Executive Order 13084: Consultation and Coordination With Indian Tribal
Governments
Under Executive Order 13084, EPA may not issue a regulation that is not required by
statute that significantly or uniquely affects the communities of Indian tribal governments, and
that imposes substantial direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance costs incurred by the tribal
governments, or EPA consults with those governments. If EPA complies by consulting, Executive
Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately
identified section of the preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a summary of the nature of their
concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order
13084 requires EPA to develop an effective process permitting elected and other representatives
of Indian tribal governments "to provide meaningful and timely input in the development of
regulatory policies on matters that significantly or uniquely affect their communities."
Today's rule does not significantly or uniquely affect the communities of Indian tribal
governments nor imposes substantial direct compliance costs on them. First, there are currently no
tribal governments that have been authorized to issue NPDES permits. Thus, there will be no
burden to tribal governments. Second, few CAFO operations are located on tribal land.
Therefore, compliance costs to tribal communities will not be significant. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to this rule.
However, EPA has let tribal communities know about this rulemaking through a
presentation of potential rule changes at the National Environmental Justice Advisory Committee
meeting in Atlanta in June, 2000 and through notices in tribal publications.
F. Paperwork Reduction Act
The information collection requirements in this proposed rule have been submitted for
approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. An Information Collection Request (ICR) document has been prepared by
EPA (ICR No. 1989.01) and a copy may be obtained from Sandy Farmer by mail at Collection
Strategies Division; U.S. Environmental Protection Agency (2822); 1200 Pennsylvania Ave., NW,
366
-------
Washington, DC 20460, by email a? farmer.sandy@epamail.epa.gov, or by calling (202)
260-2740. A copy may also be downloaded off the internet at http://www.epa.gov/icr.
Today's proposed rule would require all animal feeding operations (AFOs) that meet the
proposed CAFO definition to apply for a permit and develop a certified permit nutrient plan and
to implement that plan. Implementation of the plan includes the cost of recording animal
inventories, manure generation, field application of manure and other nutrients (amount, rate,
method, incorporation, dates), manure and soil analysis compilation, crop yield goals and
harvested yields, crop rotations, tillage practices, rainfall and irrigation, lime applications,
findings from visual inspections of feedlot areas and fields, lagoon emptying, and other activities
on a monthly basis. Records may include manure spreader calibration worksheets, manure
application worksheets, maintenance logs, and soil and manure test results.
The average annual burden for this rule covering both the private and public sector for the
three-tiered option is 1.6 million hours and $37 million annually; for the two-tiered option, burden
is 1.2'million hours annually at $29 million annually. These values do not account for State
programs that may already be requiring some of the recordkeeping and reporting requirements
already. Thus, this burden would be an overestimate to the degree that some States already
require such actions.
For the three-tiered structure, the average annual CAFO burden is estimated to be 80 hours
with the frequency of responses based on requirements ranging from two times per year to once
every five years. There are 19,519 likely CAFO respondents and 28 states. Under mis scenario,
the state annual average burden is estimated at 3,214 hours. The average annual operation and
maintenance costs are estimated at $4.3 million for CAFOs and $60,000 for States; labor costs are
estimated at $28.9 million for CAFOs and $2.6 million for States; capital costs are estimated at
$ 1.6 million for CAFOs and $0.0 for States.
For the two-tiered structure, CAFO average annual burden per respondent is 81 hours and
the State burden is 2,500 hours. There are 15,015 likely CAFO respondents and 28 states. The 28
state count is an average over three years assuming that half the delegated states will have a
program established in year one, half in year 2 and all in year three. Average annual operation and
maintenance costs are $3.3 million for CAFOs and $60,000 for States; labor costs are $22.6
million for CAFOs and $2.0 million for States; capital costs are $1.3 million for CAFOs and $0.0
for States.
The burden required for this rulemaking will allow FJ*A to determine whether a CAFO
operator is monitoring his waste management system in an environmentally safe way. This data
will be used to assess compliance with the rule and help determine enforcement cases. The
Permit Nutrient Plan data requirements ensure that the CAFO owner has established the
appropriate application rate for their fields on which they spread manure; is providing adequate
operation and maintenance for the storage area and feedlot, and is meeting the requirements to
keep agriculture waste out of the Nation's waters. The information requested herein is mandatory
(33 U.S.C. 1318 (Section 308 of the Clean Water Act)). Twqhe Agency is requesting comment in
367
-------
this proposal on how much, if any of this information should be confidential r isiness inform-:.:ion.
Burden means the total time, effort, or financial resources expended by persons to
generate, maintain, retain, disclose or provide information to or for a Federal agency. Burden
estimates include the time needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing information; adjust the
existing ways to comply with any previously applicable instructions and requirements; train
personnel to be able to respond to a collection of information; search data sources; complete and
review the collection of information; and transmit or otherwise disclose the information.
Additional burden has been estimated for off-site recipients who must certify that they are
applying manure in an appropriate manner.
An Agency may not conduct or sponsor, and a person is not required to respond to a
collection of information unless the collection form displays a currently valid OMB control
number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9 and 48
CFR Chapter 15. ....'-'
Comments are requested on the Agency's need for this information, the accuracy of the
provided burden estimates, and any suggested methods for minimizing respondent burden,
including through the use of automated collection techniques. Send comments on the ICR to the
Director, Collection Strategies Division; U.S. Environmental Protection Agency (2822); 1200
Pennsylvania Ave., NW, Washington, DC 20460; and to the Office of Information and Regulatory
Affairs, Office of Management and Budget, 725 17th St., N.W., Washington, DC 20503, marked
"Attention: Desk Officer for EPA." Include the ICR number in any correspondence. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days after [Insert date of
publication in the FEDERAL REGISTER], a comment to OMB is best assured of having its
full effect if OMB receives it by [Insert date 30 days after publication in the FEDERAL
REGISTER]. The final rule will respond to any OMB or public comments on the information
collection requirements contained in this proposal.
G. Executive Order 13132: 'Tederalism"
Executive Order 13132, entitled "Federalism" (64 FR 43255, August 10,1999), requires
EPA to develop an accountable process to ensure "meaningful and timely input by State and local
officials in the development of regulatory policies that have Federalism implications." "Policies
that have Federalism implications" is defined in the Executive Order to include regulations that
have "substantial direct effects on the States, on the relationship between the national government
and the States, or on the distribution of power and responsibilities among the various levels of
government."
This proposed rule does not have Federalism implications. It will not have substantial
direct effects on the States, on this relationship between the national government and the States, or
on the distribution of power and responsibilities among the various levels of government, as
368
-------
specified in Executive Order 13132. EPA estimates that the average annual impact on all
authorized States together is $6.0 million. EPA does not consider an annual impact of $6 million
on States a substantial effect. In addition, EPA does not expect this rule to have any impact on
local governments.
Further, the revised regulations would not alter the basic State-Federal scheme established
in the Clean Water Act under which EPA authorizes States to carry out the NPDES permitting
program. EPA expects the revised regulations to have little effect on the relationship between, or
the distribution of power and responsibilities among, the Federal and State governments. Thus,
Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA policy, EPA consulted
with representatives of State and local governments in developing this proposed rule. EPA sent a
summary package outlining the proposed changes to the State and local associations that represent
elected officials including the National Governor's Association, National Conference of State
Legislators, U.S. Conference of Mayors, Council of State Governments, International City/County
Management Association, National Association of Counties, National Association of Towns and
Townships, and County Executives of America. In addition, as discussed in Section XD.F., there
was State representation on the CAFO Regulation Workgroup.
EPA received four responses from these national associations, the National Governor's
Council, the National League of Cities, the National Council of State Legislators and the National
Association of Conservation Districts. EPA also received a letter from the Governor of Delaware
and the Delaware Congressional delegation. The National Governor's Association (NGA), the
National League of Cities (NLC) and the National Association of Conservation Districts (NACD)
disagree with EPA's assessment that the rule would have minimal impact on the States. Except
for this issue, the NLC supported the rule package especially the coverage of poultry and
immature animals, the clarification of stormwater runoff exemptions, the lower threshold, and the
seven strategic issues EPA listed to address pollution from animal feeding operations. NLC
encouraged EPA to exercise its authority to issue NPDES permits where a delegated State has not
taken appropriate action.
NGA and Delaware want the flexibility to design functionally equivalent programs. NGA
and NACD expressed concern regarding lowering the threshold as this would bring in more
entities to be permitted and the States already have a permit backlog. In addition, they are
concerned that 319 and EQTP funds will no longer be available to operations that are defined as
CAFOs. Another concern is the elimination of the 25 year/24 hour exemption. NGA comments
address the burden on the State permitting authority (backlog issue) and the unfairness of facilities
that work with states to eliminate discharges would still have to get a permit. On the issue of
adequate public involvement in general permits as well as the site specific requirements of the
Effluent Limitation Guideline, NGA is concerned the advantage of general permits as a time saver
for the states may be lost. In response to NGA's concerns, EPA met with NGA and discussed the
package and its potential impacts. EPA, also upon request, met with the National Association of
State Legislators to review the package and answer their questions. (See Section IX for discussion
of alternative State programs. See Section VII.B for a discussion of rule scope. See Section X.G
369
-------
for costs to permitting authorities. See Section VQ.C for discussion of the 25 year/24 hour torm
exemption. See Section VILE for discussion of public involvement.)
The primary concern raised by the States represented on the CAFO Regulation Workgroup
was to clarify and simplify the rules to make them more understandable and easier to to
implement. Many of the proposed changes were made with this objective in mind. Also, the
States wanted EPA to accept functionally equivalent State programs. To address this concern, as
stated in the Joint Unified USDA/EPA AFO Strategy (see "Strategic Issue #3"), where a State can
demonstrate that its program meets the requirements of an NPDES program consistent with 40
CFR Part 123, EPA is proposing to amend the current NPDES authorization to recognize the State
program. In addition, States were concerned about the cost of implementing any changes to the
program. EPA believes the costs to the States for implementing this proposed rule will not be
high. EPA is assuming that all States will adopt the sample general permit. Some States already
have a general permit that would just need to be modified.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote
communications between EPA and State and local governments, EPA specifically solicits
comment on this proposed rule from State and local officials.
H. Executive Order 12898: 'Tederal Actions to Address Environmental Justice
in Minority Populations and Low-Income Populations"
The requirements of the Environmental Justice Executive Order are that ..."EPA will...
review the environmental effects of major Federal actions significantly affecting the quality of the
human environment. For such actions, EPA reviewers will focus on the spatial distribution of
human health, social and economic effects to ensure that agency decisionmakers are aware of the
extent to which those impacts fall disproportionately on covered communities." EPA has
determined that this rulemaking is economically significant. However, the Agency does not
believe this rulemaking will have a disproportionate effect on minority or low income
communities. The proposed regulation will reduce the negative affects of CAFO waste in our
nation's waters to benefit all of society, including minority communities.
The National Environmental Justice Advisory Committee (NEJAC) submitted a set of
recommendations to EPA regarding CAFOs that included recommendations to be addressed in
revisions to EPA's regulations for CAFO's. Each recommendation is addressed below.
The NEJAC recommended that EPA "promulgate new, effective regulations that set
uniform, minimum rules for all AFOs and CAFOs in the United States." In response, EPA
believes that today's proposed rule revisions would represent new, uniform and effective
requirements for CAFOs (AFOs by definition are not point sources and so would not be subject to
today's proposed CAFO rules).
The Committee requested that EPA impose a zero discharge standard on runoff from land
application of CAFO wastes. For the reasons described in section VDI. C.3., BAT Options
370
-------
Considered, of today's notice, EPA believes it is not appropriate to set a technology-based
standard at this level with respect to land application runoff.
NET AC requested that EPA prohibit or restrict the siting of facilities in certain areas such
as flood plains. Siting of private industry is primarily a local issue and should be addressed at the
local level. Discharge limitations proposed today should, however, discourage operators from
locating in flood plains. Proposed requirements for swine, veal and poultry CAFOs would require
no discharge under any circumstances. Beef and dairy CAFOs would have to comply with zero
discharge except in the event of a chronic or catastrophic storm which exceeds the 25 year, 24
hour storm. If existing operations are located in flood plains it is in their best interest to divert
uncontaminated storm water away from their production area to avoid inundation of the
production area and potential breaching of their manure storage system during flood events. EPA
proposes to prohibit manure application to crop or pasture land within 100 feet of surface waters,
tile intake structures, agricultural drainage wells, and sinkholes which will also minimize the risk
of discharge under flood conditions.
NEJAC requested monitoring requirements in the rule. EPA has proposed an appropriate
set of monitoring requirements to be included in CAFO permits (See section Xffl of today's
notice).
NEJAC also requested public notification of the construction or expansion of CAFOs or
issuance of permits. Under today's proposed rules, EPA would require individual permits, which
are subject to individual public notice and comment, for facilities that are located in an
environmentally sensitive area; have a history of operational or compliance problems; are an
exceptionally large or significantly expanding facility; or where the Director is aware of
significant public concern about water quality impacts from the CAFO. For all other facilities that
are to be covered by general permits, for purposes of public notice, today's proposal would require
the permitting authority to publish on a quarterly basis its receipt of Notices of Intent (NOIs)
submitted by CAFOs.
NEJAC further recommended that EPA require States and tribes to develop inspection
programs that allow unannounced inspections of all CAFOs and to make these programs available
for public comment. This concern is already addressed by existing Clean Water Act requirements.
Specifically, under the Act, EPA may conduct unannounced inspections, and States must have the
authority to inspect to the same extent as EPA. Although there is no specific requirement that
State inspection plans be made publicly available, they may be available under State law.
NEJAC requested that EPA require the adoption of non-lagoon technology. Section XHI
of today's notice describes the control technologies that EPA has investigated and which ones
EPA proposes to identify in these regulations as the best available technologies. As described in
Section XIJJ, this proposal finds that it would not be appropriate to prohibit the use of lagoon
technologies.
NEJAC recommended requiring States and tribes to implement remediation programs for
phased-out CAFO operations. In today's proposed rule, EPA proposes to require a CAFO to
371
-------
remain under permit coverage until it no longer has the potential to discharge manure or
associated wastewaters..
Finally, NEJAC recommended that EPA impose stringent penalties on violating facilities.
The Clean Water Act provides authority to subject violators to substantial penalties. The issue of
which penalties are appropriate to impose in individual situations is beyond the scope of this
rulemaking. -
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of
1995, (Pub L. No. 104-113 Sec. 12(d) 15 U.S.C. 272 note) directs EPA to use voluntary
consensus standards in its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures, and business practices) that are
developed or adopted by voluntary consensus standard bodies. The NTTAA directs EPA to
provide Congress, through the Office of Management and Budget (OMB), explanations when the
Agency decides not to use available and applicable voluntary consensus standards.
This rulemaking involves technical standards. The rule requires operations defined as
CAFOs in the beef and dairy subcategories to monitor groundwater for total dissolved solids
(TDS), total chlorides, fecal, coliform, total coliform, ammonia-nitrogen and TKN. EPA
performed a search to" identify potentially voluntary consensus standards that could be used to
measure the analytes in today's proposed guideline. EPA's search revealed that consensus
standards exist and are already specified in the tables at 40 CFR Part 136.3 for measurement of
many of the analytes. .All pollutants in today's proposed rule have voluntary consensus methods.
EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the
public to identify potentially-applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
XIV. Solicitation of Comments
A. Specific Solicitation of Comment and Data
EPA solicits comments on all aspects of today's proposal. In addition, throughout this
preamble, EPA has solicited specific comments and data on many individual topics. The Agency
reiterates its interest in receiving comments and data on the following issues:
1. EPA solicits comment on the use of a two tier structure based on lowering the existing
1,000 animal unit threshold to 500 for determining which AFOs are defined as CAFOs, and the
elimination of the existing 300 to 1,000 animal unit category. EPA also solicits comment on the
effect of a 500 AU threshold on the horse, sheep, lamb and duck sectors, as well as on the use of a
750 animal unit threshold for all sectors.
372
-------
2. EPA solicits comment on the use of a three tier structure, including the proposed
criteria that could result in an AFO in the middle Group being defined as a CAFO and on whether
to use different criteria that provide more flexibility than those in today's proposal.
3. EPA solicits comment on revising the requirements for designation to eliminate the
direct contact and man-made device criteria from the designation requirements of the CAFO
regulations, and allow the designation of CAFOs by EPA in States with NPDES authorized
programs. EPA also solicits comment on whether or not to eliminate the "on-site" requirement
for conducting inspections and, instead, allow other forms of site-specific information gathering to
be used.
4. EPA solicits comment on its proposal to clarify the definition of an AFO to clearly
distinguish feedlots from pasture land and clarify coverage of winter feeding operations.
5. EPA solicits comment on eliminating the use of the term "animal unit" or AU and the
mixed animal calculation in determining which AFOs are CAFOs.
6. EPA solicits comment on removing the 25-year, 24-hour storm event exemption from
the definition of a CAFO.
7. EPA solicits comment on the proposal to remove the limitation on the type of manure
handling or watering system employed at poultry operations (i.e., subjecting dry poultry
operations to the CAFO regulations). With regard to a two tier structure, EPA solicits comment
on establishing the threshold for poultry operations at 50,000 birds or greater.
8. EPA solicits comment on including immature swine and dairy cattle, or heifers, when
confined apart from the dairy, for purposes of defining potential CAFOs. With regard to a two
tier structure, EPA solicits comment on establishing the threshold limit for immature swine
(weighing 55 pounds or less) at 5,000.
9. EPA solicits comment on requiring, under a two tier structure, all CAFOs to apply for a
NPDES permit and issuing permits to those operations that cannot demonstrate they have no
potential to discharge pollutants.
10. EPA solicits comment on requiring, under a three tier structure, all AFOs from 300
AU to 1000 AU to certify they do not meet threshold conditions, receive a determination they
have no potential to discharge, or apply for a permit.
11. EPA solicits comments on the proposed co-permitting provisions and the factors for
determining substantial operational control. EPA solicits comment on whether there are
additional factors that indicate substantial operational control which should be included in the
regulation. EPA also requests comment on how to structure the co-permitting provisions of the
rulemaking to achieve the intended environmental outcome without causing negative impacts on
growers. EPA requests comments on its cost passthrough assumptions in general and as they
relate to the analysis of processor level impacts under the proposed co-permitting requirements.
12. EPA solicits comment on addressing discharges to ground water with a direct
hydrological connection to surface water. EPA requests comment on how a permit writer might
identify CAFOs at risk of discharging to surface water via ground water. EPA is also requesting
comment on the proposal to place the burden on the permit applicant to provide a hydrologist's
statement when rebutting the presumption that a CAFO has potential to discharge to surface water
via direct hydrological connection with ground water. EPA solicits comment on the assumption
that 24 percent of the affected operations have a hydrologic connection to surface waters.
373
-------
13. fiPA solicits comment on the definition of CAFO including the production area and
land application area, and on the proposed requirements that would subject land application to
specified permit requirements.
14. EPA solicits comment on defining the agricultural storm water discharge exemption
to apply only to those discharges which occurred despite the implementation of all the practices
required by today's proposal at CAFO land application areas.. EPA also requests comments on the
alternative applications of the agricultural storm water discharge exemption discussed.
15. EPA solicits comment on requiring a certification from off-site recipients of CAFO-
generated manure that such manure is being land applied according to proper agricultural
practices or, the alternative of tracking such off-site transfers through record keeping and
providing information to the recipients regarding proper management.
16. EPA solicits comment on restricting the land application of manure to those
conditions where it serves an agricultural purpose and does not result in pollutant discharges to
waters of the U.S. (potentially including prohibiting land application at certain times or using
certain methods).
17. EPA solicits comment on requiring CAFO operators to develop and implement a PNP
for managing manure and wastewater at both the production area and land application area.
18. EPA invites comment on today's proposal to define PNPs as the effluent guideline
subset of elements addressed in the CNMP. EPA is especially interested in knowing whether PNP
is the best term to use to refer to the regulatory components of the CNMP, and whether EPA's
explanation of both the differences and relationship between these two terms (PNP and CNMP) is
clear and unambiguous. EPA is also soliciting comments on whether a PNP with the addition of
erosion control practices would be sufficient additional controls to prevent runoff. EPA further
requests comment on the proposal to require that PNPs be developed, or reviewed and modified,
by certified planners, as well as on conditions, such as no changes to the crops, herd or flock size,
under which rewriting the PNP would not be necessary and therefore, would not require the
involvement of a certified planner.
19. EPA requests comment on the public availability of PNPs, including whether it is
proper to determine that the PNPs must be publicly available under CWA Section 402(j) and
under CWA Section 308 as "effluent data," or whether only a portion of PNP information should
be publically available. EPA solicits comment on today's proposal that the operator of a
permitted CAFO must make a copy of the PNP cover sheet and executive summary available for
public review. EPA is also requesting comment on whether CAFOs should be able to claim these
elements of the PNP as confidential business information and withhold those elements of the PNP
from public review on that basis, or alternately, that whether other portions of the PNP should be
made available as well. EPA also requests comment on the proposal to require new facilities
seeking coverage under a general permit, as well as applicants for individual permits, to submit a
copy of the PNP to the permit authority along with the NOI or permit application, and
whether, for individual permits, the PNP should be part of the public notice and comment process
along with the permit.
20. EPA is requesting public comment on the suitability of requiring erosion control as a
special condition of a NPDES permit to protect water quality from sediment eroding from fields
where CAFO manure is applied to crops. If erosion control is desirable, EPA is soliciting
comment as to which approach would be the most cost-efficient. EPA solicits comment and data
374
-------
on the costs and benefits of controlling erosion and whether erosion control should be a required
component of PNPs.
21. EPA solicits comment on requiring an operator of a permitted CAFO that ceases to be
a CAFO to maintain permit coverage until his or her facility is properly closed.
22. EPA requests comment on whether the procedures discussed regarding general
permits are adequate to ensure public participation or whether individual permits should be
required for any of the categories of facilities discussed above. Specifically, EPA requests
comment on whether individual permits should be required for a) facilities over a certain size
threshold; b) all new facilities; c) facilities that are significantly expanding; d) facilities that have
historical compliance problems; or e) operations that are located in areas with significant
environmental concerns.
23. EPA solicits comment on the applicability of the proposed revised effluent
limitations guidelines, including the thresholds under the two tier and three tier structure, the
inclusion of veal production as a new subcategory, and the changes regarding applicability to
chickens, mixed animals, and immature swine and dairy. EPA also requests comment on another
three-tier option for defining a CAFO under which the effluent guidelines proposed today would
not be applicable to facilities with 1,000 AU or less.
24. EPA solicits comment on the proposed revised effluent limitations guidelines for
CAFOs, specifically today's proposed requirements on the land application of manure and
wastewater. EPA solicits comment on the proposal to allow States to establish the appropriate
phosphorus-based method to be used as the basis for the land application rate at CAFOs.
25. EPA requests comment on its analysis and on its proposed determination that Option
3 is economically achievable as BAT for the beef and dairy sectors. In addition, consistent with
its intention at the time of the SBREFA outreach process, EPA requests comment on retaining the
25-year, 24-hour storm design standard (and thus basing BAT on Option 2) for the swine, veal
and poultry subcategories.
26. EPA solicits comment on the assumptions used for estimating the compliance cost
impacts for feedlots to implement each of the model technologies considered for the proposed
standards. EPA also solicits comment on the proposal's impact on small businesses.
27. EPA solicits comment on the new source option for dairies that would prohibit any
wastewater discharge from the production area. Specifically whether this option is technically
feasible, since it assumes that all animals in confinement will be maintained under roof.
28. EPA solicits comment on establishing BAT requirements on pathogens. Specifically
on the appropriate technologies that will reduce pathogens and the estimated cost for these
technologies.
B. General Solicitation of Comment
EPA encourages public participation in this rulemaking. EPA asks that comments address
any perceived deficiencies in the record supporting this proposal and that suggested revisions or
corrections be supported by data.
EPA invites all parties to coordinate their data collection activities with the Agency to
facilitate mutually beneficial and cost-effective data submissions. Please refer to the "For Further
Information" section at the beginning of this preamble for technical contacts at EPA.
375
-------
National Pollutant Discharge Elimin ;ion System Permit Regulation and Effluent Limitations
Guidelines and Standards for Concentrated Animal Feeding Operations Page 690 of 740
List of Subjects
40 CFR Part 112
Environmental protection, Oil pollution, Penalties, Reporting and recordkeeping
requirements.
40 CFR Part 412
Environmental protection, Feedlots, livestock, waste treatment and disposal, Water
pollution control.
Dated:
Carol M Browner,
Administrator
For the reasons set out in the preamble title 40, chapter I of the Code of Federal
Regulations is proposed to be amended as follows:
376
-------
PART 122-EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 122 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C 1251 et seq.
2. Amend § 122.21 by adding subparagraphs (i)(l)(iv) through (ix) to read as follows:
§ 122.21 Application for a permit (applicable to State programs, see § 123.25).
*****
(i)
* * *
(1)***
(iv) Either a copy of the cover sheet and executive summary of the permittee's current
Permit Nutrient Plan that meet the criteria in 40 CFR 412.37(b) and is being implemented, or
draft copies of these documents together with a statement on the status of the development of its
Permit Nutrient Plan. If the CAPO is subject to 40 CFR Part 412 and draft copies are submitted,
they must, at a minimum, demonstrate that there is adequate land available to the CAFO operator
to comply with the land application provisions of part 412 of this Chapter, if applicable, or
describe an alternative to land application that the operator intends to implement.
(v) Acreage available for application of manure and wastewater;
(vi) Estimated amount of manure and wastewater that the applicant plans to transfer off-
site;
(vii) Name and address of any person or entity that owns animals to be raised at the
facility, directs the activity of persons working at the CAFO, specifies how the animals are
grown, fed, or medicated, or otherwise exercises control over the operations of the facility;
(viii) Indicate whether buffers, setbacks or conservation tillage are implemented at the
facility to control runoff and protect water quality; and
(ix) Latitude and longitude of the CAFO, to the nearest second.
3. Section 122.23 is revised to read as follows:
§ 122.23 Concentrated animal feeding operations (applicable to State NPDES programs,
see § 123.25).
(a) Definitions applicable to this section:
(1) For land on which manure from an animal feeding operation or concentrated animal
feeding operation has been applied, the term "agricultural storm water discharge" means a
discharge composed entirely of storm water, as defined in § 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.
377
U.S. EPA Headquarters Library
Mail code 3201
1200 Pennsylvania Avenue NW
Washington DC 20460
-------
(2) An animal feeding operation or AFO is a facility where animals (other than aquatic
animals) have been, are, or will be stabled or confined and fed or maintained for a total of 45
days or more in any 12-month period. Animals are not considered to be stabled or confined
when they are in areas such as pastures or rangeland that sustain crops or forage growth during
the entire time that animals are present. Animal feeding operations include both the production
area and land application area as defined below.
OPTION 1 FOR PARAGRAPH (a)(3)
(3) Concentrated animal feeding operation or CAFO means an AFO that either:
(i) Confines a number of animals equal to or greater than the number specified in any one
or more of the following categories. For the purposes of determining the number of animals at
an operation, two or more AFOs under common ownership are considered to be a single AFO if
they adjoin each other or if they use a common area or system for the disposal of wastes. Once
an operation is defined as a CAFO, the requirements of this section apply with respect to all
animals in confinement at the operation and all wastes and waste waters generated by those
animals, regardless of the type of animal.
(A) 350 mature dairy cattle;
(B) 500 veal;
(C) 500 cattle other than veal or mature dairy cattle;
(D) 1,250 swine each weighing over 25 kilograms (approximately 55 pounds);
(E) 5000 swine each weighing less than 25 kilograms (approximately 55 pounds);
(F) 250 horses;
(G) 5,000 sheep or lambs;
(H) 27,500 turkeys;
(I) 50,000 chickens; or
(J) 2,500 ducks; or
(ii) Is designated as a GAFO under paragraph (b) of this section.
OPTION 2 FOR PARAGRAPH (a)(3):
(3) Concentrated animal feedine operation or CAFO means an AFO which either is
defined as a CAFO under paragraph (a)(3)(i) or (ii) of this section, or is designated as a CAFO
under paragraph (b) of this section. Two or more AFOs under common ownership are
considered to be a single AFO for the purposes of determining the number of animals at an
operation, if they adjoin each other or if they use a common area or system for the disposal of
wastes. Once an operation is defined as a CAFO, the requirements of this section apply with
respect to all animals in confinement at the operation and all wastes and waste waters generated
by those animals, regardless of the type of animal. '
(i) Tier 1 AFOs. An AFO is a CAFO if more than the numbers of animals specified in
any of the following categories are confined:
(A) 700 mature dairy cattle;
(B) 1,000 veal;'
(C) 1,000 cattle other than veal or mature dairy cattle;
(D) 2,500 swine each weighing over 25 kilograms (approximately 55 pounds);
(E) 10,000 swine each weighing less than 25 kilograms (approximately 55 pounds);
(F) 500 horses;
378
-------
(G) 10,000 sheep or lambs;
(H) 55,000 turkeys;
(I) 100,000 chickens; or
(J) 5,000 ducks.
(ii) Tier 2 AFOs. (A) If the number of animals confined at the operation falls within the
following ranges for any of the following categories, the operation is a Tier 2 AFO. A Tier 2
AFO is a CAFO unless it meets all of the conditions in paragraph (a)(3)(ii)(B) of this section and
its operator submits to the Director a certification that it meets those conditions. The
certification shall take the form specified in section 122.22(d).
{/J 200 to 700 mature dairy cattle,
£2} 300 to 1,000 veal,
(3) 300 to 1,000 cattle other than veal or mature dairy cattle,
(4) 750 to 2,500 swine each weighing over 25 kilograms (approximately 55 pounds),
{5} 3,000 to 10,000 swine each weighing less than 25 kilograms (approximately 55
pounds),
{& 150 to 500 horses, .
£Z13,000 to 10,000 sheep of lambs,
£5) 16,500 to 55,000 turkeys,
30,000 to 100,000 chickens, or
1,500 to 5,000 ducks.
(B) A Tier 2 AFO is not a CAFO if it meets all of the following conditions and its
operator submits to the Director a certification that it meets the following conditions:
(7) Waters of the United States do not come into direct contact with the animals confined
in the operation;
(2) There is sufficient storage and containment to prevent all pollutants from the
production area from entering waters of the United States as specified in 40 CFR Part 412.
(5) There has not been a discharge from the production area within the last five years;
(4) No part of the production area is located within 100 feet of waters of the United
States;
(5) In cases where manure or process-generated wastewaters are land applied, they will be
land applied in accordance with a Permit Nutrient Plan that includes the BMP requirements
identified at 40 CFR 412.31(b) and 412.37; and
OPTION 1 FOR PARAGRAPH (a)(3)(H)(B)(&:
(6) With respect to the off-site transfer of manure or process-generated wastewaters to
persons who receive 12 tons or more of manure or wastewater in any year, the owner or operator
will first obtain assurances that, if the manure will be land applied, it will be applied in
accordance with proper agriculture practices, which means that the recipient shall determine the
nutrient needs of its crops based on realistic crop yields for its area, sample its soil at least once
every three years to determine existing nutrient content, and not apply the manure in quantities
that exceed the land application rates calculated using one of the methods specified in
40 CFR 412.31(b)(l)(iv); adequate assurances include a certification from the recipient, the fact
that the recipient has a permit, or the existence of a State program that requires the recipient to
comply with requirements similar to 40 CFR 412.31(b). The owner or operator will provide the
379
-------
recipient of the manure with a brochure to be provided by te state permitting authority or EPA
that describes the recipient's responsibilities for appropriate manure management.
OPTION 2 FOR PARAGRAPH (a)(3)(ii)(B)(£:
(6\ With respect to manure or process-generated wastewaters that are transferred off-site,
the owner or operator will first provide the recipient of the manure with an analysis of its content
and a brochure to be provided by the State permitting authority or EPA that describes the
recipient's responsibilities for appropriate manure management.
(4) Hie term land application area means any land under the control of the owner or
operator of the production area whether it is owned, rented, or leased, to which manure and
process wastewater from the production area is or may be applied.
(5) The term operator, for purposes of this section, means:
(i) An operator as that term is defined in § 122.2; or
(ii) A person who the Director determines to be an operator on the basis that the person
exercises substantial operational control of a CAFO. Whether a person exercises substantial
operational control depends on factors that include, but are not limited to, whether the person:
(A) Directs the activity of persons working at the CAFO either through a contract or
direct supervision of, or ori-site participation in, activities at the facility;
(B) Owns the animals; or
(C) Specifies how the animals are grown, fed, or medicated.
(6) The term production area means that part of the AFO that includes the animal
confinement area, the manure storage area, the raw materials storage area, and the waste
containment areas. The animal confinement area includes but is not limited to open lots, housed
lots, feedlots, confinement houses, stall barns, free stall barns, milkrooms, milking centers,
cowyards, barnyard, exercise yards, animal walkways, and stables. The manure storage area
includes but is not limited to lagoons, sheds, liquid impoundments, static piles, and composting
piles. The raw materials storage area includes but is not limited to feed silos, silage bunkers, and
bedding materials. The waste containment area includes but is not limited to settling basins, and
areas within berms, and diversions which separate uncontaminated storm water Also included in
the definition of production area is any eggwash or egg processing facility.
(b) Designation as a CAFO. The EPA Regional Administrator, or in States with
approved NPDES programs, either the Director or the EPA Regional Administrator, may
designate any AFO as a CAFO upon determining that it is a significant contributor of pollutants
to the waters of the United States.
(1) In making this designation, the Director or the EPA Regional Administrator shall
consider the following factors:
(i) The size of the AFO and the amount of wastes reaching waters of the United States;
(ii) The location of the AFO relative to waters of the United States;
(iii) The means of conveyance of animal wastes and process waste waters into waters of
the United States;
(iv) The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency
of discharge of animal wastes and process waste waters into waters of the United States; and,
(v) Other relevant factors.
OPTION 1 FOR PARAGRAPH (b)(2)
380
-------
(2) No AFO shall be designated under this paragraph (b) until the Director or the EPA
Regional Administrator has conducted an on-site inspection of the operation and determined that
the operation should and could be regulated under the permit program; except that no inspection
is required to designate a facility that was previously defined or designated as a CAFO.
OPTION 2 FOR PARAGRAPH (b)(2)
(2) No AFO shall be designated under this paragraph (b) until the Director or the EPA
Regional Administrator has conducted an on-site inspection of the operation and determined that
the operation should >and could be regulated under the permit program; except that no inspection
is required to designate a facility that was previously defined or designated as a CAFO. In
addition, no AFO with less than 300 animal units may be designated as a concentrated animal
feeding operation unless:
(i) Pollutants are discharged into waters of the United States through a manmade ditch,
flushing system, or other similar manmade device; or
(ii) Pollutants are discharged directly into waters of the United States which originate
outside of the facility and pass over, across, or through the facility or otherwise come into direct
contact with the animals confined in the operation.
(c) Who must apply for an NPDES permit?
(1) All CAFOs must apply for a permit. For all CAFOs, the CAFO owner or operator
must apply for an NPDES permit, except as provided in paragraph (c)(2) of this section.
Specifically, the CAFO owner or operator must either apply for an individual NPDES permit or
submit a notice of intent for coverage under a CAFO general permit. If the Director has not
made a general permit available to the CAFO, the CAFO owner or operator must apply for an
individual permit.
(2) Exception. The CAFO owner or operator does not need to apply for an NPDES
permit if the owner or operator has received from the Director a determination under paragraph
(e) of this section that the CAFO has no potential to discharge.
(3) Co-perminins. Any person who is an "operator" of a CAFO on the basis that the
person exercises substantial operational control of a CAFO (see §122.23(a)(5)(ii)) must apply for
a permit. Such operators may apply for an NPDES permit either alone or together as co-
permittees with other owners or operators of the CAFO.
(d) In which case will the Director not issue an NPDES permit? The Director shall
not issue an NPDES permit if the Director has determined that the CAFO has "no potential to
discharge" pursuant to paragraph (e) of this section.
(e) "No potential to discharge" determinations.
(1) Determination bv Director. The Director, upon request, may make a case-specific
determination that a CAFO has no potential to discharge pollutants to waters of the United
States. In making this determination, the Director must consider the potential for discharges
from both the production area and any land application areas, and must also consider any
potential discharges via ground waters that have a direct hydrologic connection to surface waters.
For purposes of this subsection, the term "no potential to discharge" means that there is no
potential for any CAFO manure or waste waters to be added to waters of the United States,
without qualification. For example, a CAFO may not claim that there is no potential to discharge
even if the only pollutants that the CAFO has a potential to discharge would be exempt from
381
-------
NPDES requirements. A CAFO has a potential to discharge if it has had a discharge within the
preceding five years.
(2) Supporting information. In requesting a determination of no potential to discharge,
the CAFO owner or operator must submit any supporting information along with the request.
The Director has discretion to accept or reject any additional information that is submitted at a
later date.
(3) Requesting a "no potential to discharge" determination does notpostoone the duty to
apply for a permit. The owner or operator must apply for a permit according to the date specified
in section (f) unless it has received a no potential to discharge determination before that date.
(4) CAFO bears the risk of any actual discharge. Any unpermitted CAFO that discharges
pollutants into the waters of the United States is in violation of the Clean Water Act even if it has
received a "no potential to discharge" determination from the Director.
(f) By when must I apply for a permit for my CAFO?
(1) For all CAFOs, the owner or operator of the CAFO must apply for an NPDES permit
no later than [insert date that is three years after the date of publication of the final rule], except
as provided in subsections (2) through (6).
(2) Operations that are defined as CAFOs prior to [insert date that is three years after the
date of publication of the final rulel. For operations that are CAFOs under regulations that are in
effect prior to [insert date .that is three years after the date of publication of the final rule], the
owner or operator must apply for an NPDES permit under 40 CFR 122.21 (a) within the time
period specified in 40 CFR 122.21 (c).
(3) Operations that become CAFO new sources or new dischargers after [insert date that
is three years after the date of publication of the final rulel. For operations that meet the criteria
in 40 CFR 122.23 for being defined as a CAFO for the first time after [insert date that is three
years after the date of publication of the final rule], the owner or operator must apply for an
NPDES permit 180 days prior to the date on which they first meet those criteria.
(4) Operations that are designated as CAFOs. For operations for which EPA or the
Director has issued a case-specific designation that the operation is a CAFO, the owner or
operator must apply for a permit no later than 90 days after issuance of the designation.
(5) Persons who are operators because they exercise "substantial operational control"
over a CAFQ. Persons who the Director determines to be operators because they exercise
substantial operational control over a CAFO must apply for a permit within 90 days of the
Director's determination.
(6) No potential to discharge. Notwithstanding any other provision of this section, a
CAFO that has received a "no potential to discharge" determination under paragraph (e) of this
section is not required to apply for an NPDES permit.
(g) Are AFOs subject to Clean Water Act requirements if they are not CAFOs?
AFOs that are neither defined nor designated as CAFOs are subject to NPDES permitting
requirements if they discharge the following from a point source:
(1) Non-wet weather discharges: discharges from their production area or land
application area that are not composed entirely of storm water as defined in § 122.26(b)(13).
(2) Wet weather discharges: discharges from their land application area that are
composed entirely of storm water as defined in § 122.26(b)(13), if the discharge has been
382
-------
designated under § 122.26(a)(l)(v) as requiring an NPDES permit. Discharges may be
designated under § 122.26(a)(l)(v) if they are not agricultural storm water discharges as defined
in § 122.23(a)(l).
(h) If I do not operate an AFO but I land apply manure, am I required to have a
NPDES permit? If you have not been designated by your permit authority, you do not need a
NPDES permit to authorize the discharge of runoff composed entirely of storm water from your
manure application area. The land application of manure that results in the point source
discharge of pollutants to waters of the United States may be designated pursuant to
§ 122.26(a)(l)(v) as requiring a NPDES permit if the application is not in accordance with proper
agriculture practices. Proper agricultural practices means that the recipient shall determine the
nutrient needs of its crops based on realistic crop yields for its area, sample its soil at least once
every three years to determine existing nutrient content, and not apply the manure in quantities
that exceed the land application rates calculated using one of the methods specified in
40 CFR 412.3 l(b)(l)(iv).
(i) What must be required in NPDES permits issued to CAFOs. Permits issued to
CAFOs must require compliance with the following:
(1) All other requirements of this part.
(2) The applicable provisions of part 412.
(3) Dutv to Maintain Permit Coverage. No later than 180 days before the expiration of
the permit, the permittee must submit an application to renew its permit. However, the permittee
need not reapply for a permit if the facility is no longer a CAFO (e.g., where the numbers of
confined animals has been reduced below the level that meets the definition of a CAFO) and the
permittee has demonstrated to the satisfaction of the Director that there is no remaining potential
for a discharge of manure or associated waste waters that were generated while the operation was
a CAFO. With respect to CAFOs, this section applies instead of §§ 122.21 (d) and 122.41 (b).
(4) Co-permittees, In the case of a permit issued to more than one owner or operator of
the CAFO, the permit may allocate to one of the permit holders the sole responsibility for any
permit requirement, except that all permit holders must be jointly responsible for the
management of manure in excess of what can be applied on-site in compliance with part 412
(5) Permits issued to CAFOs that meet the applicability requirements of Subpart C (Beef
and Dairy) or Subpart D (Swine, Poultry and Veal) of 40 CFR Part 412 shall also require
compliance with paragraph (j) of this section.
(6) Permits issued to CAFOs that do not meet the applicability requirements of Subpart C
or Subpart D of 40 CFR Part 412 (including beef, dairy, swine, poultry or veal facilities not
subject to those parts, and facilities with other types of animals) shall also require compliance
with paragraph (k) of this section.
(j) What must be required in NPDES permits issued to CAFOs that are subject to
part 412, Subparts C (Beef and Dairy) and D (Swine, Poultry and Veal)? Permits issued to
CAFOs that meet the applicability requirements of Subpart C or Subpart D of 40 CFR Part 412
must require compliance with all of the following:
(1) Requirements to use the method in 40 CFR 41<2.3 l(b)(l)(iv) chosen by the Director to
determine phosphorous field conditions and to determine appropriate manure application rates.
The permit shall specify the factors to be considered and the analytical methods to be employed
383
-------
when determining those rates.
(2) Prohibitions against or restrictions on applying manure to land during times and using
methods which, in light of local crop needs, climate, soil types, slope and other factors, would
not serve an agricultural purpose and would be likely to result in pollutant discharges to waters of
the United States.
(3) Requirement to notify the Director when the permittee's Permit Nutrient Plan has
been developed or revised. Notification of the development of the permittee's initial Permit
Nutrient Plan must be submitted no later than 90 days after the CAFO submits its NOI or obtains
coverage under an individual permit. With the notice, the permittee shall provide a copy of
the cover sheet and executive summary of the permittee's current Permit Nutrient Plan mat has
been developed under 40 CFR 412.37(b).
OPTION 1 FOR PARAGRAPHS (j)(4) AND (5)
(4) Transfer of manure to other persons. The Director may waive the requirements of this
paragraph if an enforceable state program subjects the recipient of CAFO wastes to land
application requirements that are equivalent to the requirements in 40 CFR 4l2.31(b). The
requirements of paragraph (f) of this section apply only to transfers to persons who receive 12
tons or more of wastes from the CAFO in any year. Prior to transferring manure and other
wastes to other persons, the permittee shall:
(i) Obtain frorn each intended recipient of the CAFO waste (other than haulers that do not
land apply the waste) a certification that the recipient will do one of the following. The
certification must contain a statement that the recipient understands that the information is being
collected on behalf of the U.S. Environmental Protection Agency or State and that there are
penalties for falsely certifying. The permittee is not liable if the recipient violates its
certification;
(A) Land apply the wastes in accordance with proper agriculture practices, which means
that the recipient shall determine the nutrient needs of its crops based on realistic crop yields for
its area, sample its soil at least once every three years to determine existing nutrient content, and
not apply the manure in quantities that exceed the land application rates calculated using the
method specified in 40 CFR 412.31(b)(l)(iv) chosen by the Director;
(B) Land apply the wastes in compliance with the terms of an NPDES permit that
addresses for discharges from the land application area; or
(C) Use the manure for purposes other than land application.
(ii) Obtain from any commercial waste hauler the name and location of the recipient of
the wastes, if known;
(iii) Provide the recipient of the manure with an analysis of its content; and
(iv) Provide the recipient of the manure with a brochure to be provided by the State
permitting authority or EPA that describes the recipient's responsibilities for appropriate manure
management.
(5) Record keeping requirements. Requirements to keep, maintain for five years and
make available to the Director or the Regional Administrator:
(i) Records of the inspections and of the manure sampling and analysis required by 40
CFR 412.37(a);
(ii) Records required by 40 CFR 412.37(e) related to the development and
384
-------
implementation of Permit Nutrient Plans required by 40 CFR 412.37(b); and
(iii) Records of each transfer of wastes to a third party, including date, recipient name and
address, quantity transferred, an analysis of manure content and a copy of the certifications
required by paragraph (j)(4) of this section. If the waste is transferred to a commercial waste
hauler, records of where the hauler indicated it would take the waste, if known. If the waste is to
be packaged as fertilizer, incinerated or used for a purpose other than direct land application,
records of the analysis of the manure are not required.
OPTION 2 FOR PARAGRAPHS (j)(4) and (5):
(4) Transfer of manure to other persons. Prior to transferring manure and other wastes to
other persons, the permittee shall:
(i) Provide the recipient of the manure with an analysis of its content;
(ii) Provide the recipient of the manure with a brochure to be provided by the State
permitting authority or EPA that describes the recipient's responsibilities for appropriate manure
management; and
(iii) Obtain from any commercial waste hauler the name and location of the recipient of
the wastes, if known.
(5) Record keeping requirements. Requirements to keep, maintain for five years and
make available to the Director or the Regional Administrator:
(i) Records of the inspections and of the manure sampling and analysis required by 40
CFR 412.37(a);
(ii) Records required by 40 CFR 412.37(e) related to the development and
implementation of Permit Nutrient Plans required by 40 CFR 412.37(b); and
(iii) Records of each transfer of wastes to a third party, including date, recipient name and
address, quantity transferred, and an analysis of manure content. If the waste is transferred to a
commercial waste hauler, records of where the hauler indicated it would take the waste, if
known. If the waste is to be packaged as fertilizer, incinerated or used for a purpose other than
direct land application, records of the analysis of the manure are not required.
(6) For CAFOs subject to 40 CFR 412.43 (existing swine, poultry and veal facilities), the
Director must determine based on topographical characteristics of the region whether there is a
likelihood that a CAFO may discharge from the production area via ground water that has a
direct hydrologic connection to waters of the United States. If the Director finds there is such a
likelihood, and the Director determines there is the potential for an excursion of State water
quality standards due to such discharge, the Director must impose any water quality-based
effluent limits necessary to comply with §122.44(d). The Director may omit such water quality-
based effluent limits from the permit if the permittee has provided a hydrologist's statement that
demonstrates to the Director's satisfaction that there is no direct hydrologic connection from the
production area to waters of the United States.
(k) What additional terms and conditions must be required in NPDES permits
issued to CAFOs that are not subject to part 412, Subparts C and D?
(1) All CAFOs not subject to part 412. In cases where a CAFO has fewer than the
number of animals necessary to make it subject to the requirements 40 CFR Part 412, and the
Director is establishing effluent limitations on a case-by-case basis based on best professional
judgment under section 402(a)(l)(B) of the Act, the Director shall consider the need for the
385
-------
following effluent limitations:
(i) Limits on the discharge of process wastewater pollutants from the production area,
including limits based on the minimum duration and intensity of rainfall events for which the
CAFO can design and construct a system to contain all process-generated wastewaters from such
event; -
(ii) Limits on discharges resulting from the application of manure to land, including
restrictions on the rates of application of nitrogen and phosphorous;
(iii) Requirements to implement best management practices to ensure the CAFO achieves
limitations under paragraphs (1) and (2);
(iv) Requirements to develop and implement a Permit Nutrient Plan that addresses
requirements developed under paragraphs (1), (2) and (3); and
(v) If the CAFO is in an area with topographic characteristics that indicate a likelihood
that ground water has a direct hydrologic connection to waters of the United States, requirements
neceisary to comply with § 122.44, unless the permittee submits a hydrologist's statement that
the production area is not connected to surface waters through a direct hydrologic connection.
(2) CAFOs subject to part 412, Subparts A andB. In addition to the applicable effluent
limitations, when developing permits to be issued to CAFOs with horses, sheep or ducks subject
to Subparts A and B of 40 CFR 412, the Director shall consider the need for effluent limitations
for wastestreams not covered by Subparts A and B, including the need for the requirements
described in paragraphs (k)(l)(ii) through (v) of this section.
(1) How will the public know if a CAFO is implementing an adequate permit
nutrient plan?
(1) The Director shall make publicly available via the worldwide web or other publicly
available source, and update every 90 days:
(i) A list of all CAFOs that have submitted a notice of intent for coverage under a general
permit, and
(ii) A list of all CAFOs that have submitted a notice that their permit nutrient plan has
been developed or revised.
(2) The Director shall make publicly available the notices of intent, notice of plan
development, and the cover sheet and executive summary of the permittee's Permit Nutrient
Plan. If the Director does not have a copy of the cover sheet and executive summary of the
permittee's current Permit Nutrient Plan and the cover sheet and executive summary are not
publicly available at the CAFO or other location, the Director shall, upon request from the
public, obtain a copy of the cover sheet and executive summary. Until required by the Director,
the CAFO operator is not required to submit cover sheet or executive summary to the Director.
(3) Confidential business information. The information required to be in Permit Nutrient
Plan cover sheet and executive summary, and required soil sampling data, may not be claimed as
confidential. Any claim of confidentiality by a CAFO in connection with the remaining
information in the Permit Nutrient Plan will be subject to the procedure in 40 CFR Part 2.
4. Section 122.28 is amended by:
a. Removing the word "or" at the end of paragraph (a)(2)(i) and adding the word "or" at
the end of paragraph (a)(2)(ii)(D).
386
-------
b. Adding paragraph (a)(2)(iii).
c. Adding two sentences to the end paragraph (b)(2)(ii)
d. Redesignating paragraph (b)(3)(i)(G) as paragraph (b)(3)(i)(H) and adding a new
paragraph (b)(3)(i)(G).
e. Adding paragraph (b)(3)(vi).
The additions read as follows:
§ 122.28 General permits (applicable to State NPDES programs, see § 123.25).
(a) * * *
(2) * * *
(iii) Concentrated animal feeding operations.
* * *
(b) * * *
(2) * * *
(ii) * * * Notices of intent for coverage under a general permit for confined animal
feeding operations must include: a topographic map as described in § 122.21(f)(7); name and
address of any other entity with substantial operational control; a statement whether the owner or
operator has developed and is implementing its Permit Nutrient Plan and, if not, the status of the
development of its Permit Nutrient Plan. New sources subject to 40 CFR Part 412 shall also
provide a copy of a draft plan that, at a minimum, demonstrates that there is adequate land
available to the CAFO operator to comply with the land application provisions of 40 CFR Part
412 or describes an alternative to land application that the operator intends to implement.
* *
(3)
* * *
(G) The discharge is from a CAFO. In addition to the other criteria in paragraph (b)(3) of
this section, the Director shall consider whether general permits are appropriate for the following
CAFOs:
(1) CAFOs located in an environmentally or ecologically sensitive area;
(2J CAFOs with a history of operational or compliance problems;
(jj CAFOs that are exceptionally large operation as determined by the Director; or
(4) Significantly expanding CAFOs.
* * *
(vi) Prior to issuing any general permits for CAFOs, the Director, after considering input
from the public, shall issue a written statement of its policy on which CAFOs will be eligible for
general permits, including a statement of how it will apply the criteria in paragraph (b)(3)(i)(G)
of this section.
6. Remove Appendix B to part 122.
9. Part 412 is amended to read as follows:
387
-------
PART 412 - CONCENTRATED ANIMAL FEEDING OPERATIONS
(CAFOs) POINT SOURCE CATEGORY
•Sec.
412.0 General applicability.
412.1 General definitions.
412.2 General pretreatment standards.
Subpart A • Horses and Sheep
412.10 Applicability.
412.11 Special definitions.
412.12 Effluent limitations attainable by the application of the best practicable control
technology currently available (BPT).
412.13 Effluent limitations attainable by the application of the best available control technology
economically achievable (BAT).
412.15 New source performance standards (NSPS).
Subpart B - Ducks
412.20 Applicability.
412.21 Special definitions.
412.22 Effluent limitations attainable by the application of the best practicable control
technology currently available (BPT).
412.25 New source performance standards (NSPS).
412.26 Pretreatment standards for new sources (PSNS).
Subpart C - Beef and Dairy
412.30 Applicability
412.31 Effluent limitations attainable by the application of best practicable control
technology currently available (BPT)
412.32 Effluent limitations attainable by the application of the best control technology for
conventional pollutants (BCT)
412.33 Effluent limitations attainable by the application of the best available control technology
economically achievable (BAT).
412.35 New source performance standards (NSPS).
412.37 Additional measures
388
-------
Subpart D - Swine, Veal and Poultry
412.40 Applicability
412.41 Effluent limitations attainable by the application of best practicable control
technology currently available (BPT)
412.42 Effluent limitations attainable by the application of the best control technology for
conventional pollutants (BCT)
412.43 Effluent limitations attainable by the application of the best available control technology
economically achievable (BAT).
412.45 New source performance standards (NSPS).
Authority: 33 U.S.C. 1311,1314,1316,1317,1318,1342 and 1361.
§ 412.0 Genera! applicability.
This part applies to process wastewater discharges resulting from concentrated animal
feeding operations (CAFOs). Manufacturing activities which may be subject to this part are
generally reported under one or more of the following Standard Industrial Classification (SIC)
codes: SIC 0211, SIC 0213, SIC 0241, SIC 0259, or SIC 3523 (1987 SIC Manual).
§ 412.1 General Definitions.
As used in this part:
(a) The general definitions and abbreviations at 40 CFR part 401 shall apply.
(b) Concentrated Animal Feeding Operation (CAFO) is defined at 40 CFR 122.23(a)(3).
(c) Fecal coliform means the bacterial count (Parameter 1) at 40 CFR §136.3 in Table 1A,
which also cites the approved methods of analysis.
(d) Process wastewater means water directly or indirectly used in the operation of the CAFO
for any or all of the following: spillage or overflow from animal or poultry watering systems;
washing, cleaning, or flushing pens, barns, manure pits, or other CAFO facilities; direct contact
swimming, washing or spray cooling of animals; litter or bedding; dust control; and stormwater
which comes into contact with any raw materials, products or by-products of the operation.
(e) Certified specialist shall mean someone who has been certified to prepare
Comprehensive Nutrient Management Plans (CNMPs) by USDA or a USDA sanctioned
organization.
(f) Land application area means any land under the control of the CAFO operator, whether
it is owned, rented, or leased, to which manure and process wastewater is or may be applied.
(g) New source means a source that is subject to subparts C or D of this part and, not
withstanding the criteria codified at 40 CFR 122.29(b)(l): (i) Is constructed at a site at which no
other source is located; or (ii) Replaces the housing including animal holding areas, exercise
yards, and feedlot, waste handling system, production process, or production equipment that
causes the discharge or potential to discharge pollutants at an existing source; or (iii) constructs a
production area that is substantially independent of an existing source at the same site. Whether
processes are substantially independent of an existing source, depends on factors such as the
extent to which the new facility is integrated with the existing facility; and the extent to which
389
-------
the new facility is engaged in the same general type of activity as the existing source.
(h) Overflow means the process wastewater discharge resulting from the filling of
wastewater or liquid manure storage structures to the point at which no more liquid can be
contained by the structure.
(i) Production area means that part of the CAFO that includes the animal confinement area,
the manure storage area, the raw materials storage area, and the waste containment areas. The
animal confinement area includes but is not limited to open lots, housed lots, feedlots,
confinement houses, stall barns, free stall barns, milkrooms, milking centers, cowyards, barnyard,
exercise yards, animal walkways, and stables. The manure storage area includes but is not
limited to lagoons, sheds, under house or pit storage, liquid impoundments, static piles, and
composting piles. The raw materials storage area includes but is not limited to feed silos, silage
bunkers, and bedding materials. The waste containment area includes but is not limited to
settling basins, and areas within berms, and diversions which separate uncontaminated
stormwater. Also included in the definition of production area is any egg washing or egg
processing facility.
(j) Setback means a specified distance from surface waters or potential conduits to surface
waters where manure and wastewater may not be land applied. Examples of conduits to surface
waters include, but are not limited to, tile line intake structures, sinkholes, and agricultural well
heads.
(k) Soil test phosphorus is the measure of the phosphorus content in soil as reported by
approved soil testing laboratories using a specified analytical method.
(1) Phosphorus threshold or TH level is a specific soil test concentration of phosphorus
established by states. The concentration defines the point at which soluble phosphorus may pose
a surface runoff risk.
(m) Phosphorus index means a system of weighing a number of measures that relate the
potential for phosphorus loss due to site and transport characteristics. The phosphorus index
must at a minimum include the following factors when evaluating the risk for phosphorus runoff
from a given field or site:
(1) Soil erosion.
(2) Irrigation erosion.
(3) Run-off class.
(4) Soil phosphorus test.
(5) Phosphorus fertilizer application rate.
(6) Phosphorus fertilizer application method.
(7) Organic phosphorus application rate.
(8) Method of applying organic phosphorus.
(n) Permit Nutrient Plan means a plan developed in accordance with §412.33 (b) and
'412.37. This plan shall define the appropriate rate for applying manure or wastewater to crop or
pasture land. The plan accounts for soil conditions, concentration of nutrients in manure, crop
requirements and realistic crop yields when determining the appropriate application rate.
(o) Crop removal rate is the application rate for manure or wastewater which is determined
by the amount of phosphorus which will be taken up by the crop during the growing season and
subsequently removed from the field through crop harvest. Field residues do not count towards
390
-------
the amount of phosphorus removed at harvest.
391
-------
(p) Ten(10)-year, 24-hour rainfall event and 25-year, 24-hour rainfall event mean
precipitation events with a probable recurrence interval of once in ten years, or twenty five years,
respectively, as defined by the National Weather Service in Technical Paper No. 40, ARainfall
Frequency Atlas of the United States," May, 1961, and subsequent amendments, or equivalent
regional or State rainfall probability information developed from this source.
(q) 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) Chloride means total chloride. :
(4) Nitrate (as N) means nitrate reported as nitrogen.
(5) Total dissolved solids means non-filterable residue.
(r) The parameters that are regulated or referenced in this part and listed with approved
methods of analysis in Table 1A at 40 CFR §136.3 are defined as follows:
(1) Fecal coliform means fecal coliform bacteria.
(2) Total coliform means all coliform bacteria.
§ 412.3 General pretreatment standards.
Any source subject to this pan that introduces process wastewater pollutants into a publicly
owned treatment works (POTW) must comply with 40 CFR part 403.
Subpart A - Horses and Sheep
§ 412.10 Applicability.
This subpart applies to discharges resulting from the production areas at CAFOs where
sheep are confined in open or housed lots; and horses are confined in stables such as at
racetracks. This subpart does not apply to such CAFOs with less than the following capacities:
Applicable CAFOs
Livestock
Sheep
Horses
Minimum capacity
10,000
500
§ 412.11 Special definitions.
For the purpose of this subpart:
(a) Housed lot means totally roofed buildings, which may be open or completely enclosed on
the sides, wherein animals are housed over floors of solid concrete or dirt and slotted (partially
open) floors over pits or manure collection areas, in pens, stalls or cages, with or without bedding
materials and mechanical ventilation.
(b) Open lot means pens or similar confinement areas with dirt, concrete paved or hard
surfaces, wherein animals are substantially or entirely exposed to the outside environment, except
where some protection is afforded by windbreaks or small shed-type shaded areas.
392
-------
393
-------
§ 412.12 Effluent limitations attainable by the application of the best practicable control
technology currently available (BPT).
(a) Except as provided in 40 CFR '125.30 through §125.32 and when the provisions of
paragraph (b) of this section apply, any existing point source subject to this subpait must achieve
the following effluent limitations representing the application of BPT:
There must be no discharge of process wastewater pollutants into U.S. waters.
(b) Whenever rainfall events cause an overflow of process wastewater from a facility
designed, constructed and operated to contain all process-generated wastewaters plus the runoff
from a 10-year, 24-hour rainfall event at the location of the point source, any process wastewater
pollutants in the overflow may be allowed to be discharged into U.S. waters.
§ 412.13 Effluent limitations attainable by the application of the best available technology
economically achievable (BAT).
(a) Except as provided in 40 CFR '125.30 through '125.32 and when the provisions of
paragraph (b) of this section apply, any existing point source subject to this subpart must achieve
the following effluent limitations representing the application of BAT:
There must be no discharge of process wastewater pollutants into U.S. waters.
(b) Whenever rainfall events cause an overflow of process wastewater from a facility
designed, constructed and operated to contain all process-generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event at the location of the point source, any process wastewater
pollutants in the overflow may be allowed to be discharged into U.S. waters.
§ 412.15 New source performance standards (NSPS).
(a) Except as provided in paragraph (b) of this section, any new point source subject to this
subpart must achieve the following performance standards:
There must be no discharge of process wastewater pollutants into U.S. waters.
(b) Whenever rainfall events cause an overflow of process wastewater from a facility
designed, constructed and operated to contain all process-generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event at the location of the point source, any process wastewater
pollutants in the overflow may be allowed to be discharged into U.S. waters.
Subpart B - Ducks
§ 412.20 Applicability.
This subpart applies to discharges resulting from dry and wet duck feedlots with a capacity
of at least 5000 ducks.
§ 412.21 Special definitions.
For the purpose of this subpart:
(a) Dry lot means a facility for growing ducks in confinement with a dry litter floor cover
and no access to swimming areas.
(b) Wet lot means a confinement facility for raising ducks which is open to the environment,
has a small number of sheltered areas, and with open water runs and swimming areas to which
394
-------
ducks have free access.
395
-------
§ 412.22 Effluent limitations attainable by the application of the best practicable control
technology currently available (BPT).
Except as provided in 40 CFR '125.30 through '125.32, any existing point source subject to
this subpart shall achieve the following effluent limitations representing the application of BPT:
Effluent Limitations
Regulated
parameter
BODj
Fecal coliform
Maximum
daily1
3.66
<3)
Maximum
monthly avg.1
2.0
(3)
Maximum
daily2 .
1.66
(3)
Maximum
monthly avg.2
0.91
0
1 Pounds per 1000 ducks.
2 Kilograms per 1000 ducks
3 Not to exceed MPN of 400 per 100 ml at any time.
§ 412.25 New source performance standards (NSPS).
Any new source subject to this subpart must achieve the following standards:
(a) Except as provided in paragraph (b) of this section, there must be no discharge of process
wastewater pollutants into U.S. waters.
(b) Whenever rainfall events cause an overflow of process wastewater from a facility
designed, constructed and operated to contain all process-generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event at the location of the point source, any process wastewater
pollutants in the overflow may be allowed to be discharged into U.S. waters.
§ 412.26 Pretreatment standards for new sources (PSNS).
(a) Except as provided in 40 CFR §403.7 and in paragraph (b) of this section, any new
source subject to this subpart must achieve the following pretreatment standards:
There must be no discharge of process wastewater pollutants into a POTW.
(b) Whenever rainfall events cause an overflow of process wastewater from a facility
designed, constructed and operated to contain all process-generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event at the location of the new source, the discharge of any
process wastewater pollutants in the overflow may be allowed.
Subpart C - Beef and Dairy
§ 412.30 Applicability.
This subpart applies to concentrated animal feeding operations (CAFOs), as defined in 40
CFR §122.23, and includes the following types of animals: Mature dairy cows, either milking or
dry; and cattle other than mature dairy or veal
§ 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
396
-------
this subpart must achieve the following effluent limitations representing the application of BPT:
(a) For CAFO production areas:
(1) Except as provided in paragraph (a)(2) of this section, there must be no discharge of
process wastewater pollutants into U.S. waters.
(2) Whenever rainfall causes an overflow of process wastewater, pollutants in the overflow
may be discharged into U.S. waters during those periods subject to following conditions:
(i) The production area is designed and constructed to contain all process wastewaters
including the runoff from a 25 year, 24 hour rainfall event; and
(ii) The production area is operated in accordance with the requirements of §412.37(a)(l)
through (3).
(b) For CAFO land application areas:
(1) Discharges resulting from the application of manure or process wastewater to land owned
or under the control of the CAFO must achieve the following:
(i) Develop and implement a Permit Nutrient Plan (PNP) that includes the requirements
specified at §412.37; and establishes land application rates for manure in accordance with
§412.31 (b)(l)(iv).
3/4TH, < 2 TH application
> 2 TH application
Manure and Wastewater Application Rate
Manure and wastewater may not exceed the nitrogen requirements of the
crop.
Phosphorus in manure and wastewater may not exceed the amount of
phosphorus removed from the field with crop harvest.
No land application of manure or wastewater
397
-------
Table 3 Soil Test Phosphorus
SoO Test Phosphorus Level
Low
Medium
High
Very High
Manure and Wastewater Application Rate
Application of manure and wastewater may not exceed the nitrogen
requirements of the crop.
Application of manure and wastewater may not exceed the nitrogen
requirements of the crop
Application of phosphorus in manure and wastewater may not exceed the
amount of phosphorus removed from the field with crop harvest.
No land application of manure and wastewater.
(2) Multi-year phosphorus applications are prohibited when either the P-Index is rated high,
the soil phosphorus threshold is between 3/4 and 2 times the TH value, or the soil test
phosphorus level is high as determined in paragraph (1) (iv) unless:
(i) Manure application equipment designed for dry poultry manure or litter cannot obtain an
application rate low enough to meet a phosphorus based application rate as determined by the
PNP In the event a phosphorus application occurs during one given year which exceeds the crop
removal rate for that given year, no additional manure or process wastewater shall be applied to
the same land in subsequent years until all applied phosphorus has been removed from the field
via harvest and crop removal, i
§ 412.32 Effluent limitations attainable by the application of the best control technology for
conventional pollutants (BCT).
Except as provided in 40 CFR §125.30 through §125.32 and §412.41(2), any existing point
source subject to this subpart must achieve the following effluent limitations representing the
application of BCT:
(a) For CAFO production areas:
Discharges must achieve the same requirements as specified in §412.31(a).
(b) For CAFO land application areas:
Discharges resulting from the application of manure or process wastewater to crop or pasture
land owned or under the control of the CAFO must achieve the same requirements as specified in
§412.31(b) and §412.37.
§ 412.33 Effluent limitations attainable by the application of the best available technology
economically achievable (BAT).
Except as provided in 40 CFR §125.30 through §125.32 and §412.33(a)(2), any existing
point source subject to this subpart must achieve the following effluent limitations representing
the application of BAT:
(a) For CAFO production areas:
(1) There must be no discharge of process wastewater pollutants into U.S. waters, including
any pollutants discharged to ground water which has a direct hydrologic connection to surface
waters. <
(2) Whenever rainfall causes an overflow of process wastewater, pollutants in the overflow
may be discharged into U.S. waters during those periods when the following conditions are met:
. (i) The production area is designed and constructed to contain all process wastewaters
398
-------
including the runoff from a 25 year, 24 hour rainfall event; and
(ii) The production area is operated in accordance with the requirements of §412.37(a).
399
-------
(3) (i) The ground water beneath the production area must be sampled twice annually to
demonstrate compliance with the no discharge requirement unless the CAFO has determined to
the satisfaction of the permitting authority that the ground water beneath the production area is
not connected to surface waters through a direct hydrologic connection.
(ii) Ground water samples shall be collected up-gradient and down-gradient of the
production area and analyzed for:
Total coliforms.
Fecal coliform.
Total dissolved solids.
Nitrates.
Ammonia,
Chloride
(b) For CAFO land application areas:
Discharges resulting from the application of manure or process wastewater to crop or pasture
land owned or under the control of the CAFO must achieve the same requirements as specified in
§412.31(b) and §412.37/
§ 412.35 New source performance standards (NSPS).
Any new source subject to this subpart must achieve the following standards:
(a) For CAFO production areas:
Subject to the provisions of paragraph (c) of this section, discharges must achieve the same
requirements as specified in §412.33(a).
(b) For CAFO land application areas:
Subject to the provisions of paragraph (c) of this section, discharges resulting from the
application of manure or process wastewater to crop or pasture land owned or under the control
of the CAFO must achieve the same requirements as specified in §412.31(b) and §412.37.
(c) Any new source subject to the provisions of this section that commenced discharging
after [insert dale 10 years prior to the date that is 60 days from the publication date of the final
rule] and before [insert date that is 60 days from the publication date of the final rule] must
continue to achieve the standards specified in the 2000 version of §412.15, provided that the new
source was constructed to meet those standards. For toxic and nonconventional pollutants, those
standards shall not apply after, the expiration of the applicable time period specified in 40 CFR
122.29(d)(l); thereafter, the source must achieve the standards specified in paragraphs (a) and (b)
of this section.
§412.37 Additional measures
(a) Each CAFO subject to this subpart must implement the following requirements:
(1) There must be routine visual inspections of the CAFO production area to check the
following:
(i) Weekly inspections of all stormwater diversion devices, such as roof gutters, to ensure
they are free of debris that could interfere with the diversion of clean stormwater;
(ii) Weekly inspections of all stormwater diversion devices which channel contaminated
stormwater to the wastewater and manure storage and containment structure, to ensure that they
400
-------
are free of debris that could interfere with ensuring this contaminated stormwater reaches the
storage or containment structure;
(iii) Daily inspections of all water lines providing drinking water to the animals to ensure
there are no leaks in these lines that could contribute unnecessary volume to liquid storage
systems or cause dry manure to become too wet;
(iv) Runoff diversion structures and animal waste storage structures must be visually
inspected for: seepage, erosion, vegetation, animal access, reduced freeboard, and functioning
rain gauges and irrigation equipment, on a weekly basis manure storage area to ensure integrity
of the structure. All surface impoundments must have a depth marker which indicates the design
volume and clearly indicates the minimum freeboard necessary to allow for the 25 year 24 hour
rainfall event. The inspection shall also note the depth of the manure and process wastewater in
the impoundment as indicated by this depth marker.
(2) Any deficiencies found as a result of these inspections shall be corrected as soon as
possible. Deficiencies and corrective action taken shall be documented.
(3) Mortalities may not be disposed of in any liquid manure or stormwater storage or
treatment system, and must be handled in such a way as to prevent discharge of pollutants to
surface water.
(4) Land application of manure generated by the CAFO to land owned or controlled by the
CAFO must be done in accordance with the following practices:
(i) Manure may not be applied closer than 100 feet to any surface water, tile line intake
structure, sinkhole or agricultural well head.
(ii) The CAFO must take manure samples at least once per year and analyzed for nitrogen,
phosphorus and potassium. Samples must be collected from all manure storage areas, both liquid
and dry storage, as well as any wastewater or storm water storage. The CAFO must take soil
samples once every three years if they apply manure to crop or pasture land under their control,
and analyze the soil sample for phosphorus. Samples shall be collected in accordance with
accepted Extension protocols and the analyses must be conducted in accordance with the state
nutrient management standard. These protocols shall be documented in the PNP.
(iii) Manure that is transported off-site must be sampled at least once a year for nitrogen,
phosphorus and potassium. The results of these analyses must be provided to the recipient of the
manure.
(iv) Manure application equipment must be calibrated prior to land application of manure
and/or process wastewaters at a minimum of once per year.
(b) Record keeping requirements:
Each CAFO must maintain on its premises a complete copy of the current PNP and the records
specified in paragraphs (b)(l) through (12) of this section. The CAFO must make the PNP
available to the permitting authority and the Regional Administrator, or his or her designee, for
review upon request. Records must be maintained for 5 years from the date they are created.
(1) Cover Sheet which includes the following information:
(i) the name and location of the CAFO,
(ii) name and title of the owner or operator
(iii) name and title of the person who prepared the plan,
(iv) date the plan was prepared,
401
-------
(v) date the plan was amended
(2) Executive Summary which includes the following information:
(i) Total average herd or flock size
(ii) Identification of manure collection, handling, storage, and treatment practices
(iii) Amount of manure generated annually
(iv) Identification of planned crops (rotation)
(v) Realistic yield goal as described in §412.31(b)(l)(iii)
(vi) Field condition as determined by the phosphorus index, soil test phosphorus, or
phosphorus threshold (for each field unit that will receive manure)
(vii) number of acres that will receive manure
(viii) amount of manure transported off-site
(ix) animal waste application rate (gallons or tons/acre)
(x) identification of watershed or nearest surface water body
(3) Records documenting the inspections required under paragraph (a)(l) of this section.
(4) Records tracking the repairs performed on drinking water lines, automated feeding
equipment, feed storage and silos, manure storage, manure treatment facilities, as well as
maintenance of berms and diversions that direct clean stormwater away from any manure and
other process wastewater.
(5) Records documenting the following information about manure application and crop
production
(i) Expected crop, yield based on historical data for the CAFO for its land application area, or
county average yield data when the CAFO does not have a prior history of crop yields
(ii) The date(s) manure is applied,
(iii) Weather conditions at time of application and for 24 hours prior to and following
application,
(iv) Results from manure and soil sampling,
(v) Test methods used to sample and analyze manure and soil,
(vi) Whether the manure application rate is limited to nitrogen, phosphorus, or some other
parameter,
(vii) The amount of manure and manure nutrients applied,
(viii) The amount of any other nutrients applied to the field reported in terms of nitrogen,
phosphorus and potassium (including commercial fertilizer, legume credits, and biosolids),
(ix) Calculations showing the total nutrients applied to land,
(x) Calibration of manure application equipment,
(xi) The rate of application of manure,
(xii) The method used to apply the manure, estimated nitrogen losses based on application
method used, and the route of nitrogen loss,
(xiii) The field(s) to which manure was applied and total acreage receiving manure,
(xiv) What crop(s) was planted,
(xv) The date that crops were planted in the field, and
(xvi) The crop yields obtained.
(6) Records of the total volume or amount of manure and process wastewater generated by
all animals at the facility during each 12 month period. This must include milk parlor washwater
402
-------
and egg washwater. The volume or amount may be determined through direct measurements or
an estimated value provided all factors are documented.
(7) Records of rainfall duration, amount of rainfall, and the estimated volume of any
overflow that occurs as the result of any catastrophic or chronic rainfall event.
(10) A copy of the emergency response plan for the CAFO.
(11) Records of how mortalities are handled by the CAFO.
(12) Name of state approved specialist that prepared or approved the PNP, or record and
documentation of training and certification for owners or operator writing their own PNP.
Subpart D - Swine,.Poultry and Veal
§ 412.40 Applicability.
This subpart applies to operations defined as concentrated animal feeding operations
(CAFOs) under 40 CFR §122.23 and includes the following animals: Swine, each weighing 55
Ibs. or more; swine, each weighing less than 55 Ibs.; veal cattle; chickens; and turkeys.
§ 412.41 Effluent limitation attainable by the application of the best practicable control
technology currently available (BPT).
Except as provided in 40 CFR §125.30 through §125.32 , any existing point source subject
to this subpart must achieve the following effluent limitations representing the application of
BPT:
(a) For CAFO production areas:
Discharges must achieve the same requirements as specified in §412.31(a).
(b) For CAFO land application areas:
Discharges resulting from the application of manure or process wastewater to crop or pasture
land owned or under the control of the CAFO must achieve the same requirements as specified in
§412.3l(b) and §412.37.
§ 412.42 Effluent limitations attainable by the application of the best control technology for
conventional pollutants (BCT).
Except as provided in 40 CFR §125.30 through §125.32 , any existing point source subject
to this subpart must achieve the following effluent limitations representing the application of
BCT:
(a) For CAFO production areas:
The limitations are the same as specified in §412.41(a).
(b) For CAFO land application areas:
The limitations are the same as specified in §412.41 (b).
§ 412.43 Effluent limitations attainable by the application of the best available technology
economically achievable (BAT).
Except as provided in 40 CFR §125.30 through §125.32, any existing point source subject to
this subpart must achieve the following effluent limitations representing the application of BAT:
(a) For CAFO production areas:
403
-------
(1) There must be no discharge of process wastewater pollutants into U.S. waters.
(2) Any CAFO subject to this subpart must also comply with the requirements specified in
§412.37(a)(l) through (3).
(b) For CAFO land application areas:
The limitations are the same as specified in §412.41(b).
§ 412.45 New source performance standards (NSPS).
Any new source subject to this subpart must achieve the following standards:
(a) For CAFO production areas:
(1) There must be no discharge of process wastewater pollutants into U.S. waters, including
any pollutants discharged to ground water which have a direct hydrological connection to surface
waters.
(2) The ground water beneath the production area must be sampled twice annually to
demonstrate compliance with the provisions of paragraph (a)(l) of this section, unless the CAFO
has determined to the satisfaction of the permitting authority that the ground water beneath the
production area is not connected to surface waters through a direct hydrologic connection.
Ground water samples must be collected up-gradient and down-gradient of the production area.
and analyzed for:
Total coliforms
Fecal coliform
Total dissolved solids
Nitrates
Ammonia
Chloride
(3) Any CAFO subject to this subpart must also comply with the requirements specified in
§412.37(a)(l) through (3).
(b) For CAFO land application areas:
Discharges resulting from the application of manure or process wastewater to crop or pasture
land owned or under the control of the CAFO must achieve the same requirements as specified in
§412.31 (b) and §412.37.
(c) Any new source subject to the provisions of this section that commenced discharging
after [insert date 10 years prior to the date that is 60 days from the publication date of the final
rule] and before [insert date that is 60 days from the publication date of the final rule] must
continue to achieve the standards specified in § 412.15, provided that the new source was
constructed to meet those standards. For "toxic" and nonconventional pollutants, those standards
shall not apply after the expiration of the applicable time period specified in 40 CFR
§122.29(d)(l); thereafter, the source must achieve the standards specified in paragraphs (a) and
(b) of this section.
404
------- |